1998 Regular Session
To: Judiciary A
By: Representative Ford
House Bill 762
AN ACT TO REENACT SECTIONS 25-4-1 THROUGH 25-4-31, MISSISSIPPI CODE OF 1972, WHICH CREATE THE MISSISSIPPI ETHICS COMMISSION AND PRESCRIBE ITS POWERS AND DUTIES; TO AMEND REENACTED SECTION 25-4-17, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE COMMISSION, IN ITS DISCRETION, MAY RELEASE INFORMATION TO THE PUBLIC RELATING TO ITS FINDINGS, PROCEEDINGS OR INVESTIGATIONS WHETHER OR NOT THE PERSON UNDER INVESTIGATION MAKES SUCH REQUEST; TO AMEND REENACTED SECTION 25-4-19, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE COMMISSION TO CONDUCT PRELIMINARY INQUIRIES REGARDING POSSIBLE LAW VIOLATIONS BY PUBLIC OFFICIALS OR PUBLIC EMPLOYEES TO DETERMINE IF THE COMMISSION OR ITS STAFF SHOULD FILE A COMPLAINT; TO AMEND REENACTED SECTION 25-4-23, MISSISSIPPI CODE OF 1972, IN CONFORMITY TO THE PROVISIONS OF THIS ACT; TO AMEND SECTION 20 OF CHAPTER 360, LAWS OF 1995, TO DELETE THE DATE OF REPEAL OF SECTIONS 25-4-1 THROUGH 25-4-31, MISSISSIPPI CODE OF 1972; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 25-4-1, Mississippi Code of 1972, is reenacted as follows:
25-4-1. The Legislature hereby declares it essential to the proper operation of democratic government that public officials and employees be independent and impartial; that governmental decisions and policy be made in the proper channels of the governmental structure; that public office not be used for private gain other than the remuneration provided by law; that there be public confidence in the integrity of government; and that public officials be assisted in determinations of conflicts of interest.
SECTION 2. Section 25-4-3, Mississippi Code of 1972, is reenacted as follows:
25-4-3. As used in this chapter, unless the context requires otherwise:
(a) "Advisory boards or commissions" shall mean committees created solely to provide technical or professional knowledge or expertise to a parent organization, and whose members exercise no direct authority to expend public funds other than reimbursement for personal expenses incurred as a result of a member's service on the advisory board;
(b) "Business" shall mean any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, holding company, self-employed individual, joint stock company, receivership, trust or other legal entity or undertaking organized for economic gain;
(c) "Candidate for public office" shall mean an individual who has filed the necessary documents or papers to appear as a candidate for nomination for election or election to any elective office existing under the laws of the State of Mississippi, including primary, special or general elections. The term "candidate" does not include any person within the meaning of Section 301(b) of the Federal Election Campaign Act of 1971;
(d) "Commission" shall mean the Mississippi Ethics Commission;
(e) "Compensation" shall mean money or thing of value received, or to be received, from any person for services rendered or to be rendered;
(f) "Income" shall mean money or thing of value received, or to be received, from any source, including, but not limited to, any salary, wage, advance, payment, dividend, interest, rent, forgiveness of debt, fee, royalty or any combination thereof;
(g) "Person" shall mean any individual, firm, business, corporation, association, partnership, union or other legal entity;
(h) "Public employee" shall mean any individual who receives a salary, per diem or expenses paid in whole or in part out of funds authorized to be expended by the Mississippi State Legislature or by the governing body of any political subdivision thereof, or any other body politic within the State of Mississippi;
(i) "Public funds" shall mean all moneys, whether federal, state, district or local;
(j) "Public official" shall mean:
(i) Any elected official of the State of Mississippi or any political subdivision thereof or any other body politic within the State of Mississippi; or
(ii) Any member, officer, director, commissioner, supervisor, chief, head, agent or employee of the State of Mississippi, or any agency thereof, of any political subdivision of the State of Mississippi, of any body politic within the State of Mississippi, or of any public entity created by or under the laws of the State of Mississippi or by executive order of the Governor of the state, any of which is funded by public funds or which expends, authorizes or recommends the use of public funds.
SECTION 3. Section 25-4-5, Mississippi Code of 1972, is reenacted as follows:
25-4-5. (1) There is hereby created the Mississippi Ethics Commission which shall be composed of eight (8) members, each of whom shall be a qualified elector of the State of Mississippi, of good moral character and integrity.
(2) Two (2) members of the commission shall be appointed by each of the following officers in strict accordance with the above standards: the Governor, the Lieutenant Governor, the Speaker of the House of Representatives and the Chief Justice of the Mississippi Supreme Court. Not more than one (1) person appointed by each appointing authority shall be an elected official.
(3) The members of the initial commission shall be appointed for terms of office expiring one (1), two (2), three (3) and four (4) years, respectively, from the effective date of this chapter, the members appointed by the Governor having a one-year term and a four-year term, the members appointed by the Lieutenant Governor having a two-year term and a three-year term, the members appointed by the Speaker having a three-year term and a two-year term, and the members appointed by the Chief Justice having a four-year term and a one-year term.
(4) Successors to the members of the initial commission shall each be appointed for terms of four (4) years and until their successors are appointed and have been duly qualified.
(5) If any of the above-listed appointing authorities should fail to make his appointment to the initial commission within forty-five (45) days after the effective date of this chapter, fail to fill a vacancy within forty-five (45) days after such vacancy occurs, or fail to make his appointment for a full term to the commission, then the Chief Justice of the Mississippi Supreme Court shall make such appointment; provided, however, that the term of such appointee shall be for the period prescribed for the appointment by the authority who was to have made the appointment but who failed to do so. If at any time there should be a vacancy on the commission, a successor member to serve for the unexpired term applicable to such vacancy shall be appointed by the same appointing authority as the member whose unexpired term such successor is to fill.
SECTION 4. Section 25-4-7, Mississippi Code of 1972, is reenacted as follows:
25-4-7. As soon as all of the initial members of the commission have been appointed, the Chief Justice of the Mississippi Supreme Court shall call and provide for the holding of an organizational meeting of the commission; provided, however, in no instance shall such meeting be set for less than forty-five (45) days nor more than sixty (60) days after the effective date of this chapter.
SECTION 5. Section 25-4-9, Mississippi Code of 1972, is reenacted as follows:
25-4-9. The commission shall annually elect one (1) member to serve as chairman of the commission and one (1) member to serve as vice chairman. The vice chairman shall act as chairman in the absence or upon the disability of the chairman or in the event of a vacancy of the office of the chairman.
SECTION 6. Section 25-4-11, Mississippi Code of 1972, is reenacted as follows:
25-4-11. (1) Five (5) members of the commission shall constitute a quorum. Five (5) members of the commission shall vote in the affirmative before any official action can be taken by the commission. Execution of such official action may be delegated to the chairman or executive director of the commission.
(2) A vacancy in the commission shall not impair the right of the remaining members to exercise all the powers of the commission subject to the requirements of subsection (1) of this section.
SECTION 7. Section 25-4-13, Mississippi Code of 1972, is reenacted as follows:
25-4-13. Members of the Mississippi Ethics Commission shall, while serving on business of the commission, be entitled to receive as compensation a per diem, as is provided by law, not to exceed Three Thousand One Hundred Twenty-five Dollars ($3,125.00) annually, in addition to any actual and necessary expenses incurred in the performance of the official duties of the commission.
SECTION 8. Section 25-4-15, Mississippi Code of 1972, is reenacted as follows:
25-4-15. (1) The commission shall appoint an executive director to serve at the pleasure of the commission. The executive director shall possess a high degree of professional competence and integrity. The executive director shall be responsible for the administrative operations of the commission and shall perform other such duties within its powers as may be delegated or assigned from time to time by regulations or orders of the commission. The commission, by and through its executive director, may employ the personnel necessary to properly discharge the duties and responsibilities of the commission, subject to budgetary limitations. Such personnel shall possess a high degree of professional competence and integrity in the area in which employed.
The executive director and other employees of the commission shall not be reimbursed for meals, lodging and travel expenses incurred while attending civic club meetings or any other functions not directly related to commission business.
(2) All employees of the commission shall be excluded from the provisions of Section 25-9-101 et seq., relating to the State Personnel System.
SECTION 9. Section 25-4-17, Mississippi Code of 1972, is reenacted and amended as follows:
25-4-17. The commission shall, in addition to any other duties prescribed by law:
(a) Prepare and publish a manual 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;
(b) Prescribe forms for statements of economic interest required to be filed pursuant to this chapter and furnish such forms to persons required to file such statements of economic interest pursuant to this chapter;
(c) Accept and file any statements or information voluntarily supplied by persons required to file statements of economic interest under this chapter that exceeds the requirements of this chapter;
(d) Develop and maintain a filing, coding and cross-indexing system of statements of economic interest, complaints, responses and other actions undertaken by the commission pursuant to this chapter;
(e) Make statements of economic interest which are required to be filed by this chapter available for public inspection and copying during regular business hours and make copying facilities available at a reasonable charge to defray the cost of copying; provided, however, each person examining or being provided a financial disclosure statement on file with the commission shall be required to state his name, address, occupation, telephone number and the specific financial disclosure statement being examined;
(f) Preserve such statements of economic interest 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, * * * 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 such standards of conduct set forth in Article 3, Chapter 4, Title 25, Mississippi Code of 1972. When any public official 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 request for an advisory opinion shall be confidential as to the identity of the individual making the request. The commission shall, so far as practicable and before making public, an advisory opinion issued under the provisions of this paragraph, 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 10. Section 25-4-18, Mississippi Code of 1972, is reenacted as follows:
25-4-18. (1) The appropriate committee designated by the Senate or the House of Representatives of the State of Mississippi to deal with ethical matters of their respective body may request, in writing, an opinion from the Attorney General as to real or hypothetical situations concerning a member of their respective body, but only upon request of such member. The Attorney General shall issue his opinion, in writing, in response to such request.
(2) When a request pursuant to subsection (1) of this section shall have stated all the facts to govern such opinion and an opinion shall have been prepared and delivered with reference thereto, there shall be no liability, civil or criminal, accruing to or against the member requesting the opinion who, in good faith, follows the direction of the 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 substantial support. No opinion shall be given or considered if such opinion is requested after suit is filed or prosecution begun.
(3) All requests for opinions and all opinions issued pursuant to the provisions of this section shall be confidential and neither the Attorney General nor the committee shall publicly disclose any opinion issued or the fact that an opinion has been requested or issued unless the member requesting the opinion gives his permission, in writing, to the appropriate committee of his respective house.
(4) The provisions of this section shall be supplemental and in addition to any other statute.
SECTION 11. Section 25-4-19, Mississippi Code of 1972, is reenacted and amended as follows:
25-4-19. 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) Conduct preliminary inquiries regarding possible law violations by public officials or public employees to determine if a member of the commission or its staff should file a complaint as provided in item (f) of this section;
(f) 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;
(g) 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;
(h) 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 (g) of this section.
SECTION 12. Section 25-4-21, Mississippi Code of 1972, is reenacted as follows:
25-4-21. Upon receipt of a sworn complaint, or upon complaint initiated by the commission itself, the commission shall send a copy to the person complained of and proceed as follows:
(a) If the complaint concerns a public official in the legislative branch, the commission shall refer the complaint, confidentially, to the appropriate committee of the House of Representatives or the Senate having jurisdiction over the ethical conduct of its members and employees.
(b) If the complaint concerns a public official in the judicial branch, the commission shall refer the complaint, confidentially, to the Commission on Judicial Performance or the Chief Justice of the Supreme Court.
(c) If the complaint concerns a public official in the executive branch or persons not covered in subsection (a) or (b) of this section, then the commission shall refer the complaint, confidentially, to the head of the department or agency, if the person is in the executive branch, or to the person about whom said complaint is filed, for other persons involved in this subsection.
(d) The persons, committees or commission receiving such complaints referred in subsection (a), (b) or (c) shall have thirty (30) days within which to respond to the complaint.
(e) After receiving the response to the complaint or, if no response is received after thirty (30) days from the notice of referral, the commission may, in its discretion, terminate the matter or proceed with an investigation as follows:
(i) All commission proceedings and records relating to any investigation shall be confidential, except as otherwise provided in this paragraph (e).
(ii) The commission may terminate any and all proceedings at any stage of its procedure upon a determination that an appropriate disposition of the matter has occurred.
(iii) If the investigation indicates probable cause for belief that a violation of law has occurred, the commission shall refer the complaint with any evidence gathered during the investigation to the Attorney General and to the district attorney having jurisdiction, with a recommendation that it be considered for presentation to the grand jury, as well as any further recommendations for seeking civil remedies. The Attorney General and the district attorney shall report back to the commission within ninety (90) days as to what action was taken following receipt of the complaint and recommendations of the commission, including the intent of the Attorney General to seek civil remedies and the intent of the district attorney to present such matter to the grand jury.
SECTION 13. Section 25-4-23, Mississippi Code of 1972, is reenacted and amended as follows:
25-4-23. All commission proceedings and records relating to any investigation shall be kept confidential, except this requirement shall not be construed to interfere with the commission's authority, pursuant to item (g) of Section 25-4-17, items (d) and (f) of Section 25-4-19, and pursuant to Section 25-4-21, or when necessary for prosecutions of violations under Section 25-4-31.
SECTION 14. Section 25-4-25, Mississippi Code of 1972, is reenacted as follows:
25-4-25. Each of the following individuals shall file a statement of economic interest with the commission in accordance with the provisions of this chapter:
(a) Persons elected by popular vote, excluding United States Senators and United States Representatives, to any office, whether it be legislative, executive or judicial, and whether it be statewide, district, county, municipal or any other political subdivision, with the exception of members of boards of levee commissioners and election commissioners;
(b) Members of local school boards that administer public funds, regardless of whether such members are elected or appointed;
(c) Persons who are candidates for public office or who are appointed to fill a vacancy in an office who, if elected, would be required to file under item (a) of this section;
(d) Executive directors or heads of state agencies, by whatever name they are designated, who are paid in part or in whole, directly or indirectly, from funds appropriated or authorized to be expended by the Legislature, and the presidents and trustees of all state-supported colleges, universities and junior colleges;
(e) Members of any state board, commission or agency, including the Mississippi Ethics Commission, charged with the administration or expenditure of public funds, with the exception of advisory boards or commissions; provided, however, in order to fulfill the legislative purposes of this chapter, the commission may require, upon a majority vote, the filing of a statement of economic interest by members of an advisory board or commission.
SECTION 15. Section 25-4-27, Mississippi Code of 1972, is reenacted as follows:
25-4-27. Each person specified under Section 25-4-25 shall file a statement in accordance with the provisions of this chapter which shall be signed under oath as to the accuracy and completeness of the information set forth to the best knowledge of the person submitting such statement. The statement shall include the following information:
(a) The name and residential and business addresses of such person;
(b) The title, position and offices whereby such person is required to file;
(c) All other occupations of such person and his spouse during the preceding calendar year and up to the date of filing;
(d) The positions held by such person or his spouse during the preceding calendar year and up to the date of filing in any business, partnership or corporation organized for profit, listed by name and address;
(e) The names and addresses of all businesses or corporations in which such person or his spouse has or had an interest during the preceding calendar year and up to the date of filing which is equal to ten percent (10%) or more of all interests in any such business;
(f) The types of the gross income sources of such person or his spouse for preceding calendar year in excess of Two Thousand Five Hundred Dollars ($2,500.00); each entry under this subsection (f) shall contain the name of the general type of such business or enterprise and the nature of the income as to whether it was salary, fees, dividends, interest, profit, commissions, royalty, rent or other;
(g) All retainers listed by type, but not amount, received by each person or his spouse during the preceding calendar year and up to the date of filing; for the purposes of this chapter, "retainer" shall mean a consideration or fee paid on a regular and continuing basis to a person for services, whether or not specific services are performed by such person;
(h) Any representation or intervention by a person specified under Section 25-4-25(a) and (d) for any person for compensation in the preceding calendar year and up to the date of filing before the Joint Legislative Budget Committee, State Fiscal Management Board, the Public Service Commission, Oil and Gas Board, Commissioner of Banking and Consumer Finance, State Board of Banking Review, the State Personnel Board, the Central Data Processing Authority or the State Tax Commission; provided, however, that this provision shall not apply where such representation involves only uncontested or routine matters. Such statement shall identify the person represented and the nature of the business involved; and
(i) The filing party shall list all public bodies from which he or his spouse received compensation in excess of One Thousand Dollars ($1,000.00) during the preceding calendar year.
SECTION 16. Section 25-4-29, Mississippi Code of 1972, is reenacted as follows:
25-4-29. Required statements hereunder shall be filed as follows:
(a) Every incumbent public official required by items (a), (b), (d) and (e) of Section 25-4-25 to file a statement of economic interest shall file such statement with the commission on or before May 1 of each year that such official holds office, regardless of duration;
(b) Candidates for office required to file a statement hereunder shall file such statement within fifteen (15) days after the time that such person becomes a candidate for public office;
(c) Persons who are required to file a statement because of appointment to fill a vacancy in an office or required to file under Section 25-4-25(d) and (e) shall file such statement within thirty (30) days of their appointment;
(d) No person by reason of successful candidacy or assuming additional offices shall be required to file more than one (1) statement of economic interest in any calendar year, except such official shall notify the commission as soon as practicable of additional offices not previously reported; and
(e) The commission may, on an individual case basis, provide for additional time to file a statement upon a showing that compliance with a filing date set out under item (a), (b), (c) or (d) above would work an unreasonable hardship.
SECTION 17. Section 25-4-31, Mississippi Code of 1972, is reenacted as follows:
25-4-31. (1) Any person who violates the confidentiality of a commission proceeding pursuant to this chapter is guilty of a misdemeanor and, upon conviction, shall be fined not more than One Thousand Dollars ($1,000.00) or imprisoned not more than one (1) year, or be both fined and imprisoned.
(2) Any person who willfully and knowingly files a false complaint with the commission or who willfully affirms, reports or swears falsely in regard to any material matter before a commission proceeding is guilty of a felony, and, upon conviction, shall be punished by a fine of not less than One Thousand Dollars ($1,000.00) nor more than Five Thousand Dollars ($5,000.00), or committed to the custody of the Department of Corrections for not more than five (5) years, or by both such fine and imprisonment.
(3) Any person who shall knowingly and willfully fail to file a disclosure statement as required by this chapter, or who shall, although filing such statement, knowingly and willfully fail to disclose information required by this chapter, is guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not more than Five Thousand Dollars ($5,000.00).
SECTION 18. Section 20, Chapter 360, Laws of 1995, is amended as follows:
Section 20. This act shall take effect and be in force from and after the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended * * * .
SECTION 19. Each section of the Mississippi Code of 1972 that is reenacted but not amended by this act, and that appears in the main volume of the Code, shall not be reprinted in the supplement. Instead, an editor's note shall be placed in the supplement following the section to explain that the section was reenacted, and that it has not been reprinted in the supplement because the language of the section in the main volume was unaffected by the legislation.
SECTION 20. 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 21. This act shall take effect and be in force from and after the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended.