Gunn hopes favorable ruling on GOP closed-door meetings provides second Ethics Commission win

by Bobby Harrison, Mississippi Today
April 24, 2022

Close attention will be focused on the normally low-key Mississippi Ethics Commission when it considers and rules on whether members of the House Republican Caucus, led by Speaker Philip Gunn, violate the state's open meeting law when they meet behind closed doors.

The open meetings case might be the most high-profile issue to be considered by the Ethics Commission since 2013 — another case involving the Mississippi House and Speaker Gunn.

READ MORE: Speaker Philip Gunn uses secret Capitol meetings to pass his bills and restrict public debate. Is it legal?

In that case the Ethics Commission, in a 5-3 vote, reversed previous rulings to find in favor of Gunn.

The case involved whether House members who worked for health care providers could vote on funding for Medicaid, which provides the largest chunk of revenue for many health care providers in Mississippi. For years, based on Ethics Commission rulings, legislators who worked in the health care profession did not vote on Medicaid funding bills because of the perceived conflict of interest.

This became an issue in the 2013 session when House Democrats blocked the Medicaid bill, demanding a vote on expanding Medicaid to provide health care coverage to primarily the working poor. Gunn and the Republican majority opposed expanding Medicaid, but for various reasons did not want to vote on it.

The problem was that the state Constitution requires approval from a majority of the membership, instead of just those voting, to pass a budget bill. In other words, 63 yes votes were needed in the 122-member House. With House members not voting based on the Ethics Commission ruling, the vote of a majority of the membership could not be garnered to approve the Medicaid appropriations bill.

The 2013 regular session ended with no Medicaid budget. Then-Gov. Phil Bryant said he believed he could run the Division of Medicaid without legislative funding. Not many, though, took that claim seriously.

Instead, Gunn asked the Ethics Commission to rule on whether the House members who worked in the health care profession had a conflict of interest if they voted on the Medicaid budget.

The commission reversed previous rulings that previously said the members should not vote because of the conflict of interest.

“This is a difficult decision for all of us,” said Paul Breazeale of Jackson, then a member of the Ethics Commission and part of the majority who voted to reverse past rulings. “We do have rulings that differ in the past. It is a timely issue.”

Tom Hood, the executive director of the commission but not a voting member, defended the ruling. He said since the previous Ethics Commission ruling barring legislators employed in health care from voting on Medicaid, there had been state Supreme Court rulings saying legislators whose spouses were teachers could vote on education funding. If the spouses of teachers could vote on education funding, then legislators working in health care should be able to vote on Medicaid funding, the commission reasoned.

The most fascinating part of the ruling was that the Ethics Commission added that legislators working in health care could vote no on Medicaid expansion. But members who would vote yes should not vote because that would be a conflict of interest.

The mental gymnastics for the commission to reach that conclusion remains a mystery for many nearly a decade later.

In the current case before the Ethics Commission, Gunn will be asking the panel to conclude that his Republican Caucus meetings do not violate state law even though the state Supreme Court has ruled in past cases that if a majority of a governmental body meets behind closed doors to discuss policy, it is considered a violation of the open meetings law.

“A public body must strictly comply with the (Open Meetings) Act when a quorum assembles and discusses a matter under its supervision, control, jurisdiction or advisory power,” the commission wrote in a separate case recently involving a legislative committee.

The 77-member Republican Caucus constitutes much more than a majority of the 122-member House and meets regularly where issues before the Legislature are discussed.

In a late January interview with Mississippi Today where Hood was asked if the House Republican Caucus meeting violated state law, he said, “Neither the courts nor the Ethics Commission have dealt with a case on those facts.”

Gunn argues that the meetings do not violate state law because the Republican caucus is not an official “public body.” But the flip side of that is the Republican caucus does include enough members of the Mississippi Legislature to take official action.

It is of note that, based on research done by the state of Maine, 12 states have provisions in their law saying party caucuses are exempt from their open meetings laws.

Mississippi law does not have such an exemption.

This article first appeared on Mississippi Today and is republished here under a Creative Commons license.