Ethics Commission’s final order: Law does not require Legislature to meet in public

by Bobby Harrison, Mississippi Today
December 14, 2022

Members of the Mississippi Ethics Commission by a 5-3 vote Wednesday reiterated their belief that the state Legislature, which appropriates more than $20 billion annually in state and federal funds, is not bound by the open meetings law.

In reaching the conclusion, the majority said the Ethics Commission, a state agency, could not rely on guidance from the Mississippi Constitution.

The constitution states in Section 58 “the doors of each house in session or in committee of the whole, shall be kept open.”

Five members of the Ethics Commission said they were required by law to rule only on issues related to the state’s open meetings law and the law, they claimed, does not include the Legislature as a public body.

Wednesday’s meeting was the third one this month where the commission grappled with the issue. The order adopted Wednesday saying the Legislature is not a public body as defined by the open meetings law was a final order.

The issue arose from a complaint filed by the Mississippi Free Press saying House Speaker Philip Gunn was 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 or enough members to conduct business.

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 Free Press and Mississippi Center of Justice said Wednesday it would appeal the Ethics Commission ruling.

“Although the (state) Constitution requires the Legislature to keep its doors open when in session, the Open Meetings Act is even more comprehensive and would require that other meetings of legislators, like the Republican Caucus, be open to the public when they constitute a quorum and are discussing public business,” said Rob McDuff, a Center for Justice lawyer. “We are appealing because we believe the Ethics Commission got it wrong, but the Legislature could easily fix this by requiring itself to live up to the standards it requires of other public bodies.”

Commissioner Maxwell Luter of Tylertown offered a proposal that said while the commission does not have the authority to rule on constitutional issues, it could not ignore what the state constitution said. For that reason, he said, the commission should not rule and leave it to the courts to make a final decision.

Luter said the public perception of the Ethics Commission was at stake. He said it “is very important to know we (Ethics Commission members) make just decisions.”

Commissioner Ron Crowe of Brandon, the former executive director of the Ethics Commission, also opposed the finding that the Legislature is not a public body. He said the issue is “eerily” similar to an issue that arose with the state constitution’s conflict of interest provision. In the 1980s the commission interpreted the provision as prohibiting certain people, such as public school teachers, from serving in the Legislature.

Instead, of making that ruling, Crowe said the commission opted to allow the Legislature to address it. Ultimately, the courts sided with the Ethics Commission.

Commissioner Robert Waites of Brandon, a former House attorney in the 1980s, also opposed the finding that the Legislature is not a public body under the open meetings law.

The five commissioners who passed the motion saying the Legislature is not a public body are long-time Chairman Ben Stone of Gulfport, Vice Chair Sean Milner of Clinton, Stephen Burrow of Pascagoula, Erin Lane of Ridgeland and Samuel Kelly of Madison.

Most of the five said they believe the Legislature should be a public body, but that the open meetings law is ambiguous on whether it applied to the Legislature. And if the law is ambiguous, then they had no choice but to rule that the Legislature is not covered.

But Milner said, “I don’t believe it is ambiguous. I think the law is clear (that it does not apply to the Legislature) once we apply proper interpretation.”

The law says most legislative committees are bound by open meetings requirements, but does not specifically list the Legislature among those public bodies that are included. McDuff, the Center for Justice attorney, pointed out the law says the open meetings mandate also applies “to any other policymaking entity.” Since the Legislature is the state’s primary “policymaking entity,” the law, of course would apply to lawmakers, McDuff said.

But a majority of the commission said the phrase “policymaking entity” referred to various executive boards, not the Legislature.

Under the nation’s and state’s system of checks and balances, legislators, including the Mississippi Legislature, generally make laws or policy and the executive agencies carry out those policies and laws.

The Ethics Commissioner members are appointed by the governor, speaker, lieutenant governor, and chief justice of the Supreme Court.

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

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