BEFORE THE MISSISSIPPI ETHICS COMMISSION DICK HALL COMPLAINANT V. NO. M-09-007 MISSISSIPPI TRANSPORTATION COMMISSION RESPONDENT FINAL ORDER This matter came before the Mississippi Ethics Commission through an Open Meetings Complaint filed on August 31, 2009, by Central District Transportation Commissioner Dick Hall against the Mississippi Transportation Commission (MTC). The complaint is attached hereto as Exhibit 1. On September 11, 2009, MTC filed a response to the complaint by and through its chairman, Northern District Transportation Commissioner William R. Minor. The response is attached hereto as Exhibit 2. The Ethics Commission has jurisdiction over this matter pursuant to Section 25-41-15, Miss. Code of 1972. This Final Report and Recommendation of the hearing officer was prepared, filed and presented to the Commission in accordance with Rules 17.1.3 and 17.1.4, Rules of the Mississippi Ethics Commission. The parties have affirmatively declined to object to the Preliminary Report and Recommendation previously filed herein, as allowed in Rule 17.1, and have thereby waived their right to a hearing on the merits. Correspondence to that effect is attached hereto as Exhibit 3. FINDINGS OF FACT In the complaint Commissioner Hall alleges a number of individuals went to dinner together on the evening of August 10, 2009, at Nick s Restaurant in Jackson, Mississippi. Commissioner Hall alleges those in attendance included Commissioner Minor, Southern District Transportation Commissioner Wayne Brown, Mississippi Department of Transportation (MDOT) Executive Director Larry L. Butch Brown, Madison County Supervisor Tim Johnson, former Madison County Board of Supervisors attorney Ed Brunini, Jr., and Madison County Engineer Rudy Warnock. Commissioner Hall further alleges these individuals discussed the financing of the Interstate 55 Reunion Interchange, located in... Hall s district. Hall concludes two members of the MTC constitute a quorum, and the gathering violated the Open Meetings Act. In the response, MTC, through Commissioner Minor, confirms a number of facts, which are considered admissions by MTC. Commissioner Minor states he was invited to dinner by Supervisor Johnson, and he attaches an email in support of that assertion. The email is part of the response attached hereto as Exhibit 2. The email was sent on Thursday, August 6, 2009, from the Office of the Executive Director of MDOT and is addressed to Commissioners Minor and Brown, as well as other individuals not named in the complaint. The email reads simply,
Hall v. MTC Final Order Page 2 of 5 Commissioners Tim Johnson and Rudy Warnock have invited you and Butch to dinner this Monday night, August 10 th. I will send out an email tomorrow with time and location. Commissioner Minor provides background information on the Reunion Parkway Interchange project. He explains that the proposed interchange at Interstate Highway 55 and Reunion Parkway will be jointly funded by MDOT and Madison County. Commissioner Minor also reports as follows: I will tell you that during that dinner we were asked, since the cost of the Interchange at Reunion Parkway had gotten considerably higher, if we could put more money than the $6 million that we promised into it. We told him no, that we did not have the money because we had just given $30 million to the Legislature for balancing the budget. Commissioner Minor continues by describing a discussion involving the proposed construction of a hospital at the interchange, saying, Outside of that, there was no other mention of any State business. It is clear from the response that on August 10, 2009, two members of the Mississippi Transportation Commission met with a Madison County supervisor and the Madison County Engineer and discussed the funding of a joint highway project. CONCLUSIONS OF LAW The law applicable to this matter is well settled. 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). 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. (emphasis added) [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. The Legislature does not indicate that official acts must be taken in order for
Hall v. MTC Final Order Page 3 of 5 the gathering to be considered a meeting. Gannett at 466, 15. Official acts may be taken when a quorum of the public body is assembled. Id. Section 25-41-3 further defines a public body as any executive or administrative board, commission, authority, council, department, agency, bureau or any other policy making entity, or committee thereof, of the State of Mississippi. The Mississippi Transportation Commission is certainly a public body, as defined in the Open Meetings Act. Pursuant to Section 65-1-5, Miss. Code of 1972, two (2) Transportation Commissioners constitute a quorum of the Transportation Commission. 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) Official acts regarding the Reunion Parkway Interchange could have been taken at the August 10 th dinner since a quorum of the MTC was present, and the Commissioners in attendance discussed a matter over which the MTC has jurisdiction. The Commissioners were not at the dinner solely to listen, as board members would be at a training seminar or conference. Rather, Commissioners Minor and Brown attended a pre-arranged gathering and participated in a discussion with Madison County officials about funding for a joint highway project. Because a quorum of the MTC was present and the Commissioners deliberated over a matter within their jurisdiction, the dinner was not a chance meeting or purely social gathering. It was an illegal meeting in violation of the Open Meetings Act. The meeting was not open to the public, in violation of Section 25-41-5. No minutes of the meeting were kept, in violation of Section 25-41-11. No notice was provided, in violation of Section 25-41-13. IT IS HEREBY ORDERED as follows: 1. The Mississippi Ethics Commission finds Northern District Transportation Commissioner William R. Minor and Southern District Transportation Commissioner Wayne Brown knowingly and willfully violated Sections 25-41-5, 25-41-11 and 25-41-13, of the Open Meetings Act when, on August 10, 2009, they assembled a quorum of the Mississippi Transportation Commission and discussed a matter over which the Mississippi Transportation Commission has jurisdiction without providing public access, providing notice, or recording minutes. 2. The Mississippi Ethics Commission orders the members of the Mississippi Transportation Commission to refrain from assembling together, in person or by electronic
Hall v. MTC Final Order Page 4 of 5 means, thereby establishing a quorum of the three-member MTC, and discussing any matter over which the MTC has supervision, control, jurisdiction or advisory power, except during a properly called, noticed and recorded public meeting. SO ORDERED this the 6 th day of November 2009. MISSISSIPPI ETHICS COMMISSION BY: TOM HOOD, Executive Director and Hearing Officer
Hall v. MTC Final Order Page 5 of 5 CERTIFICATE OF SERVICE I, Tom Hood, Executive Director and Hearing Officer for the Mississippi Ethics Commission, do hereby certify that I have this day transmitted a true and correct copy of the foregoing document to the parties by transmitting it by electronic means and by mailing it to the last known address, all as follows: Commissioner Bill Minor Mississippi Transportation Commission P. O. Box 2060 Tupelo, MS 38803-2060 Facsimile: 662-844-5731 Email: bminor@mdot.state.ms.us Commissioner Wayne H. Brown Mississippi Transportation Commission P. O. Box 1850 Jackson, MS 39215-1850 Facsimile: 601-359-9860 So certified this 10 th day of November 2009. Commissioner Dick Hall Mississippi Transportation Commission 2569 N. West St. Jackson, MS 39216 Facsimile: 601-359-7051 Email: dhall@mdot.state.ms.us TOM HOOD