Ethics in GovernmentEthics in Government

MISSISSIPPI ETHICS MISSISSIPPI ETHICS COMMISSIONCOMMISSION

A&WMA Annual ConferenceA&WMA Annual Conference

Beau Rivage Casino, BiloxiBeau Rivage Casino, Biloxi

August 8, 2008August 8, 2008

OVERVIEW OF THE MISSISSIPPI OVERVIEW OF THE MISSISSIPPI ETHICS COMMISSIONETHICS COMMISSION

The Commission administers and enforces The Commission administers and enforces the Ethics in Government Law bythe 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 Senate Bill 2983, enacted in the 2008 Regular Session of the 2008 Regular Session of the

LegislatureLegislature adds adds

Open Meetings Act Open Meetings Act

Public Records ActPublic Records Act

MISSISSIPPI ETHICS MISSISSIPPI ETHICS COMMISSIONCOMMISSION

Eight members serve staggered Eight members serve staggered terms. terms.

Members appointed by Governor, Members appointed by Governor, Lieutenant Governor, Speaker of the Lieutenant Governor, Speaker of the House and Chief Justice.House and Chief Justice.

Commission staff supervised by an Commission staff supervised by an executive director who serves at the executive director who serves at the Commission’s will and pleasure.Commission’s will and pleasure.

MISSISSIPPI’S ETHICS MISSISSIPPI’S ETHICS IN GOVERNMENT LAWIN GOVERNMENT LAW

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

Section 25-4-1, Miss. Code of 1972Section 25-4-1, Miss. Code of 1972

Eight Basic ProhibitionsEight Basic Prohibitions1.1. Board Member ContractsBoard Member Contracts2.2. Use of OfficeUse of Office3.3. ContractingContracting4.4. Purchasing Goods and ServicesPurchasing Goods and Services5.5. Purchasing SecuritiesPurchasing Securities6.6. Insider LobbyingInsider Lobbying7.7. Post Government EmploymentPost Government Employment8.8. Insider InformationInsider Information

Section 109, Section 109, Miss. Constitution of 1890Miss. Constitution of 1890

No public officer or No public officer or member of the member of the legislature shall be legislature shall be

interested, directly or interested, directly or indirectlyindirectly, in any , in any

contractcontract with the state, with the state, or any district, county, or any district, county, city, or town thereof, city, or town thereof,

authorizedauthorized by any law by any law passed or order made passed or order made by any board of which by any board of which he may be or may have he may be or may have been a member, been a member,

during the termduring the term for for which he shall have which he shall have been chosen, been chosen, or within or within one yearone year after the after the expiration of such term.expiration of such term.

Section 109 Section 109 onlyonly applies applies to members of boards to members of boards and the Legislature. and the Legislature.

Notice the prohibition is Notice the prohibition is against an against an interestinterest, not , not against an act.against an act.

There must be some sort There must be some sort of contract. It need not be of contract. It need not be a written contract.a written contract.

The conflict arises when The conflict arises when the the boardboard funds or funds or otherwise authorizes the otherwise authorizes the contract. contract. Even if the Even if the individual member does individual member does not vote, he or she may not vote, he or she may be in violationbe in violation..

The prohibition continues The prohibition continues until a former official has until a former official has been out of office for one been out of office for one year.year.

Section 25-4-105(1)Section 25-4-105(1)

(1) No (1) No public servantpublic servant shall shall use his use his official positionofficial position to obtain, to obtain, or attempt or attempt to obtainto obtain, , pecuniary benefitpecuniary benefit for for himself other than that compensation himself other than that compensation provided for by law, or to obtain, provided for by law, or to obtain, or or attempt to obtainattempt to obtain, pecuniary benefit , pecuniary benefit for any for any relativerelative or any or any business with business with which he is associatedwhich he is associated..

Section 25-4-105(1)Section 25-4-105(1)

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

officer, director, owner, partner, employee officer, director, owner, partner, employee oror

holder of more than ten percent (10%) of holder of more than ten percent (10%) of the fair market value or the fair market value or

from which he or his relative derives more from which he or his relative derives more than than $2,500$2,500 in annual income or in annual income or

over which such public servant or his over which such public servant or his relative exercises control. relative exercises control.

Section 25-4-105(1)Section 25-4-105(1) The statute does The statute does notnot require a public servant require a public servant

misusemisuse his or her position. his or her position. To avoid a violation, a public servant must To avoid a violation, a public servant must

totally and completely totally and completely recuserecuse himself or himself or herself from the matter giving rise to the herself from the matter giving rise to the conflict. conflict.

A board member must leave the board meeting A board member must leave the board meeting beforebefore the matter comes up for discussion, the matter comes up for discussion, may only return may only return afterafter the matter is concluded, the matter is concluded, and must not discuss the matter with anyone. and must not discuss the matter with anyone.

An abstention is considered a vote with the An abstention is considered a vote with the majority and is majority and is notnot a recusal. The minutes of a recusal. The minutes of the meeting should accurately reflect the the meeting should accurately reflect the recusal.recusal.

Recusal Recusal does not does not prevent other prevent other violations.violations.

Section 25-4-105(1)Section 25-4-105(1)

““RelativeRelative” is the public ” is the public servant’s 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) – Subsection (3)(a) – The Contractor ProhibitionThe Contractor Prohibition

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

Subsection (3)(a) – Subsection (3)(a) – The Contractor ProhibitionThe Contractor Prohibition

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

Subsection (3)(a) – Subsection (3)(a) – The Contractor ProhibitionThe Contractor Prohibition

‘‘Material financial interestMaterial financial interest’ means a personal and pecuniary ’ means a personal and pecuniary interest, direct or indirect, accruing to a public servant or interest, direct or indirect, accruing to a public servant or spouse, either individually or in combination with each other. spouse, either individually or in combination with each other. Except forExcept for: :

1.1. Ownership of less than 10% in a business with aggregate Ownership of less than 10% in a business with aggregate annual net income to the public servant less than $1,000.00;annual net income to the public servant less than $1,000.00;

2.2. Ownership of less than 2% in a business with aggregate Ownership of less than 2% in a business with aggregate annual net income to the public servant less than $5,000.00;annual net income to the public servant less than $5,000.00;

3.3. Income as an employee of a relative if neither the public Income as an employee of a relative if neither the public servant or relative is an officer, director or partner and any servant or relative is an officer, director or partner and any ownership interest would not be material under ownership interest would not be material under subparagraph 1 or 2; orsubparagraph 1 or 2; or

4.4. Income of the spouse of a public servant when the spouse is Income of the spouse of a public servant when the spouse is a contractor, subcontractor or vendor and the public servant a contractor, subcontractor or vendor and the public servant exercises no control, direct or indirect, over the contract.exercises no control, direct or indirect, over the contract.

Subsection (3)(b) – Subsection (3)(b) – Purchasing Goods or ServicesPurchasing Goods or Services

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

Subsection (3)(b) – Subsection (3)(b) – Purchasing Goods or Services Purchasing Goods or Services

For example, this subsection prohibits For example, this subsection prohibits a government employee or official a government employee or official from purchasing anything at an from purchasing anything at an auction or other sale conducted on auction or other sale conducted on behalf of his or her governmental behalf of his or her governmental entity.entity.

Subsection (3)(c) – Subsection (3)(c) – Purchasing SecuritiesPurchasing Securities

(3) No public servant shall: (c) Be a (3) No public servant shall: (c) Be a purchaser, direct or indirect, of any purchaser, direct or indirect, of any claim, certificate, warrant or other claim, certificate, warrant or other security issued by or to be paid out of security issued by or to be paid out of the treasury of the governmental entity the treasury of the governmental entity of which he is an officer or employee.of which he is an officer or employee.

For example, a county official or For example, a county official or employee may not purchase bonds employee may not purchase bonds issued by the county.issued by the county.

Subsection (3)(d) – Inside LobbyingSubsection (3)(d) – Inside Lobbying

(3) No public servant shall: (d) Perform (3) No public servant shall: (d) Perform any service for any compensation during any service for any compensation during his term of office or employment by which his term of office or employment by which he attempts to influence a decision of the he attempts to influence a decision of the authority of the governmental entity of authority of the governmental entity of which he is a member.which he is a member.

(You cannot be paid to lobby your own (You cannot be paid to lobby your own board or office.)board or office.)

Subsection (3)(e) – Subsection (3)(e) – Post Government EmploymentPost Government Employment

(3) No public servant shall: (e) Perform (3) No public servant shall: (e) Perform any any serviceservice for any for any compensationcompensation for for any any person or businessperson or business after after terminationtermination of his office or of his office or employment in relation to any employment in relation to any case, case, decision, proceeding or applicationdecision, proceeding or application with respect to which he was with respect to which he was directly directly concerned or in which he personally concerned or in which he personally participatedparticipated during the period of his during the period of his service or employment.service or employment.

Subsection (3)(e) – Subsection (3)(e) – Post Government EmploymentPost Government Employment

Applies Applies afterafter someone leaves someone leaves government.government.

If you worked on a matter while If you worked on a matter while you were in government, you you were in government, you cannot work on that cannot work on that same mattersame matter in the private sector.in the private sector.

But a former government But a former government employee employee can workcan work for a for a government contractor on other government contractor on other matters.matters.

Section 25-4-105(4) – Section 25-4-105(4) – Exceptions to Subsection (3)Exceptions to Subsection (3)

These exceptions These exceptions onlyonly apply to apply to Subsection (3) and Subsection (3) and notnot to any other to any other provisions of law.provisions of law.

Can apply to a government employee Can apply to a government employee but but does not protectdoes not protect a board member a board member from a violation of Section 109 or from a violation of Section 109 or Section 25-4-105(2). The employee Section 25-4-105(2). The employee would still have to would still have to recuserecuse himself or himself or herself from any action which might herself from any action which might otherwise violate Section 25-4-105(1).otherwise violate Section 25-4-105(1).

Section 25-4-105(5) – Section 25-4-105(5) – Insider InformationInsider Information

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

Section 25-4-105(5) – Section 25-4-105(5) – Insider InformationInsider Information

Comes up most often in Comes up most often in connection with economic connection with economic development.development.

Nonpublic information may not be Nonpublic information may not be revealed if it revealed if it mightmight result in a result in a monetary benefit to monetary benefit to anyoneanyone..

Could apply to a former public Could apply to a former public servant.servant.

THE STATEMENT OF THE STATEMENT OF ECONOMIC INTERESTECONOMIC INTEREST

Intended to disclose sources Intended to disclose sources of a public servant’s income of a public servant’s income

but not amounts.but not amounts.

Persons Required to File Persons Required to File Elected officials, except members of levee boards Elected officials, except members of levee boards

and election commissioners;and election commissioners; Members of all public school boards, whether Members of all public school boards, whether

elected or appointed;elected or appointed; Candidates for elected office and persons Candidates for elected office and persons

appointed to fill a vacancy in an elected office;appointed to fill a vacancy in an elected office; Executive directors or heads of state agencies Executive directors or heads of state agencies

and the presidents and trustees of all colleges and the presidents and trustees of all colleges and universities;and universities;

Members of any state board, commission, or Members of any state board, commission, or agency, except advisory boards or commissions;agency, except advisory boards or commissions;

Board members and executive directors of Board members and executive directors of some some local economic development entities local economic development entities and and all all airport authoritiesairport authorities..

Filing DatesFiling Dates

Incumbent office holders must file on Incumbent office holders must file on or before May 1 of each year.or before May 1 of each year.

Candidates for office in primary, Candidates for office in primary, special, or general elections must file special, or general elections must file within 15 days after qualifying.within 15 days after qualifying.

Appointees to offices required to file Appointees to offices required to file must submit a disclosure form within must submit a disclosure form within 30 days of their appointment.30 days of their appointment.

ContentsContents Discloses the sources of an individual’s Discloses the sources of an individual’s

income, not specific amounts.income, not specific amounts. Covers previous calendar year.Covers previous calendar year. Requires listing the name and address of all Requires listing the name and address of all

businesses in which filer or household businesses in which filer or household member held a position or interest or member held a position or interest or received income.received income.

Must name public bodies from which filer or Must name public bodies from which filer or household members received income.household members received income.

No later than January 1, 2010, the No later than January 1, 2010, the statement of economic interest will only be statement of economic interest will only be filed online at the Commission’s website.filed online at the Commission’s website.

THE COMPLAINT THE COMPLAINT PROCEDUREPROCEDURE

Investigation and Investigation and Enforcement of Ethics in Enforcement of Ethics in Government ViolationsGovernment Violations

No criminal provisionsNo criminal provisions Ethics Commission Ethics Commission

investigates:investigates:

1.1. Violations of law by public Violations of law by public servants; andservants; and

2.2. Failure to file financial Failure to file financial disclosure information disclosure information required by law.required by law.

Complaint ProcessComplaint Process

Sworn complaint must be filed alleging a Sworn complaint must be filed alleging a violation of law by a public servant before violation of law by a public servant before an investigation can be conducted.an investigation can be conducted.

If investigation is authorized by If investigation is authorized by Commission, it is conducted before Commission, it is conducted before respondent is notified.respondent is notified.

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

are strictly confidential, and breach of are strictly confidential, and breach of confidentiality constitutes a crime. confidentiality constitutes a crime.

Enforcement Enforcement Commission will hold hearings to Commission will hold hearings to

determine guilt and to impose penalties.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 Commission will impose fines, censures

and equitable remedies on elected and and equitable remedies on elected and non-elected public servants. non-elected public servants.

Commission can only Commission can only recommendrecommend that that Hinds County Circuit Court remove an Hinds County Circuit Court remove an official or suspend or demote an employeeofficial or suspend or demote an employee

Fines and Other Penalties Fines and Other Penalties New procedure for fining late filers. New procedure for fining late filers.

Thirty-day grace period, followed by Thirty-day grace period, followed by written notice, followed by fifteen-day written notice, followed by fifteen-day grace period, followed by fines of $10 grace period, followed by fines of $10 per day.per day.

Fine for refusing to file the SEI is Fine for refusing to file the SEI is doubled to $10,000. Misdemeanor is doubled to $10,000. Misdemeanor is committed when filer has not filed one committed when filer has not filed one year after notice of delinquency.year after notice of delinquency.

Maximum fine for ethics violation is Maximum fine for ethics violation is doubled to $10,000.doubled to $10,000.

ADVISORY OPINIONSADVISORY OPINIONS

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

ADVISORY OPINIONSADVISORY OPINIONS Commission issues anonymous advisory Commission issues anonymous advisory

opinions every month to public servants who opinions every month to public servants who need advice about complying with the Ethics need advice about complying with the Ethics Law.Law.

Opinion must be requested in writing by a Opinion must be requested in writing by a public servant or candidate for elected office. public servant or candidate for elected office.

If you get an opinion from the Ethics If you get an opinion from the Ethics Commission, and you follow it, you are Commission, and you follow it, you are immune from liability under the Ethics Law.immune from liability under the Ethics Law.

Commission’s staff gives informal guidance Commission’s staff gives informal guidance based on past opinions, but the only way to based on past opinions, but the only way to be protected from liability is to obtain an be protected from liability is to obtain an official written opinion. official written opinion.

STAFF OPINIONSSTAFF OPINIONS

Commission can authorize executive Commission can authorize executive director to issue emergency opinions director to issue emergency opinions between Commission meetings which between Commission meetings which offer limited protection from liability.offer limited protection from liability.

Must be based upon prior decisions, Must be based upon prior decisions, are not binding on the commission, are not binding on the commission, will not be published, and must be will not be published, and must be ratified or rejected by the ratified or rejected by the commission at the next commission commission at the next commission meeting.meeting.

NEW JURISDICTIONNEW JURISDICTION

Two separate processes Two separate processes are created for addressing are created for addressing disputes arising under the disputes arising under the Open Meetings ActOpen Meetings Act and and

Public Records ActPublic Records Act..

OPEN MEETINGS ACTOPEN MEETINGS ACT

Ethics Commission is empowered to enforce Ethics Commission is empowered to enforce the Open Meetings Act as follows. the Open Meetings Act as follows.

Complaint is filed with Commission. Complaint is filed with Commission. Complaint is sent to public body, which can Complaint is sent to public body, which can respond. Commission can dismiss complaint respond. Commission can dismiss complaint or hold a hearing.or hold a hearing.

Ethics Commission may order public body to Ethics Commission may order public body to comply with law.comply with law.

Ethics Commission can mediate Open Ethics Commission can mediate Open Meetings disputes.Meetings disputes.

Either party may appeal Either party may appeal de novode novo or enforce or enforce Ethics Commission order in local chancery Ethics Commission order in local chancery court.court.

PUBLIC RECORDS ACTPUBLIC RECORDS ACTProcedure for resolving Public Records disputes.Procedure for resolving Public Records disputes. Any person may request an opinion from the Any person may request an opinion from the

Ethics Commission about whether a public Ethics Commission about whether a public body has violated the Public Records Act by body has violated the Public Records Act by denying a request for records. denying a request for records.

A copy of the opinion request will be sent to A copy of the opinion request will be sent to the public body, which can respond. the public body, which can respond.

The Commission can issue a nonbinding The Commission can issue a nonbinding opinion. opinion.

If the dispute is not resolved voluntarily, then If the dispute is not resolved voluntarily, then the person requesting the opinion must file a the person requesting the opinion must file a lawsuit in chancery court to compel lawsuit in chancery court to compel production of the public records.production of the public records.

HOUSE BILL NO. 474 Defines “incident report,” “investigative Defines “incident report,” “investigative

report” and “law enforcement agency.”report” and “law enforcement agency.” Incident report must include identity of Incident report must include identity of

person arrested, date, time, location person arrested, date, time, location and nature of offense and a narrative.and nature of offense and a narrative.

Incident report Incident report mustmust be disclosed. be disclosed. Investigative reports may contain Investigative reports may contain

detailed information about crime and detailed information about crime and victim.victim.

Investigative report Investigative report does notdoes not have to be have to be disclosed.disclosed.

Contact UsContact Us

Tom Hood or Chris GrahamTom Hood or Chris GrahamMississippi Ethics CommissionMississippi Ethics CommissionPost Office Box 22746Post Office Box 22746146 E. Amite Street146 E. Amite StreetJackson, Mississippi 39225-2746Jackson, Mississippi 39225-2746Phone: 601-359-1285Phone: 601-359-1285Fax: 601-354-6253Fax: 601-354-6253www.ethics.state.ms.uswww.ethics.state.ms.usinfo@ethics.state.ms.usinfo@ethics.state.ms.us