The Open Meetings Act and - PowerPoint Presentation

The Open Meetings Act and Executive Session MISSISSIPPI ETHICS COMMISSION MISSISSIPPI ETHICS COMMISSION Mississippi Municipal League Small Town Conference October 17, 2019

OVERVIEW OF THE MISSISSIPPI ETHICS COMMISSION The Commission administers and enforces the Ethics in Government Law byKeeping Statements of Economic Interest;Investigating alleged violations of law;Issuing written advisory opinions. The Commission also enforces thePublic Records Act andOpen Meetings Act

OPEN MEETINGS ACT

OPEN MEETINGS ACT “It being essential to the fundamental philosophy of the American constitutional form of representative government and to the maintenance of a democratic society that public business be performed in an open and public manner, and that citizens be advised of and be aware of the performance of public officials and the deliberations and decisions that go into the making of public policy, it is hereby declared to be the policy of the State of Mississippi that the formation and determination of public policy is public business and shall be conducted at open meetings except as otherwise provided herein.” Section 25-41-1, Miss. Code of 1972

OPEN MEETINGSEnforcement 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.Ethics Commission may order public body to comply with law.Ethics Commission may impose $500 fine for first offense, $1,000 for subsequent offense.Ethics Commission can mediate disputes.Either party may appeal or enforce Ethics Commission order in local chancery court.

Public meetings must be open to public.Executive session must follow specific procedure and only for 12 reasons. Notice of meeting must be given, and minutes must be kept.Social gatherings are not “meetings” unless official business is discussed.Act never requires executive session.OPEN MEETINGS ACTThe Basics

WHAT IS A MEETING?

“Public body” is any board, commission, authority, council, department agency, bureau or other entity or committee thereof of the state, political subdivision or municipality. “Meeting” is any gathering of a quorum of the public body, whether in person or by phone, to discuss a matter under the authority of the public body.OPEN MEETINGS ACTDefinitions

Case No. M-14-002; Gregory vs. Columbus City Council Deliberations of a quorum must take place in a proper public meeting.When a quorum of the council splits into separate groups and discusses the same matter of city business with the mayor, a quorum is deliberating, and a “meeting” has occurred.

Case No. M-12-010Jones vs. Yazoo City Bd. Mayor telephoned a quorum of the board to discuss a matter of city business.Does not matter that he called each board member separately.The phone conversations constitute an illegal meeting without notice or minutes.NOT a violation for mayor or individual board members to discuss city business, as long as the conversations do not encompass a quorum discussing same subject.

Case No. M-09-007Hall vs. Miss. Trans. Commn. When a quorum of a public body assembles and discusses a matter under their jurisdiction, a “meeting” has taken place.Does not matter that they took no action.Must provide notice and take minutes.

Case No. M-10-001Mason vs. Aberdeen Bd. of Ald. A chance or impromptu gathering of board members is not necessarily a “meeting.”A public board should be available for social functions with charities, industries and businesses, at which no action is taken and their only function is to listen, without being subjected to the Act. Therefore, a function attended by a public board, whether informal or impromptu, is a meeting within the meaning of the Act only when there is to occur “deliberative stages of the decision-making process that lead to formation and determination of public policy.” Hinds County Board of Supervisors v. Common Cause of Mississippi, 551 So.2d 107, 123 (Miss.1989).

Case No. M-12-020McGovern vs. Starkville Retreats conducted by the Board of Aldermen are meetings subject to the Open Meetings ActEven if no official action is taken at a meeting, minutes must be keptCommittees established by the board to conduct business of the city are subject to the Open Meetings Act

Case No. M-12-023Gilmore v. Holmes Co. Sch. Dist. A panel established by the superintendent to assist the superintendent in performing his or her job is not a “public body” subject to the Open Meetings ActWhile the school board of trustees and any committee thereof qualify as a “public body” under the Open Meetings Act, there was no evidence the panel was created by the board or at the direction of the board.

PUBLIC PARTICIPATION

Case No. M-11-008Smith vs. Town of Summit An agenda and materials that will be distributed to members of the public body must be made available to the public at the time of the meeting. --Section 25-41-5(4).

Case No. M-10-004Cockrell vs. Canton Bd. of Ald. Public body may not ban cameras or other recording devices from an open meeting.Public body may make and enforce reasonable rules for conduct of persons attending meetings.

Case No. M-10-007Townes vs. Leflore Co. Sch. Bd. Public body may make and enforce reasonable rules for conduct of persons attending meetings.Public body is not required to allow members of the public to speak at meetings.

OPEN MEETINGS ACTNotice Regular meetings of some public bodies are set in statute. (depends on form of municipal government) For recess, adjourned, interim or special meetings, notice must be posted in city hall (building where meeting is held) within one hour of calling the meeting.Copy of the notice must be placed in the minutes.

OPEN MEETINGS ACTNotice – Special Meeting Must post notice of called special meetings on web site and email or fax notice not less than 1 hour before the meeting to anyone who requests it. (in addition to posting paper notice)Does not apply to municipalities with population less than 25,000.

Minutes must be kept for all meetings, whether in open or executive session.Minutes must be “recorded” within 30 days after meeting. Minutes must be available for public inspection.OPEN MEETINGS ACTMinutes

Case No. M-12-012Rody vs. Pearl River Co. Bd. Of Sup. “Minutes shall be recorded within a reasonable time not to exceed thirty (30) days after recess or adjournment and shall be open to public inspection during regular business hours.” The term “recorded” means written or drafted. Draft minutes must be made available for public inspection.

Minutes must show: Members present and absent;Date, time and place of meeting;Accurate recording of any final actions;Record, by individual member, of all votes taken;Any other information requested by the public body.OPEN MEETINGS ACTContent of Minutes

Case No. M-12-012Rody vs. Pearl River Co. Bd. Of Sup. The minutes of a public body may, but are not required to, reflect discussions occurring in open session when no action was taken. Minutes are not transcripts. The purpose of the minutes is to record what actions were taken at the meeting, not to record everything that was discussed.

Hinds County Bd. v. Common Cause (1989)The purpose … is to discourage private meetings of public bodies…. The technical requirements of the Act not only enlighten the public that there exists a specific, valid reason for going into executive session, but also make it somewhat onerous and time consuming for the board to do so. A board required by law to follow the procedure of … § 25-41-7 will no doubt be less inclined to go into executive session…. [551 So.2d 107, 112]

By majority vote, public body must enter closed session to discuss whether to declare executive session. A 3/5ths vote of the public body is required to declare executive session.Public body must return to open session and announce the reason for entering executive session. That reason and the votes must be recorded in minutes.Executive Session Procedure

The meeting must begin as an Open Meeting. Miss. Code Ann. § 25-41-7(1)A member must make a motion in open session for a closed determination on whether the Board should declare an executive session. The motion does not require a second, but the vote is taken in open session. Meeting is closed. Miss. Code Ann. § 25-41-7(2)Mandatory Steps

No other business during this closed interim shall be considered until a vote has been taken on whether or not to declare an executive session. Miss. Code Ann. § 25-41-7(2). In order to go into executive session, a majority of three-fifths of those present must vote in favor of it. Miss. Code Ann. § 25-41-7(1)Mandatory Steps

The Board must then state in open session the reason for going into executive session, and this reason and total vote thereon must thereafter be recorded on the minutes of the meeting. Miss. Code Ann. § 25-41-7(3), (5)Mandatory Steps

The vote to go into executive session is applicable only to that particular meeting on that particular day. Miss. Code Ann. § 25-41-7(6) Hinds County Board of Supervisors v. Common Cause of Mississippi, 551 So.2d 107, 110-112 (Miss. 1989).Mandatory Steps

Executive session may be held for 12 reasons only: (a) personnel matters involving individual employees(b) Strategy or negotiations in future or current litigation (c) Security personnel, plans or devices(d) Investigations of misconduct or law violations(e) Legislature may enter executive session for any reason.(f) cases of extraordinary emergency(g) prospective purchase, sale or leasing of lands(h) school board discussions about individual student’s problems(i) preparation of professional licensing exams(j) location, relocation or expansion of a business(k) budget matter which may lead to termination of employee(l) certain PERS board investments *(plus hospital boards)Executive Session Reasons

Case No. M-09-005Cooper vs. Adams Co. Bd. of Supv. “Personnel matters” exception does not apply to issue of funding agency simply because board members disapprove of agency employees.Board may not simply announce “personnel” as reason for entering executive session.Board must announce which exception applies to each individual matter discussed in executive session.

Case No. M-09-006Howell vs. Water Valley Bd. of Ald. Selecting a board attorney is a “personnel matter” which may be discussed in executive session when the board considers the “job performance, character, [and] professional competence” of the attorney.

All members can participate by phone or video conference.They can be in different locations, so long as one location is open to the public. Notice of telephonic meetings must be given 5 days in advance, except in emergency, and must include the public location.OPEN MEETINGS ACTTelephonic Meetings

Meeting must be suspended if phone service is interrupted.Roll call votes are required. Meeting must be recorded by audio (when using telephone) or video (when using video conference), and recording must be kept 3 years.OPEN MEETINGS ACTTelephonic Meetings

Contact Us Mississippi Ethics CommissionPost Office Box 22746660 North Street, Suite 100-CJackson, Mississippi 39225-2746Phone: 601-359-1285Fax: 601-359-1292www.ethics.state.ms.usinfo@ethics.state.ms.us