Mississippi secrecy laws weaker than most

Published 12:03 am Wednesday, January 27, 2010

VICKSBURG (AP) — ‘‘Ultra vires’’ is not some exotic form of swine flu. It’s not even a super new disposable razor.

It’s just a dusty old legal doctrine, but it does have continuing significance in most states and could become part of the Open Meetings Act in Mississippi, too.

According to a survey by the Massachusetts Newspaper Publishers Association, eight of the 50 states use a form of ‘‘ultra vires’’ to declare void any action taken by a public board in an illegally closed meeting.

Twenty-nine additional states empower courts or review panels to cancel any decisions made or actions taken in such meetings.

Mississippi is not among the states that, by statute, have chosen this approach to entice those who wield public power, large or small, to let the public in on their deliberations and actions.

Tennessee is.

‘‘All meetings of any governing body are declared to be public meetings open to the public at all times, except as provided by the Constitution of Tennessee,’’ reads Section 8-44-102(a). Further, Section 8-44-105 provides, ‘‘Any action taken at a meeting in violation of this part shall be void and of no effect.’’

‘‘Ultra vires’’ means ‘‘without authority.’’ An everyday example would be a son who has been given the keys to his father’s car and who, in turn, gives a friend permission to drive. It can’t be said that the friend has permission, because the son didn’t have authority to give it.

Similarly, if a group of people appointed or elected to conduct public business — for convenience, because they were in a hurry or because they honestly think secrecy is in their interest or the public’s — doesn’t allow interested citizens to sit in and listen, they are doing so without the permission of the law, which requires meetings, unless exempted, to be open. The logic is that no legal act can occur in an illegal meeting.

Among other Southern states, Alabama, Louisiana and Texas statutes don’t automatically void actions taken in illegally closed meetings. They do, however, specifically give judges the authority to do so at their discretion.

Almost all states, except Mississippi, allow civil fines to be imposed on violators. Others allow for removal or even criminal penalties, including jail time.

Until recently in Mississippi, any citizen who believed business that should have been discussed or transacted in open session took place in an illegal closed session had to go to court.

There, if a judge agreed, an order saying so was the remedy. The judge might issue an injunction instructing the public board or agency not to break the law in the future, but that was it. The citizen who complained had a right, but not a remedy.

That has changed, slightly.

Two years ago, the Mississippi Legislature added review of open meetings issues to the responsibilities of the Mississippi Ethics Commission, where Tom Hood is executive director. He called it a big step in the right direction.

‘‘Legislators, by and large, appreciate the value of openness in government and are generally supportive of open meetings legislation,’’ Hood said. ‘‘For some, it’s a higher priority than for others, and so naturally some are more enthusiastic than others. But certainly most legislators understand that open meetings are necessary to ensure government is responsive to the concerns of the people of Mississippi.’’

The authority of the Ethics Commission is one thing. The understanding of the purpose of openness, how it helps public boards earn trust and the nuances of state law are another.

‘‘Unfortunately, there’s a lot of confusion about the Open Meetings Act among board members throughout the state, both in its application and purpose,’’ Hood said. ‘‘The fix for that is education.’’

Hood said he’s conducting about 30 seminars a year statewide to familiarize public bodies with their duty to allow people to attend their meetings, even if board members feel inhibited or intimidated.

‘‘The media can also help by reminding the public they have a right to know what public boards are doing on their behalf with their tax dollars,’’ Hood said.

The Mississippi Ethics Commission has a complaint form on its Web site (http://www.ethics.state.ms.us).

Also available are the commission’s advisory opinions that can be helpful to people who want to become more familiar with the rules. The new law, Hood said, is helping by providing for Mississippians tools they’ve never had before.

‘‘We’re seeing a positive reaction to our involvement in open meetings enforcement,’’ Hood said. ‘‘It’s put open meetings on the radar and reminded board members and private citizens that open meetings are important and the law has to be followed.’’

Other than confirming that a board has or has not complied, the Ethics Commission has only one additional step it can take — imposing a $100 fine that if paid will come from public funds, not the pockets of those who failed to follow the law. Hood’s pretty clear about the effect of the fine.

‘‘It’s no good,’’ he said. ‘‘We need to be able to punish individual board members for breaking the law.’’

And like all agencies tasked with duties by the Legislature, it takes money to put the policies into effect.

‘‘Last year we took on two new major areas of jurisdiction, open meetings and public records,’’ Hood said. ‘‘But our staff has not been increased and our budget has been cut. Everyone is affected by the current budget situation, but it’s been especially tough on our small agency.’’

Hood believes a mechanism similar to those in other states — where decisions made in closed meetings are void on their face or voidable in a court action — would stimulate more awareness of the law and more interest in compliance.

‘‘It’s absolutely appropriate,’’ Hood said. ‘‘If a public board takes an action in secret in violation of the Open Meetings Act, that action should have no effect. It would also provide an additional deterrent against violations.’’

The law can be confusing, but there also are boards and commissions that continually flout the act. The Ethics Commission could sort them out, Hood said.

Some leeway should be allowed in the event of mistakes and emergencies,’’ Hood said. ‘‘The Ethics Commission should be given the authority to void actions which violate the Open Meetings Act.’’

Whether there is legislation to accomplish that during the 2010 session remains to be seen.

‘‘I think there is considerable sentiment in the Legislature to do that in this session,’’ Hood said.

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Charlie Mitchell is executive editor of The Vicksburg Post.

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On the Net:

Mississippi Center for Freedom of Information: http://www.mcfoi.org