Ethics in Government & Public Records

1. MISSISSIPPI ETHICS COMMISSION MISSISSIPPI ETHICS COMMISSION Miss. Coroner-Medical Examiners Assn. 2016 Winter Conference Hilton Hotel, Jackson January 14, 2016 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. THE STATEMENT OF ECONOMIC INTEREST Intended to disclose sources of a public servant’s income but not amounts.

4. 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.

5. THE COMPLAINT PROCEDURE Investigation and Enforcement of Ethics in Government Violations

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

8. 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.

9. MISSISSIPPI’S ETHICS IN GOVERNMENT LAW “The legislature declares that elective and public office and employment is a public trust and any effort to realize personal gain through official conduct, other than as provided by law, or as a natural consequence of the employment or position, is a violation of that trust. Therefore, public servants shall endeavor to pursue a course of conduct which will not raise suspicion among the public that they are likely to be engaged in acts that are in violation of this trust and which will not reflect unfavorably upon the state and local governments.” Section 25-4-101, Miss. Code of 1972

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

11. 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 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 109, Miss. Constitution of 1890

12. Advisory Opinion 10-032-E Pursuant to Section 109 and Section 25-4-105(2), a funeral home partly owned by a county supervisor which also employs the coroner and other county employees is absolutely prohibited from transacting any business with the county during the supervisor’s term or for one year thereafter. Also, the coroner and county employees must not use their positions to benefit the funeral home, in compliance with Section 25-4-105(1).

13. 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.

14. 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 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. • Recusal does not prevent other violations.

15. 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).

16. Advisory Opinion 06-051-E The spouse of a county coroner may serve on the county election commission. However, the election commissioner must recuse himself or herself from any matter affecting his or her spouse, the coroner, in compliance with Section 25-4-105(1).

17. 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.

18. Advisory Opinion 08-016-E A coroner who is president of a corporation may transport bodies to the Mississippi Crime Laboratory or a hospital using a van provided free of charge by the corporation. No violation of Section 25-4-105(1) or (3)(a) should occur under these facts if the corporation provides the van free of charge.

19. Advisory Opinion 07-118-E A county coroner, who has taken control of a body as coroner, may not receive compensation from a private person or entity for transportation of that body to a funeral home. If a coroner has taken charge of a body in his official capacity by operation of law, the coroner is prohibited by Section 25-4-105(1) from accepting any payment by a private person or entity for services rendered or duties performed in relation to that body.

20. 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.

21. Advisory Opinion 13-096-E A deputy sheriff or the office manager for the Coroner’s Office may also serve as Deputy Coroner. The Coroner’s Office is a separate “authority” of county government from the Sheriff’s Office. Therefore, the exception codified in Section 25-4-105(4)(h) will apply, and the deputy sheriff may serve as deputy coroner without violating Section 25-4-103(a). Also, the positions and duties of deputy coroner and office manager could be combined to avoid a violation of Section 25-4-105(3)(a). * Older opinions differ but are moot.

22. Advisory Opinion 15-001-E A county coroner may also serve as director of the county emergency management organization. While Section 25-4-105(3)(a) generally prohibits a county official from also serving as a county employee, the exception in Section 25-4-104(4)(h) applies because the two offices are separate component units of county government.

23. Advisory Opinion 11-025-E A deputy county coroner may also work for the county E-911 commission because the coroner’s office and E-911 commission are separate authorities of county government, the exception codified in Section 25-4-105(4)(h) will apply.

24. Advisory Opinion 08-035-E A county deputy coroner may not have a material financial interest in a business which is a contractor with the county. The county deputy coroner is a public servant of the county and may not hold a material financial interest in a business which is a contractor with the county under Section 25-4-105(3)(a).

25. Advisory Opinion 02-011-E Pursuant to Section 25-4-105(3)(a), the funeral home employing the deputy coroner is prohibited from contracting with the county to transport bodies, store bodies, perform autopsies or bury paupers as long as the deputy coroner is employed by the funeral home.

26. Advisory Opinion 03-036-E A member of one governmental entity may serve a totally separate governmental entity, such as an alderman serving as coroner, because a city and a county are separate “governmental entities.” However, the Attorney General must address whether the dual service is a violation of the Separation of Powers Sections of the Mississippi Constitution.

27. 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.

28. 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.

29. Advisory Opinion 13-075-E Due to the appearance of impropriety that could arise in contravention to Section 25-4-101, Miss. Code of 1972, and the potential for a violation of Section 25-4-105(3)(b) and (5), a public servant of the county should not contract with a company to submit bids on behalf of the company at the tax sale conducted in his or her own county.

30. 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.

31. Advisory Opinion 13-129-E A former employee of a county may work for a company that contracts with the county but may only work for the company on cases in which the former public servant was not personally or directly involved while employed by the county to comply with Section 25-4-105(3)(e), Miss. Code of 1972.

32. Subsection (3)(e) – Post Government Employment • 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. • But a former government employee can work for a government contractor on other matters.

33. 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).

34. 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.

35. Section 25-4-105(5) – Insider Information • 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.

36. PUBLIC RECORDS ACT

37. 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.

38. Incident/Investigative Reports Defines “incident report,” “investigative report” and “law enforcement agency.” Incident report must include identity of person arrested, date, time, location and nature of offense. Incident report must be disclosed. Investigative reports may contain detailed information about crime and victim. Investigative report does not have to be disclosed.

39. Public Records Opinions R-14-003: Stallworth vs. Harrison ME Coroner’s autopsy report and photographs are law enforcement investigative records and are exempt. R-10-013, Thomas vs. City of Gulfport 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. R-09-007: Garner vs. 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.

40. Public Records Opinions R-10-005, Sacharin vs. 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 vs. 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 vs. 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.

41. Public Records Opinions R-13-005 - 010: Miss. Crime Crier vs. Sheriffs’ Departments Incident reports and jail dockets are nonexempt public records which must be produced upon request. Mug shots are not necessarily part of either record and may be provided upon request at the discretion of the law enforcement agency. Records must be provided in electronic format only if they are kept in electronic format. R-13-001, Williams vs. 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. R-13-007: DeLoge vs. DeSoto County Sheriff’s Department Evidence in an open criminal investigation, even if public record, qualifies as investigative reports and is exempt from disclosure.

42. Public Records Opinions R-13-012: Weatherford vs. City of D’Iberville Public records request for a court file in a criminal case must be honored unless the file has been properly sealed. The court must strictly follow a specific procedure before sealing a court file, including an open hearing after notice to the parties and media. R-13-020, Stankevich vs. City of Jackson Investigative reports are exempt from public records disclosure. E-911 recordings are not only exempt but may not be released without a court order. R-13-022: NE Miss. Daily Journal vs. City of Tupelo Email from mayor to city employee which contained a reprimand was exempt as a personnel record.

43. Public Records Opinions R-14-015: McKinney vs. Carroll County Sheriff’s Dept. Requestor must ask for “identifiable records.” Mere questions or requests for information do not require a response. R-14-007, Muller vs. Dept. of Public Safety Question about employment status is not a request for public records. Incident report created by another law enforcement agency and obtained by DPS solely as part of an internal affairs investigation is a “personnel record” and exempt from production by DPS, although it could be obtained from the reporting agency. R-14-008 & 012, Muller vs. DPS & MDOT Witness statement obtained from MDOT employee in the course of internal affairs investigation by DPS and possessed by both agencies is a “personnel record” and exempt from production by either agency.

44. PUBLIC RECORDS ACTSome Statutory Exemptions Personal contact information on judges, cops, prosecutors or victims of crime, § 25-61-12 Appraisal records exempt, § 31-1-27 Attorney work product exemption, § 25-1-102 Environmental self-evaluation reports, § 49-2-71 Individual tax records, § 27-3-77 Personnel files exempt, § 25-1-100 Workers' compensation records, § 71-3-66

45. Public Records OpinionsCommon 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.

46. Public Records OpinionsCommon 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.

47. Text Msgs. - Op. No. R-13-023 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.

48. Text Msgs. - Op. No. R-13-023 Purely personal text messages having absolutely no relation to government business are not public records. Public record text messages might have to be retained by the public body. MDAH Local Government Records Office says “electronic records are subject to the same retention guidelines as paper records and existing retention schedules apply to all records regardless of format unless noted otherwise in the approved retention period.”

49. 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.

50. Enforcement 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 can mediate disputes. Either party may appeal de novo or enforce Ethics Commission order in local chancery court. Complaints can still bypass the Ethics Commission and go straight to chancery court.