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Ethics in Government & Public Records

MISSISSIPPI ETHICS COMMISSION. MISSISSIPPI ETHICS COMMISSION. CMPA Program Woolfolk Building, Jackson May 22, 2019. Ethics in Government & Public Records. OVERVIEW OF THE MISSISSIPPI ETHICS COMMISSION. The Commission administers and enforces the Ethics in Government Law by

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Ethics in Government & Public Records

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  1. MISSISSIPPI ETHICS COMMISSION MISSISSIPPI ETHICS COMMISSION CMPA Program Woolfolk Building, Jackson May 22, 2019 Ethics in Government & Public Records

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

  3. ETHICS IN GOVERNMENT LAW

  4. 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.

  5. THE COMPLAINT PROCEDURE

  6. 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.

  7. Enforcement • Commission holds hearings to determine guilt and to impose penalties. • Appeals go to Hinds County Circuit Court. • Commission can impose fines up to $10,000, censures and equitable remedies on all public servants. • Commission can only recommend that Hinds County Circuit Court remove an official or suspend or demote an employee

  8. Eight Basic Prohibitions • Board Member Contracts • Use of Office • Contracting • Purchasing Goods and Services • Purchasing Securities • Insider Lobbying • Post Government Employment • Insider Information

  9. No public officer or member of the legislature shall be interested, directly or indirectly, 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, during the term for which he shall have been chosen, or within one year after the expiration of such term. Section 109, Miss. Constitution of 1890

  10. Advisory Opinion 14-065-E The spouse of a state board member may not serve as a consultant to the state agency when the state board approved a grant used to pay the spouse. The board member will have an indirect interest in the grant agreement authorized by the state board during his term in violation of Section 109 and Section 25-4-105(2).

  11. 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 obtain, or attempt to obtain, pecuniary benefit for any relative or any business with which he is associated.

  12. Section 25-4-105(1) “Relative” is the public servant’s • spouse, • child, • parent, • sibling (brothers and sisters) or • spouse of a relative (in-laws).

  13. Advisory Opinion 14-013-E A janitorial services company owned by the parent of a state agency employee may serve as a contractor to the agency. If the state employee fully and completely recuses himself or herself from any matter concerning the company, then no violation of Section 25-4-105(1) will occur, and the company may serve as a contractor to the agency.

  14. Section 25-4-105(1) ‘Business with which he is associated’ means public servant or his relative is • officer, 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 • over which such public servant or his relative exercises control.

  15. Advisory Opinion 14-035-E State agency may contract with a nonprofit corporation when a member of the state commission is an uncompensated trustee for the nonprofit. However, the nonprofit is a “business with which [the commissioner] is associated,” and he must recuse from any action which would result in a pecuniary benefit to the nonprofit as required by Section 25-4-105(1).

  16. Subsection (3)(a) – The Contractor Prohibition (3) No public servant shall: (a) Be a contractor, subcontractor or vendorwith 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 vendorwith the governmental entity of which he is a member, officer, employee or agent.

  17. Advisory Opinion 14-005-E A business owned by the spouse of a state agency employee may serve as a contractor to the state agency when the income is that of the spouse, the state employee exercises no control, direct or indirect, over the contract and the state employee fully recuses himself or herself from any monetary benefit to the business.

  18. Advisory Opinion 13-104-E A business owned by a state employee may serve as a contractor to a separate state agency. Section 25-4-105(4)(h), Miss. Code of 1972, provides an exception which allows a business owned by a state employee to serve as a contractor to a separate “authority” of state government, such as a separate state agency.

  19. Subsection (3)(b) – The Purchaser Prohibition (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.

  20. Subsection (3)(b) – The Purchaser Prohibition 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.

  21. Subsection (3)(e) – Post Government Employment (3) No public servant shall: (e) Perform any service for any compensation for any person or businessafter 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.

  22. Advisory Opinion 14-041-E A former state employee may accept a position with a vendor to the state agency for which the employee formerly worked, but the former state employee may not work for the company in relation to any contracts between the company and the state agency in which the former employee was directly or personally involved while employed by the state agency, pursuant to Section 25-4-105(3)(e).

  23. Advisory Opinion 14-004-E A former public servant is not prohibited by Section 25-4-105(3)(e), Miss. Code of 1972, from contracting directly with his or her former governmental employer in his or her individual capacity after termination of governmental employment.

  24. Section 25-4-105(4) – Exceptions to Subsection (3) • 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 25-4-105(2). The employee would still have to recuse himself or herself from any action which might otherwise violate Section 25-4-105(1).

  25. Section 25-4-105(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.

  26. PUBLIC RECORDS ACT

  27. PUBLIC RECORDS ACT • All documents and other records, including electronic records, related to government business are public records. • Everyone has the right to inspect or copy. • Government can recoup actual cost of retrieving and/or copying public records. • Many records are exempted. • If record contains exempt material, government may have to redact and copy.

  28. PUBLIC RECORDS ACTResponse and Costs • 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. • Denial of request must be in writing. • Public body may require prepayment of reasonably calculated actual costs of searching, reviewing, redacting, duplicating and mailing public records.

  29. Public Records CasesCosts 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.

  30. PUBLIC RECORDS ACTConfidential Business Info. • Public records furnished by third parties which contain trade secrets or confidential commercial or financial information are exempt from disclosure. • Public body must give notice to third party which has 20 days to seek protective order. • If protective order is not obtained by third party, then public body must produce.

  31. PUBLIC RECORDS ACTSome Statutory Exemptions • Academic records, § 37-11-51. • Attorney work product, § 25-1-102. • Individual tax records, § 27-3-77. • Licensure application and examination, § 73-52-1. • Personnel files, § 25-1-100. • Trade secrets, proprietary commercial and financial information, § 79-23-1. • Workers' compensation records, § 71-3-66.

  32. Public Records CasesCommon Exemptions: Personnel Records R-14-025: O’Bryant v. Moss Point • Personnel records cannot be produced unless the public body obtains consent from the employee to whom the records pertain. • A public body is not required to give an employee a copy of his or her own 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.

  33. Public Records CasesCommon 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.

  34. 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

  35. Contact Us Mississippi Ethics Commission Post Office Box 22746 660 North Street, 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

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