Primary Areas of Jurisdiction for the Ethics Commission Ethics in - - PDF document

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Ethics and Openness in School Districts

MISSISSIPPI ETHICS COMMISSION

MASBO 46TH Annual Conference February 15, 2016

MISSISSIPPI ETHICS COMMISSION

Eight members serve staggered terms. 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.

Primary Areas of Jurisdiction for the Ethics Commission

Ethics in Government Law Public Records Act Open Meetings Act

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ETHICS IN GOVERNMENT LAW

ETHICS COMMISSION ROLES UNDER ETHICS IN GOVERNMENT LAW:

• 1. ISSUE ADVISORY OPINIONS
• 2. ENFORCE ETHICS LAWS (COMPLAINTS)
• 3. FILE STATEMENTS OF ECONOMIC INTEREST

ADVISORY OPINIONS

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

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ADVISORY OPINIONS

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.

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.

ENFORCEMENT

Complaint Process

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.

Respondent has 30 days to file a response. All investigative proceedings and records are

strictly confidential, and breach of confidentiality constitutes a crime.

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Hearings / Penalties

Commission will hold hearings to

determine guilt and to impose penalties.

Appeals go to Hinds County Circuit Court. Commission can impose fines up to

$10,000, order repayment of money, and impose censures and other legal/equitable remedies on all public servants.

Commission can recommend the Hinds

County Circuit Court remove an official or suspend or demote an employee.

THE STATEMENT OF ECONOMIC INTEREST

Persons Required to File

Elected officials, except members of levee boards

and election commissioners;

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;

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;

Board members and executive directors of local

economic development entities and airport authorities.

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ETHICS LAWS

Eight Basic Prohibitions

• Board Member Contracts
• Use of Office
• Contractor, Subcontractor or Vendor
• Purchasing Goods and Services
• Purchasing Securities
• Insider Lobbying
• Post Government Employment
• Insider Information

Board Member Contracts Section 25-4-105(2)

No public servant shall be interested, directly or indirectly, during the term for which he shall have been chosen, or within one (1) year after the expiration of such term, in any 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.

(This prohibition is also in Section 109 of the Mississippi Constitution)

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Board Member Contracts Section 25-4-105(2)

Section 25-4-105(2) of the Mississippi Code and

Section 109 of the Mississippi Constitution only apply 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

• therwise 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.

May a foreman in the school district bus shop continue to be employed by the school district after the employee’s spouse becomes a member of the school board?

Advisory Opinion

12-105-E No. An employee of the school district may not continue to be employed by the school district after the employee’s spouse becomes a member of the school

• board. The board member will have a

prohibited interest in her spouse’s employment contract which will be authorized by the school board in violation

• f Section 109, Miss. Const. of 1890, and

Section 25-4-105(2), Miss. Code of 1972.

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May a business which repairs trucks, buses, and other heavy equipment, work on the school district’s buses where the business

• wner is married to a member of the school

board?

Advisory Opinion

12-068-E No. The spouse of a school board member may not conduct business with the school district. The spouse of a school board member is prohibited from doing business with the school district during the member’s term and for one year thereafter, pursuant to Section 109, Miss. Const. of 1890, and Section 25-4-105(2), Miss. Code of 1972.

May a member of the school board of trustees hold a 16th Section lease when the periodic rent adjustment occurs during his or her term of office

• r within one year thereafter?

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Advisory Opinion

11-047-E

• No. A school board member may not

hold a 16th Section lease when the periodic rent adjustment occurs during his or her term of office

• r within one year thereafter. The periodic rent

adjustment is an authorization of the existing lease and must not occur during the board member’s term or within one year thereafter. A school board president may not vote on a 16th Section lease held by his or her relative, but he may sign the lease as required by statute. May the employer

• f

a former school board member sell supplies to the school district within

• ne year of the former member leaving office?

Advisory Opinion

10-045-E No. The employer of a former school board member may not sell supplies to the school district within one year of the former member leaving office. Section 109 and Section 25-4-105(2) prohibit a member

• f a public board from having any direct or

indirect interest in a contract funded or

• therwise authorized by that board during

his or her term or for one year thereafter.

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May a school board approve a depository contract with a bank in which a school board member owns stock?

Advisory Opinion

05-067-E No. Pursuant to Section 109 and Section 25-4-105(2), a school board member who owns stock in a bank will have a prohibited interest in the depository contract when that contract is authorized by the school board of which he or she is a member. But see Section 37-7-333. May a member

• f

a school board be employed by one of the school district’s depository banks where he or she is an hourly employee who does not receive a bonus based upon bank profits?

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Advisory Opinion

12-001-E Yes. School board member may be employed by school district’s depository bank when an hourly employee who does not receive a bonus based upon bank

• profits. But board member must recuse from

any board action which would benefit the

• bank. Section 25-4-105(1). The exception

provided in Section 25-4-105(4)(a) will apply under these facts. May a member of a school board serve as an uncompensated officer of a volunteer

• rganization that will make donations to the

school district and improve playgrounds on school district property?

Advisory Opinion

12-113-E Yes. A member of a school board may serve as an uncompensated volunteer for a volunteer organization that makes donations to the school district. So long as the school board member receives no compensation from the

• rganization, no violation of Section 109, Miss.
• Const. of 1890, or Section 25-4-105(2), Miss. Code
• f 1972, should arise. Nevertheless, the board

member must recuse himself or herself from any action which would result in a pecuniary benefit to the volunteer organizations in compliance with Section 25-4-105(1) and Section 25-4-101.

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May a school district employ the child or sibling of a school board member?

Advisory Opinion

09-038-E A school district may employ the financially independent child or sibling of a school board member. If the board member and the relative are indeed financially independent, no violation of Section 109, Miss. Const. of 1890, or Section 25-4-105(2), Miss. Code of 1972, should

• ccur, but the board member must recuse himself
• r herself from any matter which would result in a

pecuniary benefit to the relative, in compliance with Section 25-4-105(1), Miss. Code of 1972.

Use of Office Section 25-4-105(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

• btain, or attempt to obtain, pecuniary

benefit for any relative or any business with which he is associated.

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Section 25-4-105(1)

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.

A board member must leave the board meeting

before the matter comes up for discussion, may

• nly 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.

Recusal does not prevent other violations.

Section 25-4-105(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

• btain, or attempt to obtain, pecuniary

benefit for any relative or any business with which he is associated.

Section 25-4-103(q)

“Relative” is the public servant’s

spouse, child, parent, sibling (brothers and sisters) or spouse of a relative (in-laws).

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May a school district employ the child or sibling of a school board member?

Advisory Opinion

09-038-E A school district may employ the financially independent child or sibling of a school board member. If the board member and the relative are indeed financially independent, no violation of Section 109, Miss. Const. of 1890, or Section 25-4-105(2), Miss. Code of 1972, should

• ccur, but the board member must recuse himself
• r herself from any matter which would result in a

pecuniary benefit to the relative, in compliance with Section 25-4-105(1), Miss. Code of 1972.

May a school board member whose financially independent sister is employed by the school district approve payments to the sister that appear on the monthly docket, including, but not limited to, travel reimbursements?

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Advisory Opinion

11-021-E No. A school board member whose financially independent relatives are employed by the school district may not participate in discussions and actions approving reimbursement to these relatives as an item on the claims docket. The board member must recuse herself from any matter which would result in a pecuniary benefit to her relative, in compliance with Section 25-4-105(1).

10-035-E Examples of matters a school board member must recuse himself or herself from:

the hiring of the relative approval of the relative’s annual contract performance evaluations or disciplinary proceedings adjustments to the relative’s salary, benefits or

supplemental compensation by the school district, either as an individual employee or as a group of employees

any other action which is a necessary predicate to

the relative’s employment

discussions and actions approving the annual school

district budget from which the relative will be paid

May a member of the school board of trustees vote on a 16th Section lease held by his or her relative?

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Advisory Opinion

11-047-E No. A school board president may not vote on a 16th Section lease held by his or her

• relative. Additionally, a school board member may

not hold a 16th Section lease when the periodic rent adjustment occurs during his or her term of

• ffice or within one year thereafter. The periodic

rent adjustment is an authorization of the existing lease and must not occur during the board member’s term or within one year thereafter. May the food services director for a school district hire her husband or her husband’s niece?

Advisory Opinion

10-067-E A food services director for a school district may not hire her husband or supervise her husband pursuant to Section 25-4-105(1). However, the Ethics in Government Law does not prohibit a food services director from hiring her husband’s niece, although it may be prohibited by

• ther statutes.

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Section 25-4-103(c)

‘Business with which he is associated’ means public servant or his relative is

• fficer, director, owner, partner, employee

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

• ver which such public servant or his

relative exercises control.

Section 25-4-103(c)

‘Business with which he is associated’ means public servant or his relative is

relative exercises control.

May a member of a school board serve as an uncompensated officer of a volunteer

• rganization that will make donations to the

school district and improve playgrounds on school district property?

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Advisory Opinion

12-113-E Yes. A member of a school board may serve as an uncompensated volunteer for a volunteer organization that makes donations to the school district. So long as the school board member receives no compensation from the

• rganization, no violation of Section 109, Miss.
• Const. of 1890, or Section 25-4-105(2), Miss. Code
• f 1972, should arise. Nevertheless, the board

member should recuse himself or herself from any action which would result in a pecuniary benefit to the volunteer organization in compliance with Section 25-4-105(1) and Section 25-4-101.

Advisory Opinion

10-006-E A member of a school board may also serve as an unpaid officer of a Parent Teacher Organization (PTO) within the same school district. So long as the PTO is not receiving any funds from the district, no violation of Section 109 or Section 25-4-105(2) should arise. Nevertheless, the school board member must fully recuse himself or herself from any action which would result in a pecuniary benefit to the PTO in compliance with Section 25-4-105(1).

May a school district conduct business with an architecture firm which employs the financially independent child of a school board member?

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Advisory Opinion

04-021-E Yes. But the architecture firm that employs the financially independent child of a school board member is a business with which the school board member is associated, and the school board member must recuse himself or herself from any school board decisions, discussions or actions that could benefit the firm. May a school district purchase items from a hardware store owned by the son of the superintendent?

Advisory Opinion

07-105-E Yes. But a hardware store owned by the son of the superintendent is a business with which the superintendent is

• associated. Therefore, the superintendent

may not take any action in his or her official capacity which will result in a monetary benefit to the hardware store

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07-105-E (continued) For example, the superintendent must recuse herself from:

any decision or recommendation to make purchases

from the store

any approval of requisitions, purchase orders,

payment vouchers or other administrative actions

discussing transactions involving the hardware store

with any employee or other public servant of the school district “The superintendent should allow a purchasing agent

• r some other appropriate person to handle all

purchases which might involve the hardware store.”

Contractor, Subcontractor & Vendor Section 25-4-105 (3)(a) 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,

• ther 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.

Contractor Prohibition Section 25-4-105 (3)(a)

“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

• f Aberdeen v. Byars, 757 So.2d 243,

248 (¶ 15) (Miss. 2000).

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May a school district purchase items from a hardware store that employs a school board member, assuming the school board member would have no direct or indirect interest in the purchases as prohibited by Section 109 and Section 25-4-105(2)?

Advisory Opinion

10-104-E

• No. A school district may not continue

to do business with a hardware store which employs a member of the school board of trustees. Pursuant to Section 25-4-105(3)(a), a public servant of a school district may not have a material financial interest in a business which is a contractor, subcontractor or vendor to the district. None of the exceptions codified in Section 25-4- 105(4) are applicable under these circumstances. May an employee of the school district be paid as a contractor or vendor to design prom tickets, flyers, and brochures and to produce videos for the district?

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Advisory Opinion

13-083-E

• No. A school district may not hire a

school district employee to serve as a contractor or vendor to the school district. Pursuant to Section 25-4-105(3)(a), a public servant of a school district may not serve as a contractor, subcontractor or vendor to the district. None of the exceptions codified in Section 25-4-105(4) are applicable under these circumstances.

Purchaser Prohibition

Section 25-4-105(3)(b) (goods/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

• f the sale of goods or services when

provided as public utilities or offered to the general public on a uniform price schedule.

Purchaser Prohibition

Section 25-4-105(3)(b)

For example, this subsection prohibits a government employee or

• fficial from purchasing anything at

an auction or other sale conducted

• n behalf of his or her governmental

entity.

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Purchaser Prohibition

Section 25-4-105(3)(c) (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.

Insider Lobbying

Section 25-4-105(3)(d)

(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)

Post Government Employment Section 25-4-105(3)(e)

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

• f his service or employment.

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Post Government Employment Section 25-4-105(3)(e)

Applies after someone leaves

government.

If you worked on a matter while you

were in government, you cannot work

• n that same matter in the private

sector.

But a former government employee

can work for a government contractor

• n other matters.

Insider Information Section 25-4-105(5)

(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.

Insider Information Section 25-4-105(5)

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.

Could apply to a former public servant.

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OTHER LAWS

Not part of Ethics Law but do relate to schools. § 37-9-17: Step-Aside in Hiring

Principal or superintendent cannot

recommend employment of relative.

Board may designate someone else to

recommend relative.

Cannot be used for central office staff. Limited to 2 jobs per school. Noninstructional employee must have

been previously employed and cannot be paid more than statewide average.

Advisory Opinion

10-077-E A school superintendent’s spouse may be employed in a position at a particular school under the supervision of a school principal if the school board designates someone other than the superintendent to make the employment

• recommendation. However, the

superintendent’s spouse may not be employed under the authority of the school district central office, pursuant to Section 25-4-105(1) and Section 37-9-17.

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§ 37-9-21: School Nepotism

Cannot hire licensed employee if

related within third degree to majority of board.

Board member cannot vote on

licensed employee related within third degree.

Contract is null and void if it

violates this statute.

§ 37-7-333: Bank Contracts

If school board member has

connection to a bank which bids

• n depository contract, then don’t
• pen any of the bids.

Superintendent sends all sealed

bids to state treasurer, who opens bids and selects depository.

Advisory Opinion

05-067-E Question: May a school board approve a depository contract with a bank in which a school board member owns stock? Answer: No. Section 109 and §25-4-105(2) prohibit the school board from approving a depository contract with a bank where a school board member owns stock in the bank.

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Advisory Opinion

05-067-E (continued)

If the school board receives a bid from a bank that could create an issue under Section 109 or Section 25-4-105(2), the school board should utilize the procedure set forth in Section 37-7- 333:

“In the event a bank submits a bid or offer to a school district to act as a depository for the district and such bid or offer, if accepted, would result in a contract in which a member of the school board would have a direct or indirect interest, the school board should not open or consider any bids

• received. The superintendent of schools shall submit the matter to the State

Treasurer, who shall have the authority to solicit bids, select a depository or depositories, make all decisions and take any action within the authority of the school board under this section relating to the selection of a depository or depositories.”

Section 210, Miss. Constitution

No superintendent, trustee or

teacher may have any interest in the sale of anything to any public school in the state. § 37-7-203: Municipal school board eligibility/qualification

No person who is a member of such governing body, or who is an employee of the municipality, or who is a member of the county board of education, or who is a trustee of any public, private or sectarian school or college located in the county, inclusive of the municipal separate school district, or who is a teacher in

• r a trustee of the school district, shall be

eligible for appointment to the board of trustees.

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PUBLIC RECORDS ACT

Public Records Complaints

Complaint may be filed with the Commission or

the appropriate chancery court.

Commission will send a copy of the complaint to

the public body which can respond.

Commission may dismiss complaint, make

preliminary finding or hold a hearing.

The Commission can order production of records Commission can mediate disputes. Either party may appeal or enforce Ethics

Commission order in the local chancery court.

Penalty for Violating Public Records Act

Any person who shall deny to any person access to any public record which is not exempt from the provisions of this chapter or who charges an unreasonable fee for providing a public record may be liable civilly in his personal capacity in a sum not to exceed One Hundred Dollars ($100.00) per violation, plus all reasonable expenses incurred by such person bringing the proceeding. (Section 25-61-15)

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Access to Records

All documents and other records related to

government business are public records.

Everyone has the right to inspect or copy. Many records are exempted. If record contains exempt material,

government may have to redact and copy.

Electronic Records

The definition of public records includes all

records related to the function of government “regardless of physical form or characteristics.”

The Public Records Act applies equally to

paper and electronic records.

“As each public body increases its use of, and

dependence on, electronic record keeping, each public body must ensure reasonable access to records electronically maintained.”

Public Records Opinions Electronic Records

R-14-001: Miller v. Rankin Co. Sch. Dist.

Electronic records like teachers’ emails are public records

subject to production if they concern any work of the school district, unless exempted or privileged. R-13-023: NE Miss. Daily Journal v. Tupelo

Text messages concerning city business sent by the

mayor in his role as chief executive officer of the city qualify as public records, even though sent from the mayor’s personal phone.

Any text message used by a government official “in the

conduct, transaction or performance of any business, transaction, work, duty or function of [the government]” is a public record, regardless of where the record is stored.

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Public Records Opinions Electronic Records

R-13-008: Miss. Crime Crier v. Holmes- Humphreys Regional Correctional Facility

A public body fulfills its obligation to provide public

records when it posts a publicly available and searchable version of the records on the Internet. R-09-007: Garner v. Office of the State Treasurer

State agency fulfilled its obligation to provide

“reasonable access” to public records by posting a searchable electronic version of public records on the agency’s web site.

The Public Records Request

A person who requests public records must

request an identifiable record or class of records before a public body can comply with the request.

An "identifiable record" is one that staff of

the public body can reasonably locate.

An "identifiable record" is not a request for

"information" in general and it is not a list of questions for a public body to answer.

See Public Records Opinion Nos. R-10-003 (Hendrix vs. PERS) and R- 10-013 (Thomas vs. City of Gulfport).

Public Records Opinions The Public Records Request

R-14-001: Miller v. Rankin Co. Sch. Dist. (repeated)

Request to search every file at the school district for

reference to the word “Bible” fails to describe identifiable public records and can be denied. R-14-002: Nash v. Ruleville

Open ended questions which do not involve a

request for records are not proper public records

• requests. A public body is not required to answer

questions, but must respond to any requests which seek identifiable records.

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Response to Public Records Request

Public body must respond to public records

request within 1 working day, if no policy is in place.

Public body may adopt a policy allowing up to

7 working days to respond.

The time to respond can be extended to 14

working days only where the public body cannot respond within 7 days and gives good cause in writing to the person requesting the records.

Costs for Responding to a Public Records Request

Public body may require prepayment of reasonably

calculated actual costs of searching, reviewing, redacting, duplicating and mailing public records.

Labor costs of searching, reviewing and redacting

records must be charged at the rate of the lowest paid person competent to fulfill the request.

Could mean attorneys may only charge for work

requiring an attorney, especially when preliminary review can be done by a non-attorney.

Public Records Opinions Costs for Responding

R-14-001: Miller v. Rankin Co. Sch. Dist. (repeated)

District may collect fees to reimburse it for actual cost of

searching, reviewing and/or duplicating and, if applicable, mailing copies of public records. Any services included must be at the pay scale of the lowest level employee or contractor competent to respond to the request. R-09-004: Childress v. Dept. of Wildlife, Fisheries and Parks

A public body’s cost estimate must be a reasonably

calculated to recover actual costs of searching, reviewing, redacting, duplicating and mailing documents in response to the public records request.

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Public Records Opinions Costs for Responding

Harrison Co. Dev. Commn. v. Kinney, 920 So.2d 497 (Miss. App. 2006).

Any attempt by a public body to impose fees exceeding

actual costs reasonably incurred constitutes a willful and knowing denial of access to public records that warrants the imposition of a civil penalty and the award of attorney fees and costs. R-14-017: Rogers v. Rankin Co. Sch. Dist.

School district may recover as costs reasonable fees

incurred by district for attorney’s review of detailed legal bills for privileged or confidential information.

Denying Public Records Request

Denial of public records request must be

in writing.

The written denial must identify the

specific exemption relied upon by the public body.

The public body must keep all written

denials letters for at least three years.

Exempted or Privileged Records

The provisions of this chapter shall not be construed to conflict with, amend, repeal or supersede any constitutional or statutory law or decision of a court of this state or the United States which at the time of this chapter is effective or thereafter specifically declares a public record to be confidential or privileged, or provides that a public record shall be exempt from the provisions of this chapter.

(Section 25-61-11)

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PUBLIC RECORDS ACT

Examples of Statutory Exemptions

• Academic records, § 37-11-51.
• Trade secrets, proprietary commercial and financial information, § 79-23-1.
• Personal or private contact information on judges, law enforcement or

prosecutors

• Personal information on victims of crime
• Appraisal records exempt from access, § 31-1-27.
• Attorney work product exemption, § 25-1-102.
• Confidentiality, ambulatory surgical facilities, § 41-75-19.
• Defendants likely to flee, § 41- 32-7.
• Environmental self-evaluation reports, § 49-2-71.
• Hospital records, see § 41-9-68.
• Individual tax records, § 27-3-77.
• Judicial records exemption, § 9-1-38.
• Jury records, § 13-5-97.
• Medical examiner, records and reports, § 41-61-63.
• Personnel files, § 25-1-100.
• Workers' compensation, access to records, § 71-3-66.
• Licensure application and examination, § 73-52-1.

R-09-008: Davis vs. Univ. of Southern Miss.

Settlement agreement with former student

worker was an “education record” under FERPA (Family Educational Rights and Privacy Act, 20 U.S.C. § 1232.) and was exempt from disclosure under the Miss. Public Records Act. R-12-013: Greenwood Commonwealth –

• Miss. Dept. of Education

When public records contain student information

protected from disclosure under federal law (FERPA), the state agency should redact the portions of the records so that individual students cannot be identified and produce redacted records.

Public Records Opinions Common Exemptions: Education Records

R-12-009: Mosher vs. Ocean Springs S.D.

Score sheets from cheerleader tryouts are

protected from disclosure under Section 37-15-3 and FERPA.

Public Records Opinions Common Exemptions: Education Records

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Public Records Opinions Common Exemptions: Personnel Records

R-14-009: Greenwood Commonwealth v. Leflore

• Co. Sch. Dist./State Dept. of Ed.

Letters of nonrenewal are exempt personnel records. A list of employees who received letters of nonrenewal

may also be exempt. R-13-022: NE Miss. Daily Journal v. Tupelo

Email from mayor to city employee concerning city

business is a public record which must be produced unless subject to an exemption.

The email in question contained a reprimand of the

employee which was exempt from production as a personnel record. R-08-009: Clarion-Ledger vs. Univ. of Miss.

The public employment contracts of public employees,

(coaches and athletic director) which form the basis for their compensation with public funds, are not exempted personnel records as described in Section 25-1-100.

R-14-025: O’Bryant v. Moss Point

Personnel records cannot be produced unless the public body

• btains consent from the employee to whom the records pertain.

A public body is not required to give an employee a copy of his

• r her own personnel records.

Public Records Opinions Common Exemptions: Personnel Records Public Records Opinions Common Exemptions: Personnel Records

R-13-001: Williams v. City of Jackson

Salary information and time cards of city

employees are not exempt personnel records. If the records contain exempt information, it may be redacted before the records are produced.

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R-10-005: Sacharin v. Horn Lake Police Department

When a police “investigative report” contains information which should have been contained in an “incident report,” the exempt information must be redacted, and the redacted report must be produced.

R-10-008: Webster v. Southaven Police Dept.

Police department policy and procedure manuals are generally not exempt “investigative reports.” Internal affairs complaints may be exempted “personnel records.”

R-10-020: Swan v. Hattiesburg Police Dept.

An incident report must contain a narrative description of the incident and must not contain investigative or victim information which could jeopardize investigations and prosecutions and may subject victims of crime to unwarranted public embarrassment or danger.

Public Records Opinions Common Exemptions: Investigative Reports Public Records Opinions Common Exemptions: Attorney-Client Privilege and Attorney Work Product

R-13-002: Butts v. Tupelo School District While the district may be required to produce documents that simply reflect the total amount billed by an attorney, the District cannot be required to disclose information in detailed invoices from an attorney that contain attorney-client privileged communications or information subject to the attorney work product doctrine.

OTHER PUBLIC RECORDS OPINIONS INVOLVING SCHOOL DISTRICTS

R-14-011: Hinds v. Columbus Municipal Sch. Dist.

Executive session minutes are public records which

must be available for inspection and copying pursuant to the Public Records Act, but the minutes may be redacted prior to production to the extent they contain information subject to an exemption or privilege. R-12-011: Mosher v. Ocean Springs Sch. Dist.

An audio recording of an executive session is a

public record that is subject to production unless an exemption or privilege applies.

35

OTHER PUBLIC RECORDS OPINIONS INVOLVING SCHOOL DISTRICTS

R-11-001: Tharp vs. Jackson Public Schools

Under the Public Records Act, an individual has no

more right to public records pertaining to him or her than any other member of the public would have. While the individual may certainly have a right to

• btain the record in an administrative or court

proceeding, the Public Records Act gives the same right of access to all members of the public, regardless

• f their personal connection to the record.

Model Public Records Rules

Nonbinding unless you adopt them; Designed for use by all state and local

agencies;

Can be modified to suit your needs; Provide guidance on questions which are

not answered in the law and have not been addressed by courts;

Posted on Ethics Commission web site.

OPEN MEETINGS ACT

36

OPEN MEETINGS ACT

“It being essential to the fundamental philosophy of the American constitutional form of representative government and to the maintenance of a democratic society that public business be performed in an open and public manner, and that citizens be advised of and be aware of the performance of public officials and the deliberations and decisions that go into the making of public policy, it is hereby declared to be the policy of the State of Mississippi that the formation and determination of public policy is public business and shall be conducted at

• pen

meetings except as

• therwise

provided herein.”

(Section 25-41-1)

OPEN MEETINGS COMPLAINTS

Complaint is filed with Commission. Complaint is

sent to public body, which can respond. Commission may dismiss complaint, make preliminary finding or hold a hearing.

Ethics Commission may order public body to

comply with law.

Ethics Commission may impose $500 fine

for first offense, $1,000 for subsequent

• ffense.

Ethics Commission can mediate disputes. Either party may appeal or enforce Ethics

Commission order in local chancery court.

Public meetings must be open to public. Executive session must follow specific

procedure and only for 12 reasons.

Notice of meeting must be given, and

minutes must be kept.

Social gatherings are not “meetings”

unless official business is discussed.

Act never requires executive session.

OPEN MEETINGS ACT The Basics

37

WHAT IS A MEETING?

“Public body” is any board, commission,

authority, council, department agency, bureau or other entity or committee thereof

• f the state, political subdivision or

municipality.

“Meeting” is any gathering of a quorum of

the public body, whether in person or by phone, to discuss a matter under the authority of the public body.

OPEN MEETINGS ACT Definitions

Case No. M-14-002 Gregory v. Columbus City Council

Deliberations of a quorum must take

place in a proper public meeting.

When a quorum of the council splits

into separate groups and discusses the same matter of city business with the mayor, a quorum is deliberating, and a “meeting” has occurred.

38

Case No. M-12-010 Jones v. Yazoo City Bd.

Mayor telephoned a quorum of the board

to discuss a matter of city business.

Does not matter that he called each board

member separately.

The phone conversations constitute an

illegal meeting without notice or minutes.

NOT a violation for mayor or individual

board members to discuss city business, as long as the conversations do not encompass a quorum discussing same subject.

Case No. M-09-007 Hall v. Miss. Trans. Commn.

When a quorum of a public body

assembles and discusses a matter under their jurisdiction, a “meeting” has taken place.

Does not matter that they took no action. Must provide notice and take minutes.

Case No. M-10-001 Mason v. Aberdeen Bd. of Ald.

A chance or impromptu gathering of board members is not

necessarily a “meeting.” A public board should be available for social functions with charities, industries and businesses, at which no action is taken and their only function is to listen, without being subjected to the Act. Therefore, a function attended by a public board, whether informal or impromptu, is a meeting within the meaning of the Act only when there is to occur “deliberative stages of the decision-making process that lead to formation and determination of public policy.” Hinds County Board of Supervisors v. Common Cause of Mississippi, 551 So.2d 107, 123 (Miss.1989).

39

Case No. M-12-020 McGovern v. Starkville

Retreats conducted by the Board of

Aldermen are meetings subject to the Open Meetings Act.

Even if no official action is taken at a

meeting, minutes must be kept.

Committees established by the board to

conduct business of the city are subject to the Open Meetings Act.

Case No. M-12-023 Gilmore v. Holmes Co. Sch. Dist.

A panel established by the superintendent

to assist the superintendent in performing his or her job is not a “public body” subject to the Open Meetings Act.

While the school board of trustees and

any committee thereof qualify as a “public body” under the Open Meetings Act, there was no evidence the panel was created by the board or at the direction of the board.

TELEPHONIC MEETINGS

40

All members can participate by phone or

video conference.

They can be in different locations, so

long as one location is open to the public.

Notice of telephonic meetings must be

given 5 days in advance, except in emergency, and must include the public location.

OPEN MEETINGS ACT Telephonic Meetings

Meeting must be suspended if phone

service is interrupted.

Roll call votes are required. Meeting must be recorded by audio

(when using telephone) or video (when using video conference), and recording must be kept 3 years.

OPEN MEETINGS ACT Telephonic Meetings

NOTICE AND RECORD OF MEETING

41

OPEN MEETINGS ACT Notice of Meetings

Regular meetings of some public bodies are set in

statute.

If not set by statute, the times, places, and

procedures of meetings must be spread upon the public body’s minutes.

For recess, adjourned, interim or special meetings,

notice must be posted in the building where the public body normally meets within one hour of calling the meeting.

Copy of the notice must be placed in the minutes.

Minutes must be kept for all meetings,

whether in open or executive session.

Minutes must be “recorded” within 30

days after meeting.

Minutes must be available for public

inspection.

OPEN MEETINGS ACT Minutes of Meetings

Case No. M-12-012 Rody v. Pearl River Co. Bd. Of Sup.

“Minutes shall be recorded within a reasonable

time not to exceed thirty (30) days after recess

• r adjournment and shall be open to public

inspection during regular business hours.”

The term “recorded” means written or drafted. Draft minutes must be made available for public

inspection.

42

Minutes must show:

Members present and absent; Date, time and place of meeting; Accurate recording of any final actions; Record, by individual member, of all votes

taken;

Any other information requested by the

public body.

OPEN MEETINGS ACT Content of Minutes

Case No. M-12-012 (repeated) Rody v. Pearl River Co. Bd. Of Sup.

The minutes of a public body may, but are

not required to, reflect discussions

• ccurring in open session when no action

was taken.

Minutes are not transcripts. The purpose

• f the minutes is to record what actions

were taken at the meeting, not to record everything that was discussed.

PUBLIC PARTICIPATION

43

Case No. M-11-008 Smith v. Town of Summit

An agenda and materials that will

be distributed to members of the public body must be made available to the public at the time

• f the meeting.

Section 25-41-5(4)

Case No. M-10-004 Cockrell v. Canton Bd. of Ald.

Public body may not ban cameras

• r other recording devices from an
• pen meeting.

Public body may make and enforce

reasonable rules for conduct of persons attending meetings.

Case No. M-10-007 Townes v. Leflore Co. Sch. Bd.

Public body may make and enforce

reasonable rules for conduct of persons attending meetings.

Public body is not required to allow

members of the public to speak at meetings.

44

Case No. M-11-003; Hampton vs. Louisville Municipal School District

Open Meetings Act requires public bodies

take all reasonable means within their powers and resources to ensure all members

• f the public who attend are able to “see and

hear everything that is going on”.

Act does not require public body to provide

electronic amplification during public meetings, nor can public body be required to provide seating for an overflow crowd.

EXCLUDING THE PUBLIC: EXECUTIVE SESSION

Executive session may be held for 12 reasons only: (a) personnel matters (b) litigation (c) security (d) investigations (e) The Legislature may enter executive session for any reason. (f) cases of extraordinary emergency (g) prospective purchase, sale or leasing of lands (h) school board discussions about individual student’s problems (i) preparation of professional licensing exams (j) location, relocation or expansion of a business (k) budget matter which may lead to termination of employee (l) certain PERS board investments

OPEN MEETINGS ACT Executive Session

45

Executive Session Procedure:

• 1. The meeting must begin as an Open Meeting.
• Miss. Code Ann. § 25-41-7(1)
• 2. A member must make a motion in an Open

Meeting for the meeting to be closed to determine whether or not the Board should declare an executive session. The statute does not require a second to this motion, but the vote on this motion is taken in Open Meeting. If a majority votes to close the meeting to make a determination on the question

• f an executive session, the meeting is closed for this

purpose.

• Miss. Code Ann. § 25-41-7(2)

Executive Session Procedure (continued)

• 3. No other business during this closed interim shall be

considered until a vote has been taken on whether or not to declare an executive session. Miss. Code Ann. § 25-41- 7(2). In order to go into executive session, a majority of three-fifths of those present must vote in favor of it.

• Miss. Code Ann. § 25-41-7(1)
• 4. The Board must then state in Open Meeting the reason

for going into executive session, and this reason and total vote thereon must thereafter be recorded on the minutes

• f the meeting.
• Miss. Code Ann. § 25-41-7(3), (5)
• 5. The vote to go into executive session is applicable only

to that particular meeting on that particular day.

• Miss. Code Ann. § 25-41-7(6)

(See Case No. M-12-002; Hood v. Belzoni)

A board which

• nly

announces “litigation”

• r

“personnel matters” for going into executive session has said nothing. It might as well have stated to the audience, “Ladies and gentlemen, we are going into executive session,” and stopped there. The Act requires that a board cannot use its statutory authority to go into executive session upon certain matters as a device to circumvent the very purposes for which it is under the Open Meetings Act. The purpose of the Act is that the business conducted at all meetings of public boards be wide open.

Hinds County Board of Supervisors v. Common Cause of Mississippi, 551 So.2d 107, 113-114 (Miss.1989).

46 Case Nos. M-12-005 & M-12-006 Harding v. City of Bay St. Louis

“Personnel matters” exception does not apply the job

performance of an independent contractor to the government:

“Personnel Matters” are restricted to matters dealing with employees hired and supervised by the board, not those employees of some other [public] official, and not other [public] officials themselves. . . . Moreover, an independent contractor such as an accountant, lawyer, or architect is not an employee

• f

the board, and would not come under “personnel.”

Hinds County Board of Supervisors v. Common Cause of Mississippi, 551 So.2d 107 (Miss.1989).

Case No. M-09-005 Cooper v. Adams Co. Bd. of Supv.

“Personnel matters” exception does not apply to

issue of funding agency simply because board members disapprove of agency employees.

Board may not simply announce “personnel” as

reason for entering executive session.

Board must announce which exception applies

to each individual matter discussed in executive session.

Case No. M-09-006 Howell v. Water Valley Bd. of Ald.

Selecting a board attorney is a

“personnel matter” which may be discussed in executive session when the board considers the “job performance, character, [and] professional competence” of the attorney.

47

Case No. M-09-009 Hood v. Belzoni Bd. of Ald.

Board may never discuss pay raises for

themselves in executive session as elected

• fficials are not “personnel.”

Board must publicly state a meaningful

reason with sufficient specificity before entering executive session.

Reason for executive session must be

recorded in the minutes.

Case No. M-12-012 Rody v. Pearl River Co. Bd. Of Sup.

“Litigation” includes “strategy sessions or negotiations

with respect to prospective litigation, litigation or issuance of an appealable order when an open meeting would have a detrimental effect on the litigating position

• f the public body.”

Public bodies should provide as much specific

information about the reason given as is possible under the circumstances. The amount of detailed information which can be provided may change from one instance to another.

Contact Us

Mississippi Ethics Commission Post Office Box 22746 660 North St., Suite 100-C Jackson, Mississippi 39225-2746 Phone: 601-359-1285 Fax: 601-359-1292 www.ethics.state.ms.us info@ethics.state.ms.us