Ethics Commission contradiction: Members take oath to constitution, but can’t consider it in rulings

by Bobby Harrison, Mississippi Today
December 18, 2022

A majority of the members of the Mississippi Ethics Commission said they were required to ignore what the state constitution said when they made their ruling that the Legislature is not bound by the open meetings law.

“We are not allowed to interpret it,” Commission Chair Ben Stone of Gulfport, who has served on the Ethics Commission since 1997, said of the Mississippi Constitution.

Yet Stone and the other seven members of the Ethics Commission when taking their oath of office swore to “faithfully support the Constitution of the United States and of the state of Mississippi and obey the laws thereof.”

Can an Ethics Commission member ignore the constitution and support it at the same time?

The ruling of the Ethics Commission that the Mississippi Legislature, the most high profile and in terms of influence, the most consequential public body in the state, is not bound by the state’s decades-old open meeting law is a head scratcher.

The Ethics Commission says legally it is bound in its rulings by the law that does not list specifically the Legislature among the public entities that must meet in the open.

The commission goes on to explain that it does not matter that the Mississippi Constitution, which preempts all state law, says “the doors of each house, when in session, or in committee of the whole, shall be kept open.” Commission members say they statutorily cannot interpret the constitution they swore to uphold.

It gets even more contradictory. The open meetings act that the commission says it must adhere to requires the ethics commissioners to refer to the constitution when enforcing the law.

“All official meetings of any public body, unless otherwise provided in this chapter or in the constitutions of the United States of America or the state of Mississippi, are declared to be public meetings and shall be open to the public,” the open meetings law reads.

It appears the Legislature is saying in the law to check with the constitution to determine if a public body is exempt from meeting in public. How can the Ethics Commission, which is tasked by the Legislature with enforcing the open meetings law, do that if its members cannot interpret or, more simply, read the constitution?

The Ethics Commission finalized its ruling responding to a complaint filed by the Mississippi Free Press. The complaint said House Speaker Philip Gunn is violating the open meetings law when the Republican Caucus, which includes 75 members of the 122-member House, meets routinely behind closed doors. The constitution mandates that a majority of either the House or Senate is a quorum.

Mississippi Today has documented, based on multiple accounts, that the House Republican Caucus often discusses policy issues and legislation during the closed-door meetings. When other public bodies have met behind closed doors to discuss policy issues, it has been deemed to be a violation of the open meetings law by the courts.

The ruling of the Ethics Commission will be appealed to the courts. A judge, most definitely, can consider what the Mississippi Constitution says when hearing the case.

And no doubt the judge will study what the open meetings statute actually says. By a 5-3 vote, the Ethics Commission said the Legislature is not covered because the law does not specifically list the Legislature as a public entity that had to meet in the open. Those five commissioners said the law is at the least, ambiguous, and prevents them from ruling that the Legislature is bound by the law.

The law does cite legislative committees as being covered.

The law reads in part, “public body” means any executive or administrative board, commission, authority, council, department, agency, bureau or any other policymaking entity.

Commission members argued that “any other policymaking entity” is referring to the entities that precede that phrase and is not meant as a catch-all phrase that would include most public bodies.

There are two issues with that interpretation. First, later, the law does list specifically public bodies that are exempt from the law, such as law enforcement and juries. It does not mention the Legislature as being exempt.

Plus, many of the entities cited in the law as being mandated by the public meetings law are executive agencies.

Basic civics teaches that executive agencies are not policymaking entities.

On the other hand, in any state and on the national level, the Legislature is the primary policymaking entity.

In Mississippi, the policymaking Legislature spends more than $20 billion in taxpayer funds each year and passes laws (enacts policies) that impact all citizens.

While doing those important things, the Mississippi Ethics Commission says the law contemplates lawmakers are able to meet behind closed doors.

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

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