openmeetings

Senate bill would override Ethics Commission ruling that Legislature is not public body

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Senate bill would override Ethics Commission ruling that Legislature is not public body

In a controversial December ruling, the Mississippi Ethics Commission said the is not subject to the ’s open meetings law.

But a new Senate bill, pending before the Accountability, Efficiency and Transparency Committee, would clarify that the Legislature is covered by the open meetings law.

“I just think you should be transparent,” said freshman Sen. Jason Barrett, R-Brookhaven, who filed Senate Bill 2667. “…I believe you should be transparent.”

The bill is designed “to clearly subject the Legislature to the provisions of the open meetings law.”

The Ethics Commission by a 5-3 vote in December ruled that the Legislature was exempt from the state’s open meeting. The ruling was eyebrow-raising since in no place does the law specifically say that the Legislature is exempt, even though it does list entities that are not covered by the law such as law enforcement and jury deliberations. The law goes on to say all policymaking entities are supposed to meet in public.

The issue arose from an ethics 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 of the 122-member House, meets routinely behind closed doors. The Mississippi Constitution mandates that a majority of either the House or Senate is a quorum or enough members to conduct business. Plus, the constitution mandates for the Legislature to meet in public.

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.

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

At one point, Senate Republicans also were contemplating holding regular caucus meetings, but opted not to based on the belief such meetings would violate the open meeting law.

Barrett said he did not want to comment on whether he believed the Ethics Commission made the right ruling. He also said he was not forming an opinion on the recent House Republican Caucus ruling.

But if his bill becomes law, it presumably would stop the House from having such meetings. House Republicans have continued to hold the meetings this session. Various sources told Mississippi Today that hours before the House recently took up and passed legislation banning gender affirming surgery and drugs for age 18 and under, the bill was discussed behind closed doors in a House Republican Caucus meeting.

Barrett’s bill has 19 — mostly Republican — co-sponsors in the 52-member Senate. If the bill does pass the Senate, it will need to be OK’d by House leadership to be considered in that chamber.

Senate Finance Committee Chairman Josh Harkins, R-Brandon, also has filed legislation to bring forth the entire open meetings law. While he made no changes in the bill, it would allow him and other legislators to make changes to the law through the amendment process during the 2023 session.

Barrett’s bill also would allow those filing a complaint alleging an entity was violating the open meetings law to bypass the Ethics Commission and go straight to chancery court for a ruling.

Rulings of the Ethics Commission already can be appealed to chancery court.

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

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

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

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

Members of the Mississippi Ethics Commission by a 5-3 vote Wednesday reiterated their belief that the , 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 , Vice Chair Sean Milner of Clinton, Stephen Burrow of , Erin Lane of Ridgeland and Samuel 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 on Mississippi Today and is republished here under a Creative Commons license.

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Ethics Commission postpones finalizing order stating Legislature not bound by open meetings law

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Ethics Commission postpones finalizing order stating Legislature not bound by open meetings law

Members of the Mississippi Ethics Commission postponed on Thursday adopting “a final order” to support their controversial conclusion that the Mississippi is not bound by the ’s open meetings law.

Long-time Commission Chair Ben Stone proposed placing in the final order that while the open meetings law does not specifically cite the Legislature, the Mississippi Constitution clearly mandates that the Legislature conduct its business in the open.

While Stone said the Ethics Commission is authorized to rule on open meetings issues related solely to the law and is not authorized to interpret the constitution, he said he believes the language related to the constitution could still be included in the final order.

“We are not allowed to interpret it, but we are able to cite it and put it in our opinion,” Stone said at the start of the specially called meeting that was conducted via Zoom. “The Legislature is not going to close its doors regardless of what we do here today.”

The eight-member commission adjourned Thursday without making a final decision, but another meeting for Dec. 14 in an attempt to resolve the issue.

The issue arose in response to a legal challenge by the Mississippi Free Press to the Ethics Commission of whether House Speaker Philip Gunn is violating the state’s open meetings laws when he holds meetings of the Republican Caucus behind closed doors. According to various sources, as reported by Mississippi Today, legislative business is routinely discussed in the closed caucus meetings.

The Republican Caucus consists of 75 of the 122 members of the Mississippi House. A majority constitutes a quorum that is needed for the House to conduct business.

In addressing the issue of the caucus meetings, the Ethics Commission by a 5-3 vote last week ruled that the Legislature is not covered by the open meetings law.

Many members stuck to that opinion in Thursday’s special meeting.

“We believe the Legislature should be open, is required to be open,” said Commissioner Stephen Burrow, but the issue is “outside the jurisdiction of the Ethics Commission.”

He said it is up to a courts, not the Ethics Commission, to make the final decision on whether the Legislature is mandated to be open.

Commissioner Samuel said he believed legislators “clearly intended to keep themselves out” of the open meetings law. The law specifies certain bodies that should be open. It lists that certain legislative committees shall be open, but it does not cite the Legislature as a whole. By the same token, in citing specific entities that shall be exempt from the open meetings law, it also does not mention the Legislature.

The open meetings law specifies that “all official meetings of any public body, unless otherwise provided in this chapter or in the constitution of the United States of America or the state of Mississippi are declared to be public meetings and shall be open to the public at all times.” The law does allow closed sessions of public bodies in certain instances, such as to discuss lawsuits or personnel issues.

The final decision of the Ethics Commission, which consists of political appointees made by the speaker, lieutenant governor, governor and chief justice of the Supreme Court, can be appealed to the courts.

Commissioner Maxwell Luter said he is “very concerned” about the precedent that would be established by saying the Legislature is not covered by the open meetings law. He also said that he feared that such a ruling would negatively impact the perception of the Ethics Commission.

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

Ethics Commission says Legislature not subject to open meetings law

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Ethics Commission says Legislature not subject to open meetings law

The eight-member Mississippi Ethics Commission voted 5-3 Friday that the is not bound by the state’s open meetings law.

The Mississippi Constitution states that “the doors of each house, when in session, or in the committee of the whole, shall be kept open, except in cases which may require secrecy.” The Constitution also says a majority of the House or Senate is a quorum.

The ruling came in a complaint filed by the Mississippi Free Press saying that the House Republican caucus members, which currently consist of 75 of the 122 members, are violating the open meetings law when they meet behind closed doors to discuss policy.

Mississippi Today detailed the activities of the closed door meetings in a story earlier this year during the 2022 session. The story cited reports of various House members and detailed how the caucus meetings were usually the first place rank-and-file House Republicans were informed of details of major policies developed by Speaker Philip Gunn and a handful of other House leaders. And in those meetings, discussions often were held on whether members supported those proposals of the leadership. Caucus members who had questions were urged to speak privately with the relevant committee chairmen — Gunn appointees who are the speaker’s closest allies.

The Senate opted not to have a similar caucus because members expressed concern that it would violate the open meetings law.

Tom Hood, executive director of the Ethics Commission, recommended to the panel that the Legislature did fall under the open meetings law. The commission rejected the findings of its executive director and is to meet in the coming weeks to finalize its opinion on the issue.

The Hood opinion in part read, “It is essential to the fundamental philosophy of the American constitutional form of representative government and to the maintenance of a democratic society that public business undertaken by a quorum of the House of Representatives be performed in an open and public manner. The formation and determination of public policy by a quorum of the House is public business and must be conducted at open meetings.”

Hood had recommended that the commission schedule a hearing to determine whether the House Republican Caucus did in fact meet in private with more than a majority of the House in present to discuss legislative issues. If so, he argued that would be in violation of the opening meetings law. The commission rejected his reasoning.

Gunn and members of the House leadership argued that a party caucus was not a governmental body that would be covered by the open meetings law.

The Hood opinion did not broach the issue of the constitutional provision that seems to mandate the Legislature meet in public. The Ethics Commission is charged in state law with ruling on issues regarding the state’s public records and public meetings laws, but not constitutional matters.

The Ethics Commission is comprised of appointees of the governor, Supreme Court chief justice, speaker and lieutenant governor.

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

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