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MFP to Appeal Determination That Legislature Is Not A ‘Public Body’

Closeup of Rob McDuff at the mic in a courtroom
Rob McDuff of the Mississippi Center for Justice is representing the Mississippi Free Press in challenging a Mississippi Ethics Commission decision to declare the State Legislature not a public body under the Open Meetings Act. The case now goes to Hinds County Chancery Court. (AP Photo/Rogelio V. Solis)

The Mississippi Free Press will appeal the Mississippi Ethics Commission’s determination that the State Legislature is not a public body under the Open Meetings Act. That decision, which the commission finalized today, allows the House Republican Caucus to gather a full quorum of the Mississippi House of Representatives and deliberate on legislation in secret. The Mississippi Free Press has previously covered the important legislative activities carried out in secret at these gatherings

Mississippi Free Press Editor and CEO Donna Ladd released a joint statement with counsel Rob McDuff of the Mississippi Center for Justice, the legal nonprofit that continues to represent this reporter and this outlet during the proceedings. 

Read the Mississippi Center for Justice’s press release in full.

“While we will appeal this decision, we also call on the Legislature to amend the Act so it is clear that it is subject to all of the transparency required of all other public bodies in Mississippi,” Ladd said in today’s statement. “The public and the press have a right to know, and there is no reason the Legislature should be held to a lesser standard than every city council and board of supervisors throughout the state. Any notion that a Legislature full of elected officials is not a public body is a strike against public transparency.”

The issue now goes to the Hinds County Chancery Court, where the question of the Legislature’s openness can also be interpreted in light of Mississippi Constitution Section 58, which declares that “the doors of each House, when in session, or in committee of the whole, shall be kept open, except in cases which may require secrecy.” Decisions at the level of this court may be appealed all the way to the Mississippi Supreme Court.

McDuff called on the Legislature to fix the lack of transparency before the court system forced their hands. “We are appealing because we believe the Ethics Commission got it wrong, but the legislature could easily fix this by requiring itself to live up to the standards it requires of other public bodies,” he wrote today.  

Ethics Commission Admits Ambiguity 

Today, the Mississippi Ethics Commission delivered its final opinion on this reporter’s complaint, formally declaring the State Legislature not a public body under the state’s Open Meetings Act. A 5-3 vote adopted a formerly presented draft finding that the specific legal wording of the Open Meetings Act either carefully or unintentionally excluded the Legislature as a whole, in spite of including and excluding specific committees, subcommittees, and other policymaking entities.

Initially, Ethics Commission Executive Director Tom Hood issued a recommendation that the commission should side with the Mississippi Free Press, declaring the Legislature a public body. The final vote fell along the same lines as the initial decision to reject his recommendation, 5-3.

Chairman Ben Stone, Vice Chairman Sean A. Milner, Stephen W. Burrow, Erin P. Lane and Samuel C. Kelly all voted in favor of the final order. Secretary Ron E. Crowe, Robert G. Waites and Maxwell J. Luter voted against it.

Mississippi Ethics Commission Executive Director Tom Hood issued a recommendation in support of the Legislature’s status as a public body. But the Ethics Commission rejected his recommendation. Photo by Nick Judin

In today’s hearing, Rob McDuff, who represents the Mississippi Free Press and this reporter, made a final push for an interpretation of the Open Meetings Act in favor of including the Legislature—the single largest architect of public policy in the state.

McDuff’s final argument concerned the language in Section 25-41-3(a) of the Open Meetings Act, which includes:

“Any executive or administrative board, commission, authority, council, department, agency, bureau or any other policymaking entity, or committee thereof, of the State of Mississippi, or any political subdivision or municipal corporation of the state, whether the entity be created by statute or executive order, which is supported wholly or in part by public funds or expends public funds, and any standing, interim or special committee of the Mississippi Legislature.”

McDuff argued that proper interpretation of legal language should mean the second “any,” referring to “any other policymaking entity” severs its connection to the first “any” which specifies executive and administrative boards. McDuff quoted the writing of Supreme Court Justice Antonin Scalia in his reasoning.

“‘The typical way in which syntax would suggest no carryover modification is that a determiner (a, the, some,) will be repeated before the second element.’ The word any is a determiner,” he said. “When you have the second any—’or any other policy making entity,’ that breaks the chain … If that’s true, the Legislature is included.”

Counsel for Philip Gunn and the Mississippi House of Representatives declined to respond further, deferring to the final order that the Ethics Commission would eventually adopt.

Commissioner Maxwell Luter, who previously supported the Mississippi Free Press in their complaint against the House of Representatives, offered an amendment that would have left the Mississippi Ethics Commission neutral on the matter, deferring to the court system and considering the question a matter of constitutional as well as statutory law.

Read the Mississippi Ethics Commission’s final decision in full.

“Consequently, the question of law raised by this case cannot be answered without applying both the Open Meetings Act and the Mississippi Constitution,” Luter wrote. “Since the Ethics Commission has no jurisdiction to apply to the Constitution in this case, the Ethics Commission cannot issue a definitive ruling. Only the courts have the broad authority to rule in this case.”

Luter withdrew his amendment during a flurry of discussion over the ambiguity of the statute’s language.

A number of conclusions complicated the last day of deliberations. First, does the Open Meetings Act apply to the Legislature as a public body and policymaking entity? Second, is the Open Meetings Act ambiguous or clear on the question of the Legislature’s fundamental openness? And third, does the Mississippi Ethics Commission have the information and authority to apply the Open Meetings Act without interpreting the Mississippi Constitution?

Commissioner Sean Milner also proposed an amendment that would have strengthened the Commission’s language by declaring that the Open Meetings Act unambiguously excludes the Legislature. Milner later withdrew his amendment as well. In the end, the Commission’s final order acknowledges ambiguity as to the Legislature’s inclusion.

“§25-41-3(a) does refer to ‘any other policymaking entity’ being a public body. Such wording, taken alone, could include the House of Representatives. Consequently, the Commission finds §25-41-3(a) to be ambiguous on this particular issue,” the final decision reads.

For now, the Ethics Commission has answered those questions in favor of Philip Gunn and the House Republican Caucus. But Ethics Commission Chairman Ben Stone, who voted to adopt today’s final order, himself acknowledged that the conclusion to the dispute was inevitably headed to the courts.

“From here I’m certain there’s going to be an appeal,” Stone said, “and we’ll be looking to see what comes of that.”

The Mississippi Center for Justice will continue to represent this reporter and the Mississippi Free Press in the coming appeal. MCJ President and CEO Vangela M. Wade wrote in today’s statement that “we are pleased to represent the Mississippi Free Press and stand with those who understand that we need more transparency in government, not more secrecy. The future of Mississippi should not be decided behind closed doors.”

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