Bobby Harrison: Perplexing ruling gives MS Legislature right to meet behind closed doors
Hinds County Chancellor Dewayne Thomas recently affirmed the ruling of the Mississippi Ethics Commission that the state Legislature is not covered by the open meetings law and thus can meet behind closed doors.
The Mississippi Open Meetings Act says specifically that all 'policy making bodies' are subject to the law. But Thomas and the Ethics Commission majority said the law is referring to executive bodies, not the Legislature, when referencing policy making bodies.
Taking that ruling to the extreme begs the question of whether city councils and city boards of aldermen meetings are covered since they also are legislative bodies.
To exclude the Mississippi Legislature from the requirement of meeting in public seems questionable considering that the Legislature appropriates more public money than any entity in the state. And the Legislature is the state's primary policy making body with immense power.
It also is worth noting that both the current and past director of the Ethics Commission disagreed with the ruling of the majority of the commission members. The former lead attorney for the Mississippi House, previously on the Ethics Commission, also opposed the ruling that the Legislature is not covered by the open meetings law.
This perplexing issue came to the forefront because of the House leadership's ongoing practice of holding closed-door Republican caucus meetings where policy is discussed and unofficial votes are taken. It was argued that the meetings were illegal since Republicans comprise a super majority giving them many more members than needed to constitute a quorum.
The Ethics Commission made the ruling in 2022 that the Legislature was not subject to the open meetings law and Thomas, a former member of the House, upheld that ruling.
Senate Republicans, who also have a super majority, do not hold similar meetings because of the belief that it would be a violation of the open meetings law. When Phil Bryant presided over the Senate as lieutenant governor from 2008 until 2012, he was holding similar meetings until media members asked if the meetings were a violation of the open meetings law. He announced he would no longer hold the closed-door meetings.
The Mississippi Constitution does state emphatically, 'The doors of each house (of the Legislature) when in session shall be kept open.'
Many of those who would argue that the Legislature is not covered by the open meetings law claim that the constitutional provision only applies to the limited time when a chamber gavels in and does not even cover the time when the Legislature is in session but not gaveled in. If a majority meets during the 90-day session at the speaker's discretion to discuss business but does not specifically gavel into session, the constitutional provision would not apply, they claim.
Before the 2000 session of the Mississippi Legislature, then-Speaker Tim Ford called a meeting of the House members at a location away from the Capitol.
There was intense interest in the meeting since on the quickly approaching first day of the 2000 session the House would select the state's next governor.
For the first time in the history of the state, the losing gubernatorial candidate was asking House members to decide the gubernatorial election under an antiquated and now repealed provision of the Mississippi Constitution. The provision said to win statewide office a candidate had to claim a majority of the popular votes and win the most votes in a majority of the 122 House districts. Democrat Ronnie Musgrove won the most votes, but did not win a majority.
Needless to say, Ford's out-of-session meeting before that historic first-day vote generated interest. Under the ruling of the Ethics Commission and Thomas, the meeting would not have been subject to the open meetings law.
Ford allowed media to attend the meeting. The issue of whether the meeting was public did not arise.
It is difficult to recall an instance when Ford or other past speakers routinely held meetings of a majority of the House behind closed doors to discuss official business and to take unofficial votes.
In those days, there were legislative whips designated by the leadership to meet with small groups to discuss policy and to try to sway votes.
Sure, it took more work than just getting all your members together behind closed doors. But it also did not violate at least the spirit of the open meetings law.
After the Ethics Commission ruling in 2022, Sen. Jason Barrett, R-Brookhaven, filed a bill to clarify that the Legislature is covered by the open meetings law. The bill had 19 co-sponsors in the 52-member Senate. But it died in committee.
Perhaps such a bill will be considered again after Thomas' most recent ruling.
This analysis was produced by Mississippi Today, a nonprofit news organization that covers state government, public policy, politics and culture. Bobby Harrison is Mississippi Today's senior Capitol reporter.
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