1997 Regular Session
To: Apportionment and Elections; Appropriations
By: Representative Denny
House Bill 365
AN ACT TO AMEND SECTION 23-15-805, MISSISSIPPI CODE OF 1972, TO PLACE RESPONSIBILITY FOR ENFORCEMENT OF THE CAMPAIGN CONTRIBUTIONS LAWS ON THE MISSISSIPPI ETHICS COMMISSION; TO AMEND SECTION 23-15-811, MISSISSIPPI CODE OF 1972, TO GRANT THE MISSISSIPPI ETHICS COMMISSION SPOT AUDIT AUTHORITY UNDER THE CAMPAIGN FINANCE LAW; TO AMEND SECTION 25-4-19, MISSISSIPPI CODE OF 1972, TO CONFER AUTHORITY ON THE MISSISSIPPI ETHICS COMMISSION TO PERFORM AUDITS AND INVESTIGATIONS, AND TO IMPOSE ADMINISTRATIVE SANCTIONS; TO AMEND SECTIONS 23-15-813, 23-15-815, AND 25-4-17, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; AND FOR RELATED PURPOSES.
SECTION 1. Section 23-15-805, Mississippi Code of 1972, is amended as follows:
23-15-805. (a) Candidates for state, state district, and legislative district offices, and every committee which makes reportable contributions to or expenditures in support of or in opposition to a candidate for any such office, shall file all reports required under this article with the Mississippi Ethics Commission.
(b) Candidates for county or county district office, and every political committee which makes reportable contributions to or expenditures in support of or in opposition to a candidate for such office, shall file all reports required by this section in the office of the circuit clerk of the county in which the election occurs. The circuit clerk shall forward copies of all reports to the Mississippi Ethics Commission.
(c) Candidates for municipal office, and every political committee which makes reportable contributions to or expenditures in support of or in opposition to a candidate for such office, shall file all reports required by this article in the office of the municipal clerk of the municipality in which the election occurs. The municipal clerk shall forward copies of all reports to the Mississippi Ethics Commission.
(d) The Mississippi Ethics Commission, the circuit clerks and the municipal clerks shall make all reports received under this section available for public inspection and copying and shall preserve such reports for a period of seven (7) years.
SECTION 2. Section 23-15-811, Mississippi Code of 1972, is amended as follows:
23-15-811. (a) Any candidate or any other person who shall wilfully and deliberately violate the provisions and prohibitions of this article shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine in a sum not to exceed Three Thousand Dollars ($3,000.00).
(b) In addition to the penalties provided in paragraph (a) of this section, any candidate or political committee which is required to file a statement or report which fails to file such statement or report on the date in which it is due may be compelled to file such statement or report by an action in the nature of a mandamus.
(c) No candidate shall be certified as nominated for election or as elected to office unless and until he files all reports required by this article due as of the date of certification.
(d) No candidate who is elected to office shall receive any salary or other remuneration for the office unless and until he files all reports required by this article due as of the date such salary or remuneration is payable.
(e) In the event that a candidate fails to timely file any report required pursuant to this article but subsequently files a report or reports containing all of the information required to be reported by him as of the date on which the sanctions of paragraphs (c) and (d) of this section would be applied to him, such candidate shall not be subject to the sanctions of said paragraphs (c) and (d).
(f) The Mississippi Ethics Commission may perform audits, investigations or both on either a random or systematic basis of all reports and all those required to report.
SECTION 3. Section 23-15-813, Mississippi Code of 1972, is amended as follows:
23-15-813. (a) For hearings held pursuant to this article, the State Board of Election Commissioners shall appoint one or more hearing officers who shall be former chancellors, circuit court judges, judges of the Court of Appeals or justices of the Supreme Court.
(b) The Mississippi Ethics Commission may seek a court order requiring a political committee to file such statement or report or a civil penalty may be imposed by a hearing officer as provided in this article, or both.
(c) Upon discovering there is probable cause to believe that a political committee required to file has not filed a statement or report complying with applicable provisions of this article within the time specified in this article, the Mississippi Ethics Commission shall obtain from the hearing officer an order setting the time and place of the hearing and shall, by certified mail, send the political committee notice of the maximum amount of the civil penalty that may be imposed and a copy of the order.
(d) A hearing on whether or not to impose a civil penalty and to consider circumstances in mitigation shall be held on the time and at the place specified in the order.
(e) The political committee against whom a penalty may be assessed need not appear at a hearing held under this article, but instead, before the date set for the hearing, may submit written testimony and other evidence, subject to the penalty for false swearing, for entry in the hearing record.
(f) Upon the finding of the hearing officer that a political committee has failed to file any statement or report required by this article, he shall impose a penalty not to exceed an amount equal to One Hundred Dollars ($100.00) or ten percent (10%) of the total contributions or total expenditures required to be reported in the statement or report, whichever is greater, for each violation. The hearing officer may also assess the actual costs of the hearing against the political committee.
(g) After the hearing, the hearing officer shall issue his order, which may be appealed to the circuit court of the county in which the political committee is domiciled, or to the Circuit Court of the First Judicial District of Hinds County in the same manner as provided by law for appeals originating from county courts.
(h) The hearing officer may file the order assessing the penalty, or a certified copy of the order, with the clerk of any circuit court in the state after:
(i) Expiration of the time in which an appeal may be taken; or
(ii) Final determination of the matter on appeal.
(i) The order assessing the penalty shall be enrolled in the judgment roll and may be enforced in the same manner as a judgment.
SECTION 4. Section 23-15-815, Mississippi Code of 1972, is amended as follows:
23-15-815. (a) The Mississippi Ethics Commission shall prescribe and make available forms and promulgate rules and regulations necessary to implement this article.
(b) The Mississippi Ethics Commission, circuit clerks and municipal clerks shall, within forty-eight (48) hours after the time of the receipt by the appropriate office of reports and statements filed with it, make them available for public inspection, and copying at the expense of the person requesting such copying, and keep such designations, reports and statements for a period of three (3) years from the date of receipt.
SECTION 5. Section 25-4-17, Mississippi Code of 1972, is amended as follows:
25-4-17. The commission shall, in addition to any other duties prescribed by law:
(a) Prepare and publish * * * manuals setting forth recommended uniform methods of accounting and reporting for use by persons required to file statements of economic interest pursuant to the provisions of this chapter or to file under Sections 23-15-801 through 23-15-813;
(b) Prescribe forms for statements of economic interest required to be filed pursuant to this chapter, for all filings required under Sections 23-15-801 through 23-15-813, and furnish such forms to persons required to make any filing with the commission;
(c) Accept and file any statements or information voluntarily supplied by persons required to file with the commission that exceeds the requirements for any filing;
(d) Develop and maintain a filing, coding and cross-indexing system for all filings with the commission including complaints and responses as well as for all other actions undertaken by the commission * * * ;
(e) Make * * * available for public inspection and copying during regular business hours all statements, reports and registrations or other filing required to be filed with the commission and make copying facilities available at a reasonable charge to defray the cost of copying; provided, however, each person examining or being provided a filing, report or registration on file with the commission shall be required to state his name, address, occupation, telephone number and the specific filing being examined;
(f) Preserve all filing for a period of seven (7) years from the date of their receipt;
(g) Establish such rules and regulations which shall insure and maintain the confidentiality and integrity of the commission, its proceedings, investigations and findings, it being the intent of this chapter to promote high standards of competence and conduct by the commission and its staff, and to insure that all matters designated as confidential shall remain confidential; provided, however, that nothing in this chapter shall be construed to prohibit the commission, in its discretion, from releasing information to the public relating to its findings, proceedings, or investigations if the person under investigation makes such request, or from holding open meetings on nonconfidential matters;
(h) Study the body of Mississippi criminal law pertaining to public officials and report its findings and recommendations in summary form to the 1983 Regular Session of the Legislature and each regular session of the Legislature thereafter if appropriate;
(i) Have the authority, in its discretion, to issue advisory opinions with regard to any of * * * standards of conduct set forth in Article 3, Chapter 4, Title 25, or Article 23, Chapter 15, Title 23, Mississippi Code of 1972. When any public official or employee requests in writing such an advisory opinion and has stated all the facts to govern such opinion, and the commission has prepared and delivered such opinion with references thereto, there shall be no civil or criminal liability accruing to or against any such public official who, in good faith, follows the direction of such opinion and acts in accordance therewith unless a court of competent jurisdiction, after a full hearing, shall judicially declare that such opinion is manifestly wrong and without any substantial support. No opinion shall be given or considered if said opinion would be given after judicial proceedings are commenced.
All advisory opinions issued pursuant to the provisions of this paragraph shall be made public and shall be issued within ninety (90) days of written request. The commission shall maintain a record of all such opinions and an index by which such opinions can be identified and located by reference to subject matter. The request for an advisory opinion shall be confidential as to the identity of the individual making the request. The commission * * *, so far as practicable and before making public, an advisory opinion issued under the provisions of this paragraph, shall make such deletions and changes thereto as may be necessary to ensure the anonymity of the public official and any other person named in the opinion; and
(j) Within ninety (90) days, issue advisory opinions, upon written request by any individual required to file a statement of economic interest under the provisions of Section 25-4-25, pertaining to the content of the statement of economic interest which such individual is required to file under the provisions of Section 25-4-27. When such an advisory opinion is issued pursuant to a complete and accurate request, then there shall be no liability, civil or criminal, accruing to or against the individual requesting such opinion who, in good faith, follows the direction of the opinion and makes disclosure in accordance therewith unless a court of competent jurisdiction, after a full hearing, shall judicially declare that such opinion is manifestly wrong and without substantial support. No opinion shall be given or considered if such opinion is given after suit is filed or prosecution begun. All requests for advisory opinions and all advisory opinions issued pursuant to the provisions of this paragraph shall be confidential and the commission shall not publicly disclose any advisory opinion issued or the fact that an advisory opinion has been requested or issued unless the individual requesting the opinion gives his permission, in writing, to the commission.
SECTION 6. Section 25-4-19, Mississippi Code of 1972, is amended as follows:
25-14-19. The Commission shall have the authority to do the following:
(a) Make investigations, as provided in Section 25-4-21, with respect to statements of economic interest filed pursuant to this chapter and with respect to alleged failures to file any statement of economic interest as required pursuant to this chapter;
(b) Request the assistance of the Attorney General, the Performance Evaluation and Expenditure Review Committee, the Department of Audit and any other governmental agency or political subdivision in the conduct of any investigation in which a particular resource of an agency may be needed;
(c) Administer oaths and issue and serve subpoenas upon any witness or for the production of documents before the commission, and such subpoenas may include a protective order requiring confidentiality of the subpoena, the subject matter, and any documents subpoenaed, and such subpoenas shall be enforced by the courts of this state;
(d) Report, as provided in Section 25-4-21(e), to the Attorney General and appropriate district attorney;
(e) Upon a complaint signed under oath by any person, including any member of the commission or its staff, investigate, as provided in Section 25-4-21, any alleged violation of law by public officials or public employees;
(f) Seek, in the name of and for the use and benefit of the State of Mississippi, or a political subdivision thereof, restitution or other equitable or legal remedies in civil law to recover public funds or property unlawfully taken, as well as any unjust enrichment, although not public funds, and to recover on bonds where the state or a political subdivision thereof is the beneficiary;
(g) Employ an attorney or attorneys to:
(i) Serve as a special prosecutor to assist the Attorney General or a district attorney; and
(ii) File actions to seek restitution or other remedies to recover funds as provided in item (f) of this section.
(h) Perform an audit or other verification, on a random or systematic basis, in its discretion, of any statement, report, registration or other filing with the commission;
(i) Make investigations of public servants with respect to any violation of this chapter or of Title 23, Chapter 15, Mississippi Code of 1972, and all other regulatory matters assigned to it and, upon a finding that a violation has occurred, impose one or more of the following sanctions administratively:
(i) Private reprimand;
(ii) Public reprimand;
(iii) In the case of a public servant a fine not to exceed one (1) year's salary;
(iv) Discharge from office or employment of a public servant who is not a member of the Legislature; with respect to any alleged violation under the commission's jurisdiction by a member of the Legislature, if a violation is found to have occurred, the commission shall report the results of its investigation to the appropriate house whose responsibility it is to discipline its members, together with any recommendation of reprimand, discharge or otherwise.
SECTION 7. The Attorney General of the State of Mississippi shall submit this act, immediately upon approval by the Governor, or upon approval by the Legislature subsequent to a veto, to the Attorney general of the United States or to the United States District Court for the District of Columbia in accordance with the provisions of the Voting Rights Act of 1965, as amended and extended.
SECTION 8. This act shall take effect and be in force from and after the date it is effectuated under Section 5 of the Voting Rights of 1965, as amended and extended, or on July 1, 1997, whichever is later.