Ethics in Government MISSISSIPPI ETHICS COMMISSION A&WMA Annual Conference Beau Rivage Casino, Biloxi August 8, 2008

OVERVIEW OF THE MISSISSIPPI ETHICS COMMISSION The Commission administers and enforces the Ethics in Government Law by Keeping Statements of Economic Interest; Keeping Statements of Economic Interest; Investigating alleged violations of law; Investigating alleged violations of law; Issuing written advisory opinions. Issuing written advisory opinions.

Senate Bill 2983, enacted in the 2008 Regular Session of the Legislature adds Open Meetings Act Open Meetings Act Public Records Act Public Records Act

MISSISSIPPI ETHICS COMMISSION Eight members serve staggered terms. Eight members serve staggered terms. Members appointed by Governor, Lieutenant Governor, Speaker of the House and Chief Justice. Members appointed by Governor, Lieutenant Governor, Speaker of the House and Chief Justice. Commission staff supervised by an executive director who serves at the Commission’s will and pleasure. Commission staff supervised by an executive director who serves at the Commission’s will and pleasure.

MISSISSIPPI’S ETHICS IN GOVERNMENT LAW “The Legislature hereby declares it essential to the proper operation of democratic government that public officials and employees be independent and impartial; that governmental decisions and policy be made in the proper channels of the governmental structure; that public office not be used for private gain other than the remuneration provided by law; that there be public confidence in the integrity of government; and that public officials be assisted in determinations of conflicts of interest.” Section , Miss. Code of 1972

Eight Basic Prohibitions 1. Board Member Contracts 2. Use of Office 3. Contracting 4. Purchasing Goods and Services 5. Purchasing Securities 6. Insider Lobbying 7. Post Government Employment 8. Insider Information

Section 109, Miss. Constitution of 1890 No public officer or member of the legislature shall be No public officer or member of the legislature shall be interested, directly or indirectly, in any interested, directly or indirectly, in any contract with the state, or any district, county, city, or town thereof, contract with the state, or any district, county, city, or town thereof, authorized by any law passed or order made by any board of which he may be or may have been a member, authorized by any law passed or order made by any board of which he may be or may have been a member, during the term for which he shall have been chosen, or within one year after the expiration of such term. during the term for which he shall have been chosen, or within one year after the expiration of such term. Section 109 only applies to members of boards and the Legislature. Notice the prohibition is against an interest, not against an act. There must be some sort of contract. It need not be a written contract. The conflict arises when the board funds or otherwise authorizes the contract. Even if the individual member does not vote, he or she may be in violation. The prohibition continues until a former official has been out of office for one year.

Section (1) (1) No public servant shall use his official position to obtain, or attempt to obtain, pecuniary benefit for himself other than that compensation provided for by law, or to obtain, or attempt to obtain, pecuniary benefit for any relative or any business with which he is associated.

Section (1) ‘Business with which he is associated’ means public servant or his relative is officer, director, owner, partner, employee or officer, director, owner, partner, employee or holder of more than ten percent (10%) of the fair market value or holder of more than ten percent (10%) of the fair market value or from which he or his relative derives more than $2,500 in annual income or from which he or his relative derives more than $2,500 in annual income or over which such public servant or his relative exercises control. over which such public servant or his relative exercises control.

Section (1) The statute does not require a public servant misuse his or her position. The statute does not require a public servant misuse his or her position. To avoid a violation, a public servant must totally and completely recuse himself or herself from the matter giving rise to the conflict. To avoid a violation, a public servant must totally and completely recuse himself or herself from the matter giving rise to the conflict. A board member must leave the board meeting before the matter comes up for discussion, may only return after the matter is concluded, and must not discuss the matter with anyone. A board member must leave the board meeting before the matter comes up for discussion, may only return after the matter is concluded, and must not discuss the matter with anyone. An abstention is considered a vote with the majority and is not a recusal. The minutes of the meeting should accurately reflect the recusal. An abstention is considered a vote with the majority and is not a recusal. The minutes of the meeting should accurately reflect the recusal. Recusal does not prevent other violations. Recusal does not prevent other violations.

Section (1) “Relative” is the public servant’s spouse, spouse, child, child, parent, parent, sibling (brothers and sisters) or sibling (brothers and sisters) or spouse of a relative (in-laws). spouse of a relative (in-laws).

Subsection (3)(a) – The Contractor Prohibition (3) No public servant shall: (a) Be a contractor, subcontractor or vendor with the governmental entity of which he is a member, officer, employee or agent, other than in his contract of employment, or have a material financial interest in any business which is a contractor, subcontractor or vendor with the governmental entity of which he is a member, officer, employee or agent.

Subsection (3)(a) – The Contractor Prohibition “The term contractor is generally used in the strict sense of one who contracts to perform a service for another and not in the broad sense of one who is a party to a contract.” Moore, ex rel. City of Aberdeen v. Byars, 757 So.2d 243, 248 (¶ 15) (Miss. 2000). “The term contractor is generally used in the strict sense of one who contracts to perform a service for another and not in the broad sense of one who is a party to a contract.” Moore, ex rel. City of Aberdeen v. Byars, 757 So.2d 243, 248 (¶ 15) (Miss. 2000).

Subsection (3)(a) – The Contractor Prohibition ‘Material financial interest’ means a personal and pecuniary interest, direct or indirect, accruing to a public servant or spouse, either individually or in combination with each other. Except for: 1. Ownership of less than 10% in a business with aggregate annual net income to the public servant less than $1,000.00; 2. Ownership of less than 2% in a business with aggregate annual net income to the public servant less than $5,000.00; 3. Income as an employee of a relative if neither the public servant or relative is an officer, director or partner and any ownership interest would not be material under subparagraph 1 or 2; or 4. Income of the spouse of a public servant when the spouse is a contractor, subcontractor or vendor and the public servant exercises no control, direct or indirect, over the contract.

Subsection (3)(b) – Purchasing Goods or Services (3) No public servant shall: (b) Be a purchaser, direct or indirect, at any sale made by him in his official capacity or by the governmental entity of which he is an officer or employee, except in respect of the sale of goods or services when provided as public utilities or offered to the general public on a uniform price schedule.

Subsection (3)(b) – Purchasing Goods or Services For example, this subsection prohibits a government employee or official from purchasing anything at an auction or other sale conducted on behalf of his or her governmental entity.

Subsection (3)(c) – Purchasing Securities (3) No public servant shall: (c) Be a purchaser, direct or indirect, of any claim, certificate, warrant or other security issued by or to be paid out of the treasury of the governmental entity of which he is an officer or employee. For example, a county official or employee may not purchase bonds issued by the county.

Subsection (3)(d) – Inside Lobbying (3) No public servant shall: (d) Perform any service for any compensation during his term of office or employment by which he attempts to influence a decision of the authority of the governmental entity of which he is a member. (You cannot be paid to lobby your own board or office.)

Subsection (3)(e) – Post Government Employment (3) No public servant shall: (e) Perform any service for any compensation for any person or business after termination of his office or employment in relation to any case, decision, proceeding or application with respect to which he was directly concerned or in which he personally participated during the period of his service or employment.

Subsection (3)(e) – Post Government Employment Applies after someone leaves government. Applies after someone leaves government. If you worked on a matter while you were in government, you cannot work on that same matter in the private sector. If you worked on a matter while you were in government, you cannot work on that same matter in the private sector. But a former government employee can work for a government contractor on other matters. But a former government employee can work for a government contractor on other matters.

Section (4) – Exceptions to Subsection (3) These exceptions only apply to Subsection (3) and not to any other provisions of law. These exceptions only apply to Subsection (3) and not to any other provisions of law. Can apply to a government employee but does not protect a board member from a violation of Section 109 or Section (2). The employee would still have to recuse himself or herself from any action which might otherwise violate Section (1). Can apply to a government employee but does not protect a board member from a violation of Section 109 or Section (2). The employee would still have to recuse himself or herself from any action which might otherwise violate Section (1).

Section (5) – Insider Information (5) No person may intentionally use or disclose information gained in the course of or by reason of his official position or employment as a public servant in any way that could result in pecuniary benefit for himself, any relative, or any other person, if the information has not been communicated to the public or is not public information.

Section (5) – Insider Information Comes up most often in connection with economic development. Comes up most often in connection with economic development. Nonpublic information may not be revealed if it might result in a monetary benefit to anyone. Nonpublic information may not be revealed if it might result in a monetary benefit to anyone. Could apply to a former public servant. Could apply to a former public servant.

THE STATEMENT OF ECONOMIC INTEREST Intended to disclose sources of a public servant’s income but not amounts.

Persons Required to File Elected officials, except members of levee boards and election commissioners; Elected officials, except members of levee boards and election commissioners; Members of all public school boards, whether elected or appointed; Members of all public school boards, whether elected or appointed; Candidates for elected office and persons appointed to fill a vacancy in an elected office; Candidates for elected office and persons appointed to fill a vacancy in an elected office; Executive directors or heads of state agencies and the presidents and trustees of all colleges and universities; Executive directors or heads of state agencies and the presidents and trustees of all colleges and universities; Members of any state board, commission, or agency, except advisory boards or commissions; Members of any state board, commission, or agency, except advisory boards or commissions; Board members and executive directors of some local economic development entities and all airport authorities. Board members and executive directors of some local economic development entities and all airport authorities.

Filing Dates Incumbent office holders must file on or before May 1 of each year. Incumbent office holders must file on or before May 1 of each year. Candidates for office in primary, special, or general elections must file within 15 days after qualifying. Candidates for office in primary, special, or general elections must file within 15 days after qualifying. Appointees to offices required to file must submit a disclosure form within 30 days of their appointment. Appointees to offices required to file must submit a disclosure form within 30 days of their appointment.

Contents Discloses the sources of an individual’s income, not specific amounts. Discloses the sources of an individual’s income, not specific amounts. Covers previous calendar year. Covers previous calendar year. Requires listing the name and address of all businesses in which filer or household member held a position or interest or received income. Requires listing the name and address of all businesses in which filer or household member held a position or interest or received income. Must name public bodies from which filer or household members received income. Must name public bodies from which filer or household members received income. No later than January 1, 2010, the statement of economic interest will only be filed online at the Commission’s website. No later than January 1, 2010, the statement of economic interest will only be filed online at the Commission’s website.

THE COMPLAINT PROCEDURE Investigation and Enforcement of Ethics in Government Violations

No criminal provisions No criminal provisions Ethics Commission investigates: Ethics Commission investigates: 1. Violations of law by public servants; and 2. Failure to file financial disclosure information required by law.

Complaint Process Sworn complaint must be filed alleging a violation of law by a public servant before an investigation can be conducted. Sworn complaint must be filed alleging a violation of law by a public servant before an investigation can be conducted. If investigation is authorized by Commission, it is conducted before respondent is notified. If investigation is authorized by Commission, it is conducted before respondent is notified. Respondent has 30 days to file a response. Respondent has 30 days to file a response. All investigative proceedings and records are strictly confidential, and breach of confidentiality constitutes a crime. All investigative proceedings and records are strictly confidential, and breach of confidentiality constitutes a crime.

Enforcement Commission will hold hearings to determine guilt and to impose penalties. Commission will hold hearings to determine guilt and to impose penalties. Appeals go to Hinds County Circuit Court. Appeals go to Hinds County Circuit Court. Commission will impose fines, censures and equitable remedies on elected and non-elected public servants. Commission will impose fines, censures and equitable remedies on elected and non-elected public servants. Commission can only recommend that Hinds County Circuit Court remove an official or suspend or demote an employee Commission can only recommend that Hinds County Circuit Court remove an official or suspend or demote an employee

Fines and Other Penalties New procedure for fining late filers. Thirty- day grace period, followed by written notice, followed by fifteen-day grace period, followed by fines of $10 per day. New procedure for fining late filers. Thirty- day grace period, followed by written notice, followed by fifteen-day grace period, followed by fines of $10 per day. Fine for refusing to file the SEI is doubled to $10,000. Misdemeanor is committed when filer has not filed one year after notice of delinquency. Fine for refusing to file the SEI is doubled to $10,000. Misdemeanor is committed when filer has not filed one year after notice of delinquency. Maximum fine for ethics violation is doubled to $10,000. Maximum fine for ethics violation is doubled to $10,000.

ADVISORY OPINIONS “An ounce of prevention is worth a pound of cure.”

ADVISORY OPINIONS Commission issues anonymous advisory opinions every month to public servants who need advice about complying with the Ethics Law. Commission issues anonymous advisory opinions every month to public servants who need advice about complying with the Ethics Law. Opinion must be requested in writing by a public servant or candidate for elected office. Opinion must be requested in writing by a public servant or candidate for elected office. If you get an opinion from the Ethics Commission, and you follow it, you are immune from liability under the Ethics Law. If you get an opinion from the Ethics Commission, and you follow it, you are immune from liability under the Ethics Law. Commission’s staff gives informal guidance based on past opinions, but the only way to be protected from liability is to obtain an official written opinion. Commission’s staff gives informal guidance based on past opinions, but the only way to be protected from liability is to obtain an official written opinion.

STAFF OPINIONS Commission can authorize executive director to issue emergency opinions between Commission meetings which offer limited protection from liability. Commission can authorize executive director to issue emergency opinions between Commission meetings which offer limited protection from liability. Must be based upon prior decisions, are not binding on the commission, will not be published, and must be ratified or rejected by the commission at the next commission meeting. Must be based upon prior decisions, are not binding on the commission, will not be published, and must be ratified or rejected by the commission at the next commission meeting.

NEW JURISDICTION Two separate processes are created for addressing disputes arising under the Open Meetings Act and Public Records Act.

OPEN MEETINGS ACT Ethics Commission is empowered to enforce the Open Meetings Act as follows. Complaint is filed with Commission. Complaint is sent to public body, which can respond. Commission can dismiss complaint or hold a hearing. Complaint is filed with Commission. Complaint is sent to public body, which can respond. Commission can dismiss complaint or hold a hearing. Ethics Commission may order public body to comply with law. Ethics Commission may order public body to comply with law. Ethics Commission can mediate Open Meetings disputes. Ethics Commission can mediate Open Meetings disputes. Either party may appeal de novo or enforce Ethics Commission order in local chancery court. Either party may appeal de novo or enforce Ethics Commission order in local chancery court.

PUBLIC RECORDS ACT Procedure for resolving Public Records disputes. Any person may request an opinion from the Ethics Commission about whether a public body has violated the Public Records Act by denying a request for records. Any person may request an opinion from the Ethics Commission about whether a public body has violated the Public Records Act by denying a request for records. A copy of the opinion request will be sent to the public body, which can respond. A copy of the opinion request will be sent to the public body, which can respond. The Commission can issue a nonbinding opinion. The Commission can issue a nonbinding opinion. If the dispute is not resolved voluntarily, then the person requesting the opinion must file a lawsuit in chancery court to compel production of the public records. If the dispute is not resolved voluntarily, then the person requesting the opinion must file a lawsuit in chancery court to compel production of the public records.

HOUSE BILL NO. 474 Defines “incident report,” “investigative report” and “law enforcement agency.” Defines “incident report,” “investigative report” and “law enforcement agency.” Incident report must include identity of person arrested, date, time, location and nature of offense and a narrative. Incident report must include identity of person arrested, date, time, location and nature of offense and a narrative. Incident report must be disclosed. Incident report must be disclosed. Investigative reports may contain detailed information about crime and victim. Investigative reports may contain detailed information about crime and victim. Investigative report does not have to be disclosed. Investigative report does not have to be disclosed.

Contact Us Tom Hood or Chris Graham Mississippi Ethics Commission Post Office Box E. Amite Street Jackson, Mississippi Phone: Fax: