MISSISSIPPI LEGISLATURE
2011 Regular Session
To: Ethics; Appropriations
By: Senator(s) Baria
AN ACT TO AMEND SECTIONS 5-8-3 AND 5-8-7, MISSISSIPPI CODE OF 1972, TO REVISE THE DEFINITIONS OF "LOBBYING" AND "LOBBYIST" AND RELATED CONCEPTS AND EXCEPTIONS THERETO; TO CREATE SECTION 5-8-25, MISSISSIPPI CODE OF 1972, TO DEFINE CERTAIN TERMS AND TO LIMIT STATE AGENCIES' ABILITY TO EXPEND GENERAL FUNDS TO PAY CONTRACT LOBBYISTS; TO AMEND SECTION 25-9-120, MISSISSIPPI CODE OF 1972, TO CONFORM; TO CREATE A TASK FORCE TO STUDY, DEVELOP AND MAKE RECOMMENDATIONS RELATING TO LEGISLATION NECESSARY TO ASSIST IN THE DEVELOPMENT AND IMPLEMENTATION OF PRACTICES THAT WILL IMPROVE THE DOCUMENT RETENTION POLICIES OF THE STATE OF MISSISSIPPI AND ANY OFFICE, DEPARTMENT, AGENCY, DIVISION, BUREAU, COMMISSION, BOARD, INSTITUTION, HOSPITAL, COLLEGE, UNIVERSITY, AIRPORT AUTHORITY OR OTHER INSTRUMENTALITY THEREOF; TO PROVIDE FOR THE COMPOSITION OF SUCH TASK FORCE; TO PROVIDE THAT THE TASK FORCE SHALL MAKE AND SUBMIT A REPORT TO THE LEGISLATURE AND GOVERNOR NO LATER THAN DECEMBER 1, 2011; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 5-8-3, Mississippi Code of 1972, is amended as follows:
5-8-3. The following words and phrases shall have the meanings ascribed herein unless the context clearly indicates otherwise:
(a) (i) "Anything of value" means:
1. A pecuniary item, including money, or a bank bill or note;
2. A promissory note, bill of exchange, order, draft, warrant, check or bond given for the payment of money;
3. A contract, agreement, promise or other obligation for an advance, conveyance, forgiveness of indebtedness, deposit, distribution, loan, payment, gift, pledge or transfer of money;
4. A stock, bond, note or other investment interest in an entity;
5. A receipt given for the payment of money or other property;
6. A right in action;
7. A gift, tangible good, chattel or an interest in a gift, tangible good or chattel;
8. A loan or forgiveness of indebtedness;
9. A work of art, antique or collectible;
10. An automobile or other means of personal transportation;
11. Real property or an interest in real property, including title to realty, a fee simple or partial interest, present or future, contingent or vested within realty, a leasehold interest, or other beneficial interest in realty;
12. An honorarium or compensation for services;
13. A rebate or discount in the price of anything of value, unless the rebate or discount is made in the ordinary course of business to a member of the public without regard to that person's status as an executive, legislative or public official or public employee, or the sale or trade of something for reasonable compensation that would ordinarily not be available to a member of the public;
14. A promise or offer of employment;
15. Any other thing of value that is pecuniary or compensatory in value to a person, except as otherwise provided in subparagraph (ii) of this paragraph; or
16. A payment that directly benefits an executive, legislative or public official or public employee or a member of that person's immediate family.
(ii) "Anything of value" does not mean:
1. Informational material such as books, reports, pamphlets, calendars or periodicals informing an executive, legislative or public official or public employee of her or his official duties;
2. A certificate, plaque or other commemorative item which has little pecuniary value;
3. Food and beverages for immediate consumption provided by a lobbyist up to a value of Ten Dollars ($10.00) in the aggregate during any calendar year;
4. Campaign contributions reported in accordance with Section 23-15-801 et seq., Mississippi Code of 1972.
(b) "Commission" means the Mississippi Ethics Commission, when used in the context of Section 5-8-19.
(c) "Compensation" means:
(i) An advance, conveyance, forgiveness of indebtedness, deposit, distribution, loan, payment, gift, pledge or transfer of money or anything of value, including reimbursement of travel, food or lodging costs; or
(ii) A contract, agreement, promise or other obligation for an advance, conveyance, forgiveness of indebtedness, deposit, distribution, loan, payment, gift, pledge or transfer of money or anything of value, including reimbursement of travel, food or lodging costs, for services rendered or to be rendered.
(d) "Designated individual" means a legislator, a legislative employee, or a public official.
(e) "Executive action" means the proposal, drafting, development, consideration, amendment, adoption, approval, promulgation, issuance, modification, rejection or postponement by a state or local governmental entity of a rule, regulation, order, decision, determination or other quasi-legislative action or proceeding.
(f) "Executive agency" means:
(i) An agency, board, commission, governing authority or other body in the executive branch of state or local government; or
(ii) An independent body of state or local government that is not a part of the legislative or judicial branch, but which shall include county boards of supervisors.
(g) "Executive official" means:
(i) A member or employee of a state agency, board, commission, governing authority or other body in the executive branch of state or local government; or
(ii) A public official or public employee, or any employee of such person, of state or local government who takes an executive action.
(h) "Expenditure" means:
(i) A purchase, payment, distribution, loan, forgiveness of a loan or payment of a loan by a third party, advance, deposit, transfer of funds, a promise to make a payment, or a gift of money or anything of value for any purpose;
(ii) A payment to a lobbyist for salary, fee, commission, compensation for expenses, or other purpose by a person employing, retaining or contracting for the services of the lobbyist separately or jointly with other persons;
(iii) A payment in support of or assistance to a lobbyist or the lobbyist's activities, including the direct payment of expenses incurred at the request or suggestion of the lobbyist;
(iv) A payment that directly benefits an executive, legislative or public official or a member of the official's immediate family;
(v) A payment, including compensation, payment or reimbursement for the services, time or expenses of an employee for or in connection with direct communication with an executive, legislative or public official made at the direction of the employee's employer;
(vi) A payment for or in connection with soliciting or urging other persons to enter into direct communication with an executive, legislative or public official; or
(vii) A payment or reimbursement for food, beverages, travel, lodging, entertainment or sporting activities.
(i) "Gift" means anything of value to the extent that consideration of equal or greater value is not received, including a rebate or discount in the price of anything of value unless the rebate or discount is made in the ordinary course of business to a member of the public without regard to that person's status as an executive, legislative or public official.
(j) "Legislative action" means:
(i) Preparation, research, drafting, introduction, consideration, modification, amendment, approval, passage, enactment, tabling, postponement, defeat or rejection of a bill, resolution, amendment, motion, report, nomination, appointment or other matter by the Mississippi State Legislature or a member or employee of the Legislature acting or purporting to act in an official capacity;
(ii) Action by the Governor in approving or vetoing a bill or other action of the Legislature;
(iii) Action by the Legislature in:
1. Overriding or sustaining a veto by the Governor; or
2. Considering, confirming or rejecting an executive appointment of the Governor.
(k) "Legislative official" means:
(i) A member, member-elect or presiding officer of the Legislature;
(ii) A member of a commission or other entity established by and responsible to either or both houses of the Legislature;
(iii) A staff member, officer or employee to a member or member-elect of the Legislature, to a member of a commission or other entity established by and responsible to either or both houses of the Legislature, or to the Legislature or any house, committee or office thereof.
(l) "Lobbying" means:
(i) Influencing or attempting to influence legislative or executive action, or both, through direct communication or activities with a designated individual or the designated individual's immediate family; or
(ii) Solicitation of others to influence or attempt to influence legislative or executive action, or both.
* * *
The term "lobbying" does not include contacts that are part of a business, civic, religious, fraternal, personal or commercial relationship that is not connected to legislative or executive action, or both.
(m) "Lobbyist" means:
(i) An individual who is employed and receives payments, or who contracts for economic consideration, including reimbursement for reasonable travel and living expenses, for the purpose of lobbying;
(ii) An individual who represents a legislative or public official or public employee, or who represents a person, organization, association or other group, for the purpose of lobbying; or
(iii) A sole proprietor, owner, part owner or shareholder in a business who has a pecuniary interest in legislative or executive action, who engages in lobbying activities.
(n) "Lobbyist's client" means the person in whose behalf the lobbyist influences or attempts to influence legislative or executive action.
(o) "Local" means all entities of government at the county, county-district, multicounty district, municipal or school district level.
(p) "Person" means an individual, proprietorship, firm, partnership, joint venture, joint-stock company, syndicate, business trust, estate, company, corporation, association, club, committee, organization or group of persons acting in concert.
(q) "Public employee" means an individual appointed to a position, including a position created by statute, whether compensated or not, in state or local government and includes any employee of the public employee. The term includes a member of the board of trustees, chancellor, vice-chancellor or the equivalent thereof in the state university system or the state community and junior college system, and a president of a state college or university.
(r) "Public official" means an individual elected to a state or local office, or an individual who is appointed to fill a vacancy in the office.
(s) "Value" means the retail cost or fair market worth of an item or items, whichever is greater.
SECTION 2. Section 5-8-7, Mississippi Code of 1972, is amended as follows:
5-8-7. Notwithstanding any other provisions of this chapter, the following persons shall not be included within the definition of "lobbyist" or "lobbyist's client" under this chapter, and accordingly the registration and reporting provisions, including the payment of related fees, of this chapter do not apply to:
(a) A legislative or public official acting in an official capacity.
(b) An individual who:
(i) Represents or purports to represent only the individual;
(ii) Receives no compensation or anything of value for lobbying; and
(iii) Has no pecuniary interest in the legislative or executive action.
(c) An individual lobbying in his or her own interest, his or her own business interest, who pays, or promises to pay, offers to pay or causes to be paid to public officials, legislative officials or public employees any thing or things of value aggregating in value to less than Two Hundred Dollars ($200.00) in any calendar year.
(d) An individual lobbying on behalf of his or her employer's business interest where such lobbying is not a primary or regular function of his employment position if such individual pays, promises to pay, offers to pay, or causes to be paid individually or on the employer's behalf to public officials, legislative officials, or public employees any thing or things of value aggregating in value to less than Two Hundred Dollars ($200.00) in any calendar year.
(e) An individual lobbying on behalf of an association of which he or she is a member, where such lobbying is not a primary or regular function of his or her position in the association, if such individual pays, promises to pay, offers to pay, or causes to be paid individually or on the association's behalf to public officials, legislative officials or public employees any thing or things of value aggregating in value to less than Two Hundred Dollars ($200.00) in any calendar year.
(f) An individual who is a shareholder, owner or part owner of a business who lobbies on behalf of such business, where the individual is not an employee of the business, if the individual pays, promises to pay, offers to pay, or causes to be paid individually or on behalf of the business to public officials, legislative officials or public employees any thing or things of value aggregating in value to less than Two Hundred Dollars ($200.00) in any calendar year.
(g) An individual who:
(i) Limits lobbying solely to formal testimony before a public meeting of a legislative body or an executive agency, or a committee, division or department thereof; and
(ii) Registers the appearance in the records of the public body, if such records are kept.
(h) An individual who is a licensed attorney representing a client by:
(i) Drafting bills, preparing arguments thereon, and advising the client or rendering opinions as to the construction and effect of proposed or pending legislation, where such services are usual and customary professional legal services which are not otherwise connected with legislative action; or
(ii) Providing information, on behalf of the client, to an executive or public official, a public employee, or an agency, board, commission, governing authority or other body of state or local government where such services are usual and customary professional legal services including or related to a particular nonlegislative matter, case or controversy.
(i) News media and employees of the news media whose activity is limited solely to the publication or broadcast of news, editorial comments, or paid advertisements that attempt to influence legislative or executive action. For the purposes of this section, "news media" shall be construed to be bona fide radio and television stations, newspapers, journals or magazines, or bona fide news bureaus or associations which in turn furnish information solely to bona fide radio or television stations, newspapers, journals or magazines.
(j) An individual who engages in lobbying activities exclusively on behalf of a religious organization which qualifies as a tax-exempt organization under the Internal Revenue Code.
(k) An individual who is a nonattorney professional and who receives professional fees and expenses to represent clients on executive agency matters, except that if anything of value shall be paid or promised to be paid directly or indirectly on behalf of a client for the personal use or benefit of an executive or public official or public employee, then expenditures and actions of the individual are reportable under this chapter, and the individual must register as a lobbyist.
(l) A person expressing a personal opinion and not acting as a lobbyist.
(m) A person who is responding to inquiries from a designated individual and does not conduct further lobbying activities.
SECTION 3. The following shall be codified as Section 5-8-25, Mississippi Code of 1972.
5-8-25. (1) For purposes of this section, "state agency" shall have the meaning ascribed in Section 25-9-107.
(2) No state agency shall expend general funds to pay any person, firm or association or other collective of individuals to perform lobbying under contract for the agency, but special funds of a state agency may be so expended if the following conditions are met:
(a) Requests for proposals shall be issued to at least three (3) separate lobbyists, and the agency shall submit copies of all proposals to the Personal Service Contract Review Board;
(b) The agency shall conduct an internal procedure to evaluate need, which evaluation shall include an analysis of whether an agency officer or employee could provide the services, if ultimately determined necessary; and
(c) Any contract for services of a contract lobbyist shall be reviewed by the Personal Service Contract Review Board pursuant to Section 25-9-120.
(3) The prohibitions of this section shall not apply to a person who is employed by an agency and who, as a part of the person's employment, is authorized or directed by the person's supervisors or governing board to engage in lobbying.
SECTION 4. Section 25-9-120, Mississippi Code of 1972, is amended as follows:
25-9-120. (1) Contract personnel, whether classified as contract workers or independent contractors shall not be deemed state service or nonstate service employees of the State of Mississippi, and shall not be eligible to participate in the Public Employees' Retirement System, or the state employee health plan, nor be allowed credit for personal and sick leave and other leave benefits as employees of the State of Mississippi, notwithstanding Sections 25-3-91 through 25-3-101; 25-9-101 through 25-9-151; 25-11-1 through 25-11-126; 25-11-128 through 25-11-131; 25-15-1 through 25-15-23 and for the purpose set forth herein. Contract workers, i.e., contract personnel who do not meet the criteria of independent contractors, shall be subject to the provisions of Section 25-11-127.
(2) There is hereby created the Personal Service Contract Review Board, which shall be composed of the State Personnel Director, the Executive Director of the Department of Finance and Administration, or his designee, the Commissioner of Corrections, or his designee, the Executive Director of the Mississippi Department of Wildlife and Fisheries, or his designee, and the Executive Director of the Department of Environmental Quality, or his designee. The State Personnel Director shall be chairman and shall preside over the meetings of the board. The board shall annually elect a vice chairman, who shall serve in the absence of the chairman. No business shall be transacted, including adoption of rules of procedure, without the presence of a quorum of the board. Three (3) members shall be a quorum. No action shall be valid unless approved by the chairman and two (2) other of those members present and voting, entered upon the minutes of the board and signed by the chairman. Necessary clerical and administrative support for the board shall be provided by the State Personnel Board. Minutes shall be kept of the proceedings of each meeting, copies of which shall be filed on a monthly basis with the Legislative Budget Office.
(3) The Personal Service Contract Review Board shall have the following powers and responsibilities:
(a) Promulgate rules and regulations governing the solicitation and selection of contractual services personnel including personal and professional services contracts for any form of consulting, policy analysis, public relations, marketing, public affairs, legislative advocacy services or any other contract that the board deems appropriate for oversight, with the exception of any personal service contracts entered into for computer or information technology-related services governed by the Mississippi Department of Information Technology Services, any personal service contracts other than legislative advocacy contracts entered into by the Mississippi Department of Transportation, and any contract for attorney, accountant, auditor, physician, dentist, architect, engineer, veterinarian and utility rate expert services. Any such rules and regulations shall provide for maintaining continuous internal audit covering the activities of such agency affecting its revenue and expenditures as required under Section 7-7-3(6)(d), Mississippi Code of 1972;
(b) (i) Approve all personal and professional services contracts involving the expenditures of funds in excess of One Hundred Thousand Dollars ($100,000.00); and
(ii) Approve all state agency legislative advocacy contracts with contract lobbyists as provided in Section 5-8-25;
(c) Develop standards with respect to contractual services personnel which require invitations for public bid, requests for proposals, record keeping and financial responsibility of contractors. The Personal Service Contract Review Board may, in its discretion, require the agency involved to advertise such contract for public bid, and may reserve the right to reject any or all bids;
(d) Prescribe certain circumstances whereby agency heads may enter into contracts for personal and professional services without receiving prior approval from the Personal Service Contract Review Board. The Personal Service Contract Review Board may establish a preapproved list of providers of various personal and professional services for set prices with which state agencies may contract without bidding or prior approval from the board;
(e) To provide standards for the issuance of requests for proposals, the evaluation of proposals received, consideration of costs and quality of services proposed, contract negotiations, the administrative monitoring of contract performance by the agency and successful steps in terminating a contract;
(f) To present recommendations for governmental privatization and to evaluate privatization proposals submitted by any state agency;
(g) To authorize personal and professional service contracts to be effective for more than one (1) year provided a funding condition is included in any such multiple year contract, except the State Board of Education, which shall have the authority to enter into contractual agreements for student assessment for a period up to ten (10) years. The State Board of Education shall procure these services in accordance with the Personal Service Contract Review Board procurement regulations;
(h) To request the State Auditor to conduct a performance audit on any personal or professional service contract;
(i) Prepare an annual report to the Legislature concerning the issuance of personal service contracts during the previous year, collecting any necessary information from state agencies in making such report.
(4) No member of the Personal Service Contract Review Board shall use his official authority or influence to coerce, by threat of discharge from employment, or otherwise, the purchase of commodities or the contracting for personal or professional services under this section.
SECTION 5. (1) There is created a task force to study, develop and make recommendations relating to the development and implementation of practices and strategies that will improve the document retention policies of the State of Mississippi, and any office, department, agency, division, bureau, commission, board, institution, hospital, college, university, airport authority or other instrumentality thereof.
(2) The task force shall consist of the following members, who shall be appointed by the party given power of appointment not later than thirty (30) days after passage of this act:
(a) The Chairman of the Senate Ethics Committee;
(b) The Chairman of the House of Representatives Ethics Committee;
(c) A member of the Senate designated by the Lieutenant Governor;
(d) A member of the House of Representatives designated by the Speaker of the House of Representatives;
(e) The State Auditor, or his designee;
(f) The Executive Director of the Joint Legislative Performance Evaluation and Expenditure Review Committee, or his designee;
(g) The Executive Director of the Department of Finance and Administration, or his designee;
(h) The Executive Director of the Ethics Commission, or his designee;
(i) The State Health Officer, or his designee;
(j) The Executive Director of the Department of Information Technology Services, or his designee;
(k) The Executive Director of the Department of Archives and History;
(l) One (1) citizen chosen from the state at large designated by the Governor;
(m) One (1) citizen chosen from the state at large designated by the Lieutenant Governor;
(n) One (1) citizen chosen from the state at large designated by the Speaker of the House of Representatives.
(3) The task force shall meet no later than July 1, 2011, upon the call of the Executive Director of the Department of Archives and History, who shall serve as chairman. The task force shall have subsequent meetings upon the call of the chairman. A majority of the members of the task force shall constitute a quorum. Necessary clerical and administrative support for the task force shall be provided by the Department of Archives and History.
(4) The task force shall study and make recommendations regarding the development and implementation of practices and strategies that will improve the document retention policies of the State of Mississippi, and any office, department, agency, division, bureau, commission, board, institution, hospital, college, university, airport authority or other instrumentality thereof, taking into consideration the provisions of Title 25, Chapters 59, 60 and 61, Mississippi Code of 1972. The task force may conduct hearings and seek testimony from other states that have implemented document retention policies.
(5) Members of the task force who are not legislators, state officials or state employees shall be compensated at the per diem rate authorized by Section 25-3-69 and shall be reimbursed in accordance with Section 25-3-41 for mileage and actual expenses incurred in the performance of their duties. Legislative members of the task force shall be paid from the contingent expense funds of their respective houses in the same manner as provided for committee meetings when the Legislature is not in session; however, no per diem or expense for attending meetings of the task force may be paid while the Legislature is in session. Except for the initial meeting of the task force, a task force member may not incur per diem, travel or other expenses unless previously authorized by vote, at a meeting of the task force, which action must be recorded in the official minutes of the meeting. Nonlegislative members will be paid from any funds made available to the committee for that purpose.
(6) The task force shall make a report of its findings and recommendations and submit the report to the Legislature and the Governor no later than December 1, 2011, and upon making and submitting such report, the task force shall stand dissolved.
SECTION 6. This act shall take effect and be in force from and after July 1, 2011, and shall stand repealed on June 30, 2011.