Court to public officials who meet in private: ‘Don’t’
Published 12:35 am Thursday, September 21, 2017
It was a long, rainy summer across much of the state.
But September brought with it lots of sunshine — both literally and metaphorically.
Just as we started to enjoy one of the longest sustained periods of mild, sunny weather in months came news the State Supreme Court upheld a lower court ruling that the Columbus City Council violated the Mississippi Open Meetings Act.
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It was a unanimous 9-0 vote, no less. Talk about a win for sunshine laws.
The original complaint was filed with the Mississippi Ethics Commission in early 2014 by Nathan Gregory, a reporter at the time for The Commercial Dispatch in Columbus. Ethics ruled later that year against the mayor and city council for holding a series of separate, private meetings intended to avoid having a quorum present.
The city opted to appeal the decision, but a chancery judge later upheld the Ethics decision. Undeterred, the city trudged forward only to be reminded once again by the state’s highest court that the business of a city is also the business of its citizens.
Over the last decade, Mississippi’s so-called Sunshine Laws – including the Open Meetings Act and the Public Records Act – have been strengthened by broadening the powers of the Ethics Commission to offer rulings in complaints brought before it.
Previously, a complainant was on his own when it came to seeking relief, having to turn first to the courts. Often, those who made the complaints didn’t have the means to pursue them.
The Columbus case was complicated by several factors. This was one of the first instances of an Ethics ruling on open meetings being appealed, and Gregory had since left the newspaper for a job outside the industry.
The Dispatch, however, pressed forward with the representation of Mike Hurst and the Mississippi Justice Institute, the legal arm of the Mississippi Center for Public Policy based in Jackson.
Unique particulars of this case aside, elected officials wanting to conduct the public’s business behind closed doors is not an unfamiliar story across the state and the nation. A similar case is still on appeal in Lauderdale County where supervisors there were found in early 2015 to be in violation of the Open Meetings Act.
Even state agencies get tripped up on transparency.
Earlier this year, members of the Diamondhead City Council were found to be circumventing the act in a fashion similar to Columbus: Council members were meeting in pairs with State Auditor Stacey Pickering, again in an effort to avoid having a quorum present.
For his part, the auditor wrote a letter to the commission objecting to its ruling, offering a rather novel defense that his office is not subject to the Open Meetings Act.
We can split hairs over whether state agencies are subject to the law, but there should be no doubt the Diamondhead City Council is.
While these are three examples of questionable judgment on the part of public officials, it bears noting that way more follow the rules than don’t.
“The great majority of public officials want to follow the Open Meetings and Public Records laws, and do so,” said Leonard Van Slyke, an attorney skilled in media and transparency issues who represents the Mississippi Center for Freedom of Information.
“When the law is not followed, it is a combination of those officials who truly misunderstand the law and those who, unfortunately, willfully disobey it whether the reason is convenience or an effort to hide something from the voters.”
All of these cases are basically a fool’s errand and, no doubt, a further waste of taxpayer time and money.
Of the Columbus case, Ethics Commissioner Tom Hood told the Associated Press it “sends a strong message that secret, back-room deals with public boards are illegal.”
Still, though the Ethics Commission and now the Supreme Court are on record saying such meetings designed to circumvent quorums are a no-no, the law itself lacks teeth in terms of enforcement. About all that can be done is to tell violators: “Don’t do it again.”
“The Ethics Commission is to be commended for confronting the issue,” Van Slyke said. “The icing on the cake would now be for the legislature to strengthen the enforcement penalties.”
What kind of penalties?
“I think it is now time for the legislature to codify a rule that would invalidate any action taken in violation of the Open Meetings Law,” he said.
Now that would be a guard dog with a pretty sharp bite to it.
Meanwhile the Supreme Court decision in Columbus sets a strong precedent.
It should be the first commandment in any public official’s playbook: “Thou shalt not conduct the public’s business in private.”
Layne Bruce is executive director of the Mississippi Press Association. His email address is email@example.com.