MISSISSIPPI ETHICS COMMISSION Miss Association of School Business

MISSISSIPPI ETHICS COMMISSION Miss. Association of School Business Officials Jackson Hilton February 11, 2015 Ethics and the School Business Office

Three Areas of Jurisdiction n Ethics in Government Law n Public Records Act n Open Meetings Act

ADVISORY OPINIONS

ADVISORY OPINIONS n n Commission issues anonymous advisory opinions every month to public servants who need advice about complying with the Ethics Law. Opinion must be requested in writing by a public servant or candidate for elected office. If you get an opinion from the Ethics Commission, and you follow it, you are immune from liability under the Ethics Law. Commission’s staff gives informal guidance based on past opinions, but the only way to be protected from liability is to obtain an official written opinion.

THE COMPLAINT PROCEDURE

Complaint Process n n Sworn complaint must be filed alleging a violation of law by a public servant before an investigation can be conducted. If investigation is authorized by Commission, it is conducted before respondent is notified. Respondent has 30 days to file a response. All investigative proceedings and records are strictly confidential, and breach of confidentiality constitutes a crime.

Enforcement n n Commission holds hearings to determine guilt and to impose penalties. Appeals go to Hinds County Circuit Court. Commission can impose fines up to $10, 000, censures and equitable remedies on all public servants. Commission can only recommend that Hinds County Circuit Court remove an official or suspend or demote an employee

THE STATEMENT OF ECONOMIC INTEREST

Persons Required to File n n n Elected officials, except members of levee boards and election commissioners; Members of all public school boards, whether elected or appointed; Candidates for elected office and persons appointed to fill a vacancy in an elected office; Executive directors or heads of state agencies and the presidents and trustees of all colleges and universities; Members of any state board, commission, or agency, except advisory boards or commissions; Board members and executive directors of local economic development entities and airport authorities.

Filing Dates n Incumbents – May 1 of each year. n Candidates – within 15 days after qualifying. n Appointees – within 30 days of appointment.

Contents n n n Discloses the sources of an individual’s income, not specific amounts. Covers previous calendar year. Requires listing name and address of all businesses in which filer or household member held a position or interest or received income. Must name public bodies from which filer or household members received income. Can only be filed online at the Commission’s website.

ETHICS IN GOVERNMENT LAW

Eight Basic Prohibitions n n n n Board Member Contracts Use of Office Contracting Purchasing Goods and Services Purchasing Securities Insider Lobbying Post Government Employment Insider Information

Section 109, Miss. Constitution of 1890 n n n No public officer or member of the legislature shall be interested, directly or indirectly, in any contract with the state, or any district, county, city, or town thereof, authorized by any law passed or order made by any board of which he may be or may have been a member, during the term for which he shall have been chosen, or within one year after the expiration of such term. n n n Section 109 only applies to members of boards and the Legislature. Notice the prohibition is against an interest, not against an act. There must be some sort of contract. It need not be a written contract. The conflict arises when the board funds or otherwise authorizes the contract. Even if the individual member does not vote, he or she may be in violation. The prohibition continues until a former official has been out of office for one year.

Advisory Opinion 13 -024 -E A school board member may have an interest in a Sixteenth Section lease only when the lease was authorized before the school board member took office, and the school board will take no action on the lease during the board member’s term or for one year thereafter.

Advisory Opinion 12 -001 -E School board member may be employed by school district’s depository bank when an hourly employee who does not receive a bonus based upon bank profits. But board member must recuse from any board action which would benefit the bank. Section 25 -4 -105(1). The exception provided in Section 25 -4105(4)(a) will apply under these facts.

Advisory Opinion 14 -010 -E The former spouse of a current school board member may be employed by the school district. If the school board member is financially independent from the former spouse, no violation of Section 109 or Section 25 -4 -105(2) should occur if the former spouse is employed by the district. However, the school board member must recuse himself or herself from any matter that could result in a monetary benefit to the school board member’s children, pursuant to Section 25 -4 -105(1).

Advisory Opinion 14 -028 -E A retired school principal may accept an appointment to the board of trustees for the school district from which the principal retired. The one-year trailer in Section 109 and Section 25 -4 -105(2) only applies to former members of public boards and will not apply to the retired school principal.

Section 25 -4 -105(1) No public servant shall use his official position to obtain, or attempt to obtain, pecuniary benefit for himself other than that compensation provided for by law, or to obtain, or attempt to obtain, pecuniary benefit for any relative or any business with which he is associated.

Section 25 -4 -105(1) n n n The statute does not require a public servant misuse his or her position. To avoid a violation, a public servant must totally and completely recuse himself or herself from the matter giving rise to the conflict. A board member must leave the board meeting before the matter comes up for discussion, may only return after the matter is concluded, and must not discuss the matter with anyone. An abstention is considered a vote with the majority and is not a recusal. The minutes of the meeting should accurately reflect the recusal. Recusal does not prevent other violations.

Section 25 -4 -105(1) “Relative” is the public servant’s n spouse, n child, n parent, n sibling (brothers and sisters) or n spouse of a relative (in-laws).

Advisory Opinion 10 -035 -E A school board member whose financially independent relative is employed by the school district may not participate in discussions and actions approving the annual school district budget. Only when a board member’s recusal would result in the loss of a quorum and render the board unable to act may a board member with a relative employed by the district participate in deliberation and action on the annual budget without violating Section 25 -4 -105(1).

Advisory Opinion 10 -067 -E A food services director for a school district may not hire her husband or supervise her husband pursuant to Section 25 -4 -105(1). However, the Ethics in Government Law does not prohibit a food services director from hiring her husband’s niece, although it may be prohibited by other statutes.

Advisory Opinion 14 -028 -E If new school board member and sibling are indeed financially independent, then sibling can remain employed by district and no violation of Section 109 or Section 25 -4 -105(2) should occur, but the board member must recuse himself or herself from any matter which would result in a pecuniary benefit to the relative, in compliance with Section 25 -4 -105(1).

Section 25 -4 -105(1) ‘Business with which he is associated’ means public servant or his relative is n officer, director, owner, partner, employee n holder of more than ten percent (10%) of the fair market value or n from which he or his relative derives more than $2, 500 in annual income or n over which such public servant or his relative exercises control.

Advisory Opinion 10 -006 -E A member of a school board may also serve as an officer of a Parent Teacher Organization (PTO) within the same school district. So long as the PTO is not receiving any funds from the district, no violation of Section 109 or Section 25 -4 -105(2) should arise. But the school board member must fully recuse from any action which would result in a pecuniary benefit to the PTO in compliance with Section 25 -4 -105(1).

Advisory Opinion 10 -041 -E A school superintendent may not participate in school district actions benefiting a nonprofit corporation when the superintendent also serves on the board of directors of the corporation, pursuant to Section 25 -4 -105(1). The superintendent should resign from the board of directors of the nonprofit corporation before the school district takes further action.

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

Advisory Opinion 14 -008 -E A business owned by a school teacher may not serve as a contractor to the school district which employs the teacher. Section 25 -4105(3)(a) prohibits a teacher from having a material financial interest in a business that serves as a contractor to his or her own school district.

Advisory Opinion 10 -104 -E A school district may not continue to do business with a hardware store which employs a member of the school board. Pursuant to Section 25 -4 -105(3)(a), a public servant of a school district may not have a material financial interest in a business which is a contractor, subcontractor or vendor to the district. None of the exceptions codified in Section 25 -4 -105(4) are applicable under these circumstances.

Advisory Opinion 13 -011 -E A school district may make routine purchases from the only hardware store in the county when the store is owned by a school district employee. While mere inconvenience does not make the availability of alternative vendors unreasonable, the statutory exception codified in Section 25 -4105(4)(d) applies to this particular case, and the school district may purchase from the hardware store owned by the employee.

Advisory Opinion 14 -031 -E A county supervisor may be employed by a county school district. While the supervisors approve the ad valorem tax levy for the district, the supervisors are not authorizing a contract between the district and the supervisor, as proscribed in Section 109 and Section 25 -4 -105(2). Also, the county and district are separate governmental entities, and no violation of Section 25 -4 -105(3)(a) will result.

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

Subsection (3)(b) – The Purchaser Prohibition For example, this subsection prohibits a government employee or official from purchasing anything at an auction or other sale conducted on behalf of his or her governmental entity.

Subsection (3)(e) – Post Government Employment (3) No public servant shall: (e) Perform any service for any compensation for any person or business after termination of his office or employment in relation to any case, decision, proceeding or application with respect to which he was directly concerned or in which he personally participated during the period of his service or employment.

Section 25 -4 -105(4) – Exceptions to Subsection (3) n n These exceptions only apply to Subsection (3) and not to any other provisions of law. Can apply to a government employee but does not protect a board member from a violation of Section 109 or Section 25 -4105(2). The employee would still have to recuse himself or herself from any action which might otherwise violate Section 25 -4 -105(1).

Section 25 -4 -105(5) – Insider Information (5) No person may intentionally use or disclose information gained in the course of or by reason of his official position or employment as a public servant in any way that could result in pecuniary benefit for himself, any relative, or any other person, if the information has not been communicated to the public or is not public information.

OTHER LAWS Not part of Ethics Law but do relate to schools.

§ 37 -9 -17: Step-Aside in Hiring n n n Principal or superintendent cannot recommend employment of relative. Board may designate someone else to recommend relative. Cannot be used for central office staff. Limited to 2 jobs per school. Noninstructional employee must have been previously employed and cannot be paid more than statewide average.

Advisory Opinion 14 -039 -E A school superintendent’s siblings may be employed as a principal or counselor in the same district. If the school board’s designee recommends a superintendent’s siblings and the superintendent fully and completely recuses himself or herself from the hiring and supervision process, then the superintendent does not violate Section 25 -4 -105(1).

Advisory Opinion 10 -077 -E Superintendent’s spouse may be employed in a position at a particular school under the supervision of a principal if the school board designates someone other than the superintendent to make the employment recommendation. However, superintendent’s spouse may not be employed in the school district central office, pursuant to Section 25 -4 -105(1) and Section 37 -9 -17.

§ 37 -9 -21: School Nepotism n Cannot hire licensed employee if related within third degree to majority of board. n Board member cannot vote on licensed employee related within third degree. n Contract is null and void if it violates this statute.

§ 37 -7 -333: Bank Contracts n If school board member has connection to a bank which bids on depository contract, then don’t open any of the bids. n Superintendent sends all sealed bids to state treasurer, who opens bids and selects depository.

Section 210, Miss. Constitution n No superintendent, trustee or teacher may have any interest in the sale of anything to any public school in the state.

PUBLIC RECORDS ACT

PUBLIC RECORDS ACT n n n All documents and other records, including electronic records, related to government business are public records. Everyone has the right to inspect or copy. Government can recoup actual cost of retrieving and/or copying public records. Many records are exempted. If record contains exempt material, government may have to redact and copy.

PUBLIC RECORDS ACT Response and Costs n n Public body must respond to public records request within 1 working day, if no policy is in place. Public body may adopt a policy allowing up to 7 working days to respond. Denial of request must be in writing. Public body may require prepayment of reasonably calculated actual costs of searching, reviewing, redacting, duplicating and mailing public records.

PUBLIC RECORDS ACT Confidential Business Info. n n n Public records furnished by third parties which contain trade secrets or confidential commercial or financial information are exempt from disclosure. Public body must give notice to third party which must have reasonable time to obtain protective order. If protective order is not obtained by third party, then public body must produce.

PUBLIC RECORDS ACT Some Statutory Exemptions n n n n Academic records, § 37 -11 -51. Attorney work product, § 25 -1 -102. Individual tax records, § 27 -3 -77. Licensure application and examination, § 73 -52 -1. Personnel files, § 25 -1 -100. Trade secrets, proprietary commercial and financial information, § 79 -23 -1. Workers' compensation records, § 71 -3 -66.

Model Public Records Rules n n n Nonbinding unless you adopt them Designed for use by all state and local agencies Can be modified to suit your needs Provide guidance on questions which are not answered in the law and have not been addressed by courts Posted on Ethics Commission web site

ENFORCEMENT n n n n Complaint is filed with Commission. Complaint is sent to public body, which can respond. Commission may dismiss complaint, make preliminary finding or hold a hearing. Commission can issue subpoenas and conduct in camera review of documents. Commission can order production of records. Commission can mediate disputes. Either party may appeal or enforce Ethics Commission order in local chancery court. Complaints can still bypass the Ethics Commission and go straight to chancery court.

Public Records Opinions R-13 -002: Butts vs. Tupelo School District n. While the district may be required to produce documents that simply reflect the total amount billed by an attorney, the District cannot be required to disclose information in detailed invoices from an attorney that contain attorney-client privileged communications or information subject to the attorney work product doctrine.

Public Records Opinions R-14 -001: Miller vs. Rankin Co. Sch. Dist. n. Request to search every file at the school district for reference to the word “Bible” fails to describe identifiable public records and can be denied. n. Electronic records like teachers’ emails are public records if they concern any work of the school district, unless exempted or privileged. n. District may collect fees to reimburse it for actual cost of searching, reviewing and/or duplicating and, if applicable, mailing copies of public records. Any services included must be at the pay scale of the lowest level employee or contractor competent to respond to the request.

Public Records Opinions R-14 -009: Greenwood Commonwealth vs. Leflore Co. Sch. Dist. /State Dept. of Ed. n. Letters of nonrenewal are exempt personnel records. n. A list of employees who received letters of nonrenewal may also be exempt. R-14 -017: Rogers vs. Rankin Co. Sch. Dist. n. School district may charge attorney fees to review detailed legal bills for privileged or confidential information.

Public Records Opinions n. R-09 -008, Davis vs. Univ. of Southern Miss. Settlement agreement with former student worker was an “education record” under FERPA (Family Educational Rights and Privacy Act, 20 U. S. C. § 1232. ) and was exempt from disclosure under the Miss. Public Records Act. n. R-12 -009: Mosher vs. Ocean Springs S. D. Score sheets from cheerleader tryouts are protected from disclosure under Section 37 -15 -3 and FERPA.

Public Records Opinions n. R-12 -013: Greenwood Commonwealth vs. State Dept. of Education To comply with FERPA, student information must be redacted from records so that individual students cannot be identified. n. R-08 -009: Clarion-Ledger vs. Univ. of Miss. The public employment contracts of public employees, (coaches and athletic director) which form the basis for their compensation with public funds, are not exempted personnel records as described in Section 25 -1 -100.

Contact Us Mississippi Ethics Commission Post Office Box 22746 660 North St. , Suite 100 -C Jackson, Mississippi 39225 -2746 Phone: 601 -359 -1285 Fax: 601 -359 -1292 www. ethics. state. ms. us info@ethics. state. ms. us