MISSISSIPPI LEGISLATURE
2016 Regular Session
To: Accountability, Efficiency, Transparency; Judiciary, Division A
By: Senator(s) Tindell
AN ACT TO CREATE THE MISSISSIPPI PRIVATE INVESTIGATION REGULATORY ACT; TO PROVIDE DEFINITIONS FOR SUCH ACT; TO PROVIDE ALL PERSONS ACTING AS PRIVATE INVESTIGATORS BE LICENSED; TO CREATE THE PRIVATE INVESTIGATION BOARD; TO PROVIDE FOR MEMBERSHIP AND TERMS OF THE MEMBERS OF SUCH BOARD; TO PROVIDE THAT THE BOARD IS A QUASI-JUDICIAL BODY; TO CREATE THE MISSISSIPPI PRIVATE INVESTIGATION BOARD FUND; TO PROHIBIT UNLICENSED PERSONS FROM ACTING AS PRIVATE INVESTIGATORS; TO PROVIDE THE CRITERIA FOR OBTAINING A PRIVATE INVESTIGATOR'S LICENSE; TO GRANDFATHER-IN CERTAIN PERSONS OPERATING AS PRIVATE INVESTIGATORS AS OF THE EFFECTIVE DATE OF THIS ACT; TO PROVIDE A PROCEDURE FOR ACCEPTING APPLICATIONS UNDER THIS ACT; TO REQUIRE THE BOARD TO CREATE PRIVATE INVESTIGATOR LICENSES; TO REQUIRE A PRIVATE INVESTIGATOR TO HAVE SUCH LICENSE WHILE WORKING AS AN INVESTIGATOR; TO PROVIDE FEES FOR SUCH LICENSE; TO PROVIDE FINES FOR VIOLATIONS OF THIS ACT; TO EXCLUDE CERTAIN PERSONS FROM THE PROVISIONS OF THIS ACT; TO CREATE THE DIVISION OF INVESTIGATION AS THE BOARD'S OFFICIAL INVESTIGATIVE AGENCY; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act shall be known and may be cited as the "Mississippi Private Investigation Regulatory Act."
SECTION 2. The following terms shall have the following meanings, unless the content clearly states otherwise:
(a) "Felony" means a criminal offense that is defined and punishable as a felony under the laws of this state or an offense committed outside the State of Mississippi, which if committed in this state, would constitute a felony under Mississippi law; a crime in any other state or a crime against the United States which is designated as a felony; or an offense in any other state, territory or country punishable by imprisonment for a term exceeding one (1) year.
(b) "Private investigation" means the compensated act of any individual or company engaging in the business of obtaining or furnishing information with reference to any of the following:
(i) A crime committed or threated against the United States or any state or territory of the United States.
(ii) The identity, habits, conduct, business, occupation, honesty, integrity, credibility, including, but not limited to, the credibility of a person giving testimony in a criminal or civil proceeding, knowledge, trustworthiness, efficiency, loyalty, activity, movement, whereabouts, affiliations, associations, transactions, acts, reputations or character of a person.
(iii) The location, disposition or recovery of lost or stolen property.
(iv) The cause or responsibility for fires, losses, accidents, damages or injuries to persons or to property.
(c) "Private Investigator" means either:
(i) A person who, for compensation, performs one (1) or more of the private investigation services defined and regulated by this act.
(ii) A person who, for consideration, advertises as providing or performing private investigation. The term does not include an informant who, on a one-time or limited basis, as a result of a unique expertise, ability or vocation and who provides information or services while under the direction and control of a licensee of the board, that would otherwise be included in the definition of private investigation; or
(iii) A person who is engaged in private investigation as defined herein and who is licensed in accordance with this act.
SECTION 3. No person shall practice private investigation or hold himself or herself out to the public as a private investigator or use any term, title or abbreviation that expresses, infers or implies that the person is licensed as a private investigator unless the person, at the time of the action described in this section, holds a valid license to practice private investigation as provided in this act. All applicants shall pass a criminal background check.
SECTION 4. (1) There is created the Mississippi Private Investigation Board. The membership of the board shall reflect the racial, gender, geographic, urban, rural and economic diversity of the state.
(2) Members of the board shall have had five (5) years of experience as an investigator prior to his or her appointment. From and after August 1, 2020, all members who are private investigators shall be licensed pursuant to this act as a private investigator for a period of at least five (5) years before his or her appointment.
(3) The following members shall be appointed to the board:
(a) Three (3) persons appointed by the Governor, two (2) of whom shall be private investigators in this state and one (1) of whom shall be a consumer who utilizes private investigative services will represent the public at large. The Governor shall appoint the three (3) members to initial terms of three (3) years. Thereafter, successor members shall be appointed for terms of four (4) years.
(b) One (1) person, who shall be a private investigator, appointed by the Lieutenant Governor. The Lieutenant Governor shall appoint the member for an initial term of two (2) years. Thereafter, successor members shall be appointed for terms of four (4) years.
(c) One (1) person, who shall be a private investigator, who is appointed by the Speaker of the House of Representatives. The Speaker of the House of Representatives shall appoint the member for an initial term of two (2) years. Thereafter, successor members shall be appointed for terms of four (4) years.
(d) One (1) person, who shall be a private investigator, appointed by the Attorney General. The Attorney General shall appoint the member for an initial term of two (2) years. Thereafter, successor members shall be appointed for terms of four (4) years.
(e) One (1) person, who shall be a Mississippi licensed attorney in good standing, to be appointed by the Mississippi State Bar Association for an initial term of four (4) years. Thereafter, successor members shall be appointed for terms of four (4) years.
(f) One (1) person, who shall be a private investigator, appointed by the Mississippi Private Investigators Association. The association shall appoint the member for an initial term of four (4) years. Thereafter, a successor member shall be appointed for a term of four (4) years.
(4) Following the initial appointments, all successor members of the board shall be appointed for a term of four (4) years and shall serve until their successors are appointed.
(5) Any vacancy occurring on the board shall be filled by the appointing authority of the vacating seat of the unexpired term.
(6) No member may be appointed to succeed himself or herself for more than one (1) full term.
(7) The appointing authority may remove a member of the board for misconduct, incompetency or willful neglect of duty. The board may recommend to the appointing authority suggested administrative actions that may be taken against a board member for missing an excessive amount of meetings.
(8) Each member of the board shall receive a certificate of appointment from the Governor before entering upon the discharge of the duties of the office.
SECTION 5. (1) The board is declared to be a quasi-judicial body. Absent negligence, wantonness, recklessness or deliberate misconduct, the members and the employees of the board are granted immunity from civil liability and may not be liable for damages when acting in the performance of their duties under this act.
(2) Board members and employees shall be defended by the Attorney General in regard to any criminal or civil litigation filed against them based on the performance of their official duties under this act.
SECTION 6. At the initial meeting of the board and each time a new member is appointed to the board, the members of the board shall select from among their members a chair to preside over meetings of the board and a vice chair to preside in the absence of the chair.
SECTION 7. There is hereby created in the State Treasury for the use of the Mississippi Private Investigation Board a fund to be known as the Mississippi Private Investigation Board Fund. All application and license fees, penalties, fines and any other funds collected by the board under the provisions of this act are to be deposited into this fund and used only to carry out the operations of the board. No monies shall be withdrawn or expended from the fund for any purpose unless the monies have been appropriated by the Legislature and allocated pursuant to this act. Any monies appropriated shall be budgeted and allotted in the amounts provided by the Legislature in the general appropriations legislation.
SECTION 8. (1) The board may promulgate rules necessary to implement this act and accomplish its objectives subject to the Mississippi Administrative Procedure Act.
(2) The board may promulgate and establish canons of ethics and minimum acceptable professional standards of practice for licensees within any rules that it adopts.
(3) The board may hire personnel necessary or as advisable to carry out the purposes and provisions of this act. With the exception of the executive director, all personnel shall be subject to the provisions of law governing state employees.
(4) The Attorney General shall provide legal services to the board and board employees in connection with official duties and actions of the board.
SECTION 9. (1) The board shall establish regular and special meetings for the purpose of transacting its business as provided by rules promulgated by the board. Notice of board meetings and meetings of the board shall comply with the Mississippi Open Meetings Act.
(2) A majority of the board shall constitute a quorum at any meeting of the board.
SECTION 10. (1) Except as otherwise provided in this act, it shall be unlawful for any person to act as a private investigator without first obtaining a license from the board. For prosecution purposes, a violation of this act is classified as a misdemeanor.
(2) Each person licensed in accordance with this act shall designate to the board, a physical address where his or her records are to be kept.
SECTION 11. An application and all information on an application for licensure as a private investigator shall be treated as confidential and shall be filed with the board on forms prescribed by the board. The application shall include all of the following information of the applicant:
(a) His or her full name.
(b) His or her date and place of birth.
(c) All residences during the immediate past five (5) years.
(d) All employment or occupations engaged in during the immediate past five (5) years.
(e) Three (3) sets of classifiable fingerprints.
(f) A list of convictions and pending charges involving a felony or misdemeanor in any jurisdiction.
SECTION 12. (1) Each individual applicant shall meet the following criteria that he or she:
(a) Is at least twenty-one (21) years of age.
(b) Has not been declared by any court of competent jurisdiction incompetent by reason of mental defect or disease unless a court of competent jurisdiction has subsequently declared the applicant competent.
(c) Has not been convicted of a crime of moral turpitude, with the board having the final determination on the interpretation of moral turpitude.
(d) Has not been convicted of a felony crime.
(e) Has passed an examination to be administered twice annually by the board designed to measure knowledge and competence in the investigation field.
(2) A study guide shall be provided to any applicant seeking to obtain an initial or renewal license under this act.
(3) Any person operating or engaged in business as a private investigator before the effective date of this act shall not be required to meet the initial application requirements of this act, but shall be issued a license pursuant to this act upon application to the board. In order to be eligible for a license under this subsection (3), the person shall submit an application to the board with at least the following:
(a) The name of the person's business;
(b) The taxpayer identification number; and
(c) Any other information required by the board. The board shall review the application, determine whether the applicant qualifies for licensing under this subsection (3) and notify the applicant of its decision.
SECTION 13. (1) Upon receipt of an application for a license pursuant to this act, nonrefundable, nonprorateable application fees shall be submitted to this board by the applicant for the following services:
(a) A request that the Mississippi Bureau of Investigation compare the fingerprints submitted with the application to fingerprints filed with the Mississippi Bureau of Investigation. On subsequent applications, the Mississippi Bureau of Investigation, at the request of the board, shall review its criminal history files based upon the name, date of birth, gender, race and social security number of an applicant whose fingerprints have previously been submitted to the bureau of any new information since the date of the fingerprint comparison and shall furnish any information thereby derived to the board.
(b) A request to submit the fingerprints to the Federal Bureau of Investigation for a search of its files to determine whether an individual fingerprinted has any recorded convictions.
(2) After the approval of the application by the board, the board shall issue a license in a form prescribed by the board to each qualified applicant upon its receipt of a nonrefundable, nonprorateable private investigator license fee as set by the board.
(3) (a) If an application for a license is denied, the board shall notify the applicant in writing and specify the grounds for denial. If the grounds are subject to correction by the applicant, the notice shall so state and specify a reasonable period of time within which the applicant shall make the required correction.
(b) The applicant may submit an application for reconsideration to the board within thirty (30) days from the date of receipt of denial.
(4) The board shall issue a license to all licensees that shall be at least 8"X10" in size and shall be displayed on a wall of the workplace of the licensee. This license shall be deemed property of the State of Mississippi and subject to forfeiture to the state upon revocation.
SECTION 14. (1) The board shall issue to every private investigator licensee an identification card, which shall be issued in credit card size, be permanently laminated and contain the following information of the licensee:
(a) Name.
(b) Photograph.
(c) Physical characteristics.
(d) Private investigator's license number.
(e) Expiration date of license.
(2) The identification card shall be carried on the person of the licensee when engaged in the activities of the licensee as a private investigator.
SECTION 15. Making a false statement to the board shall be punishable by a civil penalty not to exceed One Thousand Dollars ($1,000.00).
SECTION 16. Upon receipt of an application and applicable fees, the board shall conduct an investigation to determine whether the statements made in the application are true.
SECTION 17. (1) All licenses issued or renewed under this act shall be valid for a period of two (2) years from the date of issuance. The board shall provide each licensee with a renewal application sixty (60) days before the expiration of the license.
(2) Each application for renewal shall be reviewed for criminal convictions and civil fraud findings.
(3) An administrative late fee not exceeding Two Hundred Dollars ($200.00) as prescribed by the board shall be assessed on any renewal application postmarked after the expiration date of the license.
(4) No renewal application may be accepted more than thirty (30) days after the expiration date of the license.
SECTION 18. (1) The board may suspend, revoke or refuse to issue or renew any license issued by it upon finding that the holder or applicant has committed any of the following acts:
(a) A violation of this act or any rule promulgated pursuant to this act.
(b) Fraud, deceit or misrepresentation regarding an application or license.
(c) Knowingly and willfully making a material misstatement in connection with an application for a license or renewal.
(d) A conviction by a court of competent jurisdiction of a felony.
(e) A conviction by a court of competent jurisdiction of a misdemeanor, if the board finds that the conviction reflects unfavorably on the fitness of the person for the license.
(f) The commission of any act which would have been cause for refusal to issue the license or identification card had it existed and been known to the board at the time of issuance.
(2) In addition to or in lieu of, any other lawful disciplinary action under this section, the board may assess a civil penalty not exceeding Two Thousand Dollars ($2,000.00) for each violation.
(3) A license may be suspended for the remaining license period and renewed during any period in which the license was suspended.
SECTION 19. No licensee or applicant shall be required to obtain any authorization or license from or pay any other fee or post a bond in, any municipality, county or other political subdivision of this state to engage in any activity regulated under this act.
SECTION 20. The board may negotiate and enter into reciprocal agreements with the appropriate officials in other states to permit licensed investigators who meet or exceed the qualifications established in this act to operate in reciprocal states under mutually acceptable terms.
SECTION 21. The board shall provide a copy of this act and any rules promulgated under this act to the following:
(a) Each licensee, upon issuance of an original license and every two (2) years thereafter upon license renewal.
(b) Any other person, upon request, for a reasonable fee established by the board.
SECTION 22. (1) The following acts when committed by an individual licensed as a private investigator in Mississippi shall constitute a violation punishable as a misdemeanor:
(a) To knowingly make a material misrepresentation as to the ability of the individual to perform the investigation required by a potential client in order to obtain employment.
(b) To make unsubstantiated monetary charges to a client for services not rendered or transportation not utilized.
(c) To knowingly make a false report to a client in relation to the investigation performed for a client.
(d) To continue an investigation for a client when it becomes obvious to the investigator that a successful completion of an investigation is unlikely without first advising the client and obtaining the approval of the client for continuation of the investigation.
(e) To reveal information obtained for a client during an investigation to another individual except as required by law.
(2) Persons licensed pursuant to this act shall report any suspected instances of child abuse or neglect to a local law enforcement agency or the Department of Human Services or both.
SECTION 23. The Mississippi Administrative Procedures Act shall govern all matters and procedures respecting the hearing and judicial overview of any contested case.
SECTION 24. This act shall not apply to the following:
(a) An employee of any business or entity that is not primarily engaged in the business of private investigation when that employee is performing duties related to his or her employment.
(b) An investigation of the internal affairs of a private business entity investigating a current or prospective employee.
(c) An employee of any business or entity that is not primarily engaged in the business of private investigation when that employee is working under a contract for his or her services that his or her employer signed with a third party.
(d) Any person or professional, including, without limitation, an attorney providing legal services, who is not primarily engaged in the business of private investigation, but who in conjunction with his or her business or profession may occasionally perform private investigation services.
(e) Any business or entity that is not primarily engaged in the business of private investigation.
(f) A consumer reporting agency as defined by the Federal Fair Credit Reporting Act.
(g) Any certified public accountant authorized to engage in the practice of public accountancy in the state or any entity licensed or otherwise permitted to engage in the practice of public accountancy in this state or the affiliated entities thereof.
(h) Any person who is:
(i) An attorney at law in good standing and licensed to practice law;
(ii) An employee of a single attorney or single law firm who is acting within the employee's scope of employment for the attorney or law firm; or
(iii) A consultant, accident reconstructionist or forensic scientist when the person is retained by an attorney, insurance company representative or appointed by a court to serve as an expert witness or to investigate or to make tests, conduct experiments, draw conclusions, render opinions or make diagnoses, where those services require the use of training or experience in technical, scientific or social science field.
(i) Any individual engaged in any of the following:
(i) Computer or digital forensic services.
(ii) The acquisition, review or analysis of digital or computer-based information in order to obtain or furnish information for evidentiary or other purposes or to provide expert testimony before any court, board, officer or investigating committee.
(iii) Network or system vulnerability testing, including network scans and risk assessment and analysis of computers connected to a network.
SECTION 25. (1) There is created within the board a Division of Investigation that shall be the board's official investigative agency.
(2) Each licensee shall provide to the investigative division staff all records that pertain to the exact nature of the complaint under investigation and upon the issuance of a subpoena.
(3) The board or an executive director of the board may subpoena those persons or documents necessary to any investigation undertaken under this act if other means including, but not limited to, notification by return receipt registered United States mail, have not produced the desired results. Any subpoena issued shall be limited to investigations by the board of its members and shall not extend to any other matter.
SECTION 26. (1) Each licensee shall complete eight (8) hours of continuing professional education acceptable to the board in each calendar year.
(2) The board shall make every effort to ensure at least one (1) seminar per year will be held in each congressional district of the state providing an opportunity to fulfill the continuing education requirements of this section, which shall include at least one (1) hour per year on ethics.
(3) The board shall promulgate rules necessary to carry out this section.
SECTION 27. (1) Any person offering private investigation training must first be certified by the board. The board shall ensure that the instructors employed by the training provider possess both the experience and academic credentials to ensure that the curriculum and instruction will be beneficial to those seeking to enter the profession. In order to qualify as a certified trainer or instructor or both, the trainer shall meet the following criteria that he or she:
(a) Is twenty-one (21) years of age.
(b) Has had at least three (3) years' experience satisfactory to the board with an investigative company or proprietary entity or with any federal, United States military, state, county or municipal law enforcement agency relating to the block of instruction.
(c) Is personally qualified to conduct the training required by this act and is certified by the board which shall establish standards for the instruction process.
(2) A certified trainer, in his or her discretion, may instruct personally or use a combination of personal, instruction, audio and visual training aids.
(3) To assist in the implementation of a training program, the certified trainer may use as an assistant trainer any person who meets each of the following requirements that the assistant:
(a) Is nineteen (19) years of age.
(b) Has had at least one (1) year of experience with an investigative company or any United States military, state, county or municipal law enforcement agency.
(4) A certified trainer may be an employee of a private investigative or propriety agency or, if not, employed by an agency as a company under this act.
(5) The certified trainer shall certify that he or she has successfully completed the training and shall submit the certification to the board.
(6) The training program, fees and requirements shall be established by rules promulgated by the board.
SECTION 28. No criminal or civil action taken under this act precludes a prosecution or action under any other law of this state.
SECTION 29. This act shall take effect and be in force from and after July 1, 2016.