Ethics Commission Lauderdale

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BEFORE THE MISSISSIPPI ETHICS COMMISSION THOMAS E. WILLIAMS

COMPLAINANT

VS.

NO. M-14-001

LAUDERDALE COUNTY BOARD OF SUPERVISORS

RESPONDENT

FINAL ORDER

This matter came before the Mississippi Ethics Commission through an Open Meetings Complaint filed on January 13, 2014, by Mr. Thomas E. Williams against the Lauderdale County Board of Supervisors, hereinafter referred to as “the Board.” On March 27, 2014, the Board filed a response to the complaint by and through one of its attorneys. The Ethics Commission has jurisdiction over this matter pursuant to Section 25-41-15, Miss. Code of 1972. A Preliminary Report and Recommendation of the hearing officer was  prepared in accordance with Rule 4.6, Rules of the Mississippi Ethics Commission, and filed on August 8, 2014. The respondent then filed a Request for Reconsideration, and the hearing officer set the case for hearing on November 4, 2014. Due to the excused absence of one of the witnesses, the hearing was continued until November 25, 2014, and concluded on that date. In accordance with Rule 4.6, the Final Report and Recommendation was submitted on December 31, 2014, for consideration by the Commission at its regularly scheduled meeting on January 9, 2015. The respondent submitted a brief in opposition to the Final Report and Recommendation on January 8, 2015. The Commission considered this matter and heard oral arguments from the complainant and respondent on January 9, 2015. PROCEDURAL HISTORY AND FINDINGS OF FACT Both the complaint and response provide numerous facts, many of which, while helpful to understanding the background from which this dispute arises, are not directly relevant. The response in particular provides a relatively detailed chronology, which was considered in the light most favorable to the respondent. Numerous exhibits were also provided. The following facts were recited in the Preliminary Report and Recommendation, which relied almost entirely upon the response.  A.

Response

The Board had for some time prior to March of 2013 considered issuing bonds to pay for a range of improvements to county owned property, including proposed recreational facilities to  be constructed in Supervisor Districts 3 and 4. [Response, pp. 2-5.] In connection with the  possible bond issue, the county administrator, Mr. McCraney, had contacted a public finance consultant, Mr. Grubbs. [Id.] The consultant was asked to provide an estimate of how much money the Board could borrow through a bond issue without raising ad valorem  taxes and without precluding another bond issue at the beginning of the next term of office. [Response, p.

 

 M-14-001

Final Order

Page 2 of 6

5] The county administrator received written estimates and other information from the consultant and shared the information with each supervisor separately and individually. [Response, p. 6] Subsequently, on March 22, 2013, District 2 Supervisor, Mr. Newell, and District 4 Supervisor, Mr. Norwood, encountered each other by chance in the area of the supervisors’ offices and  briefly discussed one of the proposed projects. [Id.] On March 26, 2013, a meeting was held at the law office of the board attorneys. In attendance were the consultant, the county administrator, one of the board attorneys, District 2 Supervisor, Mr. Newell, and District 1 Supervisor and Board President, Mr. Florey. [Response,  p. 7] The purpose of the meeting was to consider information presented by the consultant regarding the amount of money the Board could borrow through a bond issue without raising   taxes and without precluding another bond issue at the beginning of the next term of office. [Id.] Later that same day a separate meeting was held for the same purpose in the Supervisors’ Conference Room in the courthouse. Attending were the consultant, District 3 Supervisor, Mr. Todd, and District 5 Supervisor, Mr. Rutledge.1 [Response, p. 8] In both meetings, the discussion focused on whether the Board could issue bonds totaling $10-18 million without raising  taxes and without precluding another bond issue at the beginning of the next term of office. [Response,  pp. 7-8] 2

On March 28, 2013, a Board meeting, characterized in the response as a “work session,”   was held in preparation for a regular meeting of the Board scheduled for April 1 st. [Response, pp. 8-9] The proposed bond issue was not discussed at the work session. [Id.] Following the work session the board president and the county administrator met to finalize the agenda for the upcoming regular board meeting, and, according to the initial response, the board president asked the county administrator to “poll” two of the board members, Mr. Todd of Dist. 3 and Mr.  Norwood of Dist. 4, and specifically ask whether they would support a letter of intent to issue  bonds in the amount of $14 million. [Response, p. 10] Again according to the initial response,  both members confirmed their support; the matter was placed on the agenda, and the county administrator asked the board attorney to have the Board’s bond counsel prepare a Resolution of Intent. [Id.] Thereafter, the county administrator sent a text message to Dist. 5 Supervisor Rutledge and Dist. 2 Supervisor Newell informing them the $14 million bond issue had been  placed on the agenda for the next meeting. [Id.] The initial response also stated that both supervisors responded to the text message by calling the county administrator and were both told that Supervisors Florey, Todd and Norwood had “‘decided’ that the amount was $14 million.” [Id.] At the regular board meeting on April 1, 2013, the Board voted 3 to 2 to adopt a Resolution of Intent to issue $14 million in bonds for the recreational projects and courthouse repairs. [Response, p. 11] Supervisors Florey, Todd and Norwood voted in favor of the resolution; Supervisors Newell and Rutledge opposed. [Id.] 1

 Todd recalls that Norwood entered the room momentarily to greet the consultant. If that recollection is true, then a quorum of the Board (three members) was briefly gathered. g athered. 2  A “work session” is understood to be a meeting of a public body at which the members of the public body have agreed to take no official action. A “work session” is, therefore, a “meeting” as defined in Section 25-41-3(b), Miss. Code of 1972. Consequently, public notice must be provided, and minutes must be kept. There is no allegation that the “work session” noted herein was held in violation of the Open Meetings Act. This notation is made solely for clarity of the record.

 

 M-14-001

 B.

Final Order

Page 3 of 6

Pre-Hearing Phase

Following the issuance of the Preliminary Report and Recommendation, the board associated the law firm of Butler Snow, LLP, and was given additional time in which to file a Request for Reconsideration of the Preliminary Report and Recommendation. In the Request for Reconsideration, the respondent made numerous legal arguments regarding both of the primary issues addressed in the Preliminary Report – (1) the meetings involving a bond consultant and  board members and (2) communications between the county administrator and members of the  board. Additionally, the Request for Reconsideration asserts that certain facts contained in the response which relate to communications between the county administrator and board members were inaccurate. Because the facts relied upon in the Preliminary Report were called into question, the hearing officer set the case for hearing on November 4, 2014. Due to the excused absence of one of the witnesses, the hearing was continued until November 25, 2014, and concluded on that date. Because the facts contained in the Preliminary Report related to the meetings between the  bond consultant and board members were not disputed, the hearing was limited to facts involving communications between the county administrator and members of the board of supervisors which occurred on or about March 28, 2013. C.

Hearing

The first witness called at the hearing was Mr. McCraney, the former county th administrator. He testified that after the work session on March 28 , he met with Mr. Florey, the former board president, to finalize the agenda for the upcoming board meeting, and Mr. Florey decided to place the bond issue on the agenda. Mr. McCraney also testified that Mr. Florey did not ask him to contact the other supervisors regarding the bond issue being placed on the agenda. Rather, Mr. McCraney decided he should notify the other board members that the matter would  be on the agenda. Mr. McCraney further testified that he chose to set the amount of the proposed  bond issue at $14 million based upon the information presented by the bond consultant. Mr. McCraney said he sent a text message to Mr. Newell and Mr. Rutledge and called Mr. Todd and Mr. Norwood, telling all of them that Mr. Florey had placed a $14 million bond issue on the agenda. Mr. McCraney also stated that Mr. Florey never asked him for any feedback from the other board members and that none of the other supervisors asked him to convey any information to Mr. Florey. Each of the supervisors was also called to testify. Their testimony gave no indication that any of them shared information with Mr. Florey through their communications with Mr. McCraney. While Mr. Newell and Mr. Rutledge acknowledged speaking to each other about the agenda item, there was no indication that three or more supervisors communicated with each other about the bond issue being placed on the agenda. CONCLUSIONS OF LAW At the outset, it is important to note that this matter involves pre-arranged meetings  between a consultant and members of the board of supervisors whereby a quorum of the board (albeit in separate meetings of less than a quorum) intended to discuss and determine matters squarely within the control and jurisdiction of the board. The central facts of this case are that the

 

 M-14-001

Final Order

Page 4 of 6

 board members divided into two separate groups of less than a quorum of the board and conducted separate meetings about the same subject, with the same consultant, on the same day.  Numerous questions may be raised by this case involving scenarios which are similar to but factually distinguishable from the facts herein. However, the Ethics Commission has no advisory authority under the Open Meetings Act, and this decision is limited only to the specific facts of this case. “The Open Meetings Act was enacted for the benefit of the public and is to be construed liberally in favor of the public.” Board of Trustees of State Insts. of Higher Learning v. Miss. Publishers Corp., 478 So.2d 269, 276 (Miss. 1985). In Hinds County Board of Supervisors v. Common Cause of Mississippi, 551 So.2d 107 (Miss.1989), the Supreme Court summarized the Legislative intent of the Open Meetings Act as follows: Every member of every public board and commission in this state should always  bear in mind that the spirit of the Act is that a citizen spectator, including any representative of the press, has just as much right to attend the meeting and see and hear everything that is going on as has any member of the board or commission. Id. at 110. “However inconvenient openness may be to some, it is the legislatively decreed public  policy of this state.” Mayor & Aldermen of Vicksburg v. Vicksburg Printing & Pub., 434 So.2d 1333, 1336 (Miss.1983).  A.

Piecemeal Quorum

Section 25-41-3, Miss. Code of 1972, defines a “meeting” as “an assemblage of members of a public body at which official acts may be taken upon a matter over which the public body has supervision, control, jurisdiction or advisory power.” “‘[O]fficial acts’ includes action relating to formation and determination of public policy....” Gannett River States Pub. Corp., Inc. v. City of Jackson, 866 So.2d 462, 466, ¶ 16 (Miss. 2004), quoting Bd. of Trustees at 278. Official acts may be taken when a quorum of the public body assembles. Gannett at 466, ¶ 15. “The Legislature does not indicate that official acts must be taken in order for the gathering to be considered a meeting.” Gannett at 466, ¶ 15. The Open Meetings Act does “not apply to chance meetings or social gatherings of members of a public body.” Section 25-41-17. Moreover, not every “informal or impromptu meeting” is subject to the Open Meetings Act. Hinds County at 122. A public board should be available for social functions with charities, industries and businesses, at which no action is taken and their only function is to listen , without being subjected to the Act. Therefore, a function attended by a public  board, whether informal or impromptu, is a meeting with the meaning of the Act only when there is to occur “deliberative stages of the decision-making process that lead to formation and determination of public policy.” Id. at 123, quoting Bd. of Trustees at 278. (emphasis added)

 

 M-14-001

Final Order

Page 5 of 6

On March 26, 2013, the bond consultant met with four supervisors, a quorum of the  board. The consultant first met with two supervisors and then separately met with another two supervisors but discussed the same topic with all four supervisors. Although the board intended to comply with the law, these two separate meetings circumvented the Open Meetings Act by avoiding a physical gathering of a quorum at the same place at the same time. However, the consultant met with all four supervisors about the same matter, a matter under the authority of the Board. Those gatherings involved the “deliberative stages of the decision-making process that lead to formation and determination of public policy” regarding the subsequent bond issue. Those gatherings collectively constitute a “meeting” of the Board within the meaning of the Act. These private gatherings were clearly intended to exclude the public from the deliberations by the board members about a matter of public concern. Those deliberations should have only occurred at a properly noticed public meeting of the Board.  B.

Polling Board Members

The Supreme Court has condemned the practice of polling board members outside of a  properly noticed public meeting “insofar as such telephone polls in fact circumvent the act by  preventing public disclosure of deliberation and conduct of business.” Bd. of Trustees at 278. Moreover, due to statutory amendments subsequent to the Bd. of Trustees case, voting by telephone must now take place only during a properly noticed telephonic meeting, pursuant to Section 25-41-5, rendering all such “telephone polling” entirely illegal. See Section 25-41-5(2); House Bill 583, 2003 Regular Session. However, no violation occurs when a board member or board employee merely conveys information to members of the board, even a quorum. The county administrator and other employees of the board are free to communicate with board members on matters of county  business. Such communication is essential to the proper administration of governmental functions. Likewise, individual board members are free to communicate with other individual  board members, so long as these communications do not involve a quorum of the members. Yet a violation occurs when a quorum of the board begins to share with one another information or opinions about a matter under their authority. The exchange of communications  between or among board members is a “deliberation,” whether by telephone, text message, email or any other means of telecommunication. Deliberations are “official acts,” within the meaning of the Open Meetings Act. Gannett at 466, ¶ 15-16. Therefore, an exchange of communications among a quorum of a board regarding a matter under the authority of the board is a “meeting.” The facts gathered from sworn testimony at the hearing in this case consistently indicate no illegal telephone polling occurred on March 28, 2013, despite the facts initially provided in the response. Mr. McCraney stated under oath that Mr. Florey did not ask him to poll the board members but that Mr. McCraney took it upon himself to inform the board members that Mr. Florey had placed the bond issue on the agenda for the upcoming meeting. Mr. Florey’s testimony was consistent with that of Mr. McCraney. The testimony of the other supervisors  provided no evidence that a quorum had communicated with each other regarding the agenda item, either directly or indirectly through Mr. McCraney. Mr. Florey and Mr. McCraney further testified that, as board president, Mr. Florey alone decided the bond issue would be on the agenda and that Mr. McCraney merely informed the other supervisors of that decision.

 

 M-14-001

Final Order

Page 6 of 6

Consequently, the findings and recommendations in the preliminary report which relate to the issue of telephonic polling are hereby withdrawn. C.

Validity of Board Action

Finally, actions taken by a public body are not invalidated simply because those actions violate the Open Meetings Act. Shipman v. North Panola Consolidated Sch. Dist., 641 So.2d 1106, 1117 (Miss. 1994). Consequently, the action taken by the Board on April 1, 2013, to adopt a Resolution of Intent to issue $14 million in bonds for recreational projects and courthouse repairs is not invalidated by the violations of the Open Meetings Act found herein. Moreover, the Ethics Commission has no authority to invalidate any bonds issued by the Board. IT IS HEREBY ORDERED as follows: 1.  The Mississippi Ethics Commission hereby finds Board members Newell, Florey, Todd and Rutledge violated Sections 25-41-5, 25-41-11 and 25-41-13, of the Open Meetings Act when, on March 26, 2013, they established a quorum of the Lauderdale County Board of Supervisors by holding two separate gatherings with the same consultant and discussing a matter over which the Board has authority without providing public access, providing notice, or recording minutes. 2.  The commission hereby orders the board to refrain from further violations and comply strictly with Sections 25-41-5, 25-41-11 and 25-41-13. SO ORDERED this the 9th day of January 2015. MISSISSIPPI ETHICS COMMISSION

BY: __________________________________ TOM HOOD, Executive Director

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