Ethics Complaint Dismissed Against The City
Staff Report
The Mississippi Ethics Commission dismissed a Complaint filed by the North Mississippi Herald against the Water Valley Board of Aldermen after a July 7, 2009 meeting.
The complaint was filed after city officials entered executive session to discuss the hiring of John Crow as the board attorney on July 7, 2009. At that meeting, the Herald objected to the closed session, citing employment of an attorney was not a personnel issue.
A personnel matter, defined as “transaction of business and discussion of personnel matters relating to the job performance, character, professional competence, or physical or mental health of a person holding a specific position” is defined as one of a dozen reasons listed as reasons that allow a board to enter executive session.
Citing a Mississippi Supreme Court ruling in a 1989 case, Hinds County Board of Supervisors v. Common Cause of Mississippi, the Herald argued in the complaint that the hiring of the board’s attorney should be treated as an independent contractor rather than as an employee.
In the landmark 1989 case, the Mississippi Supreme Court ruled that “an independent contractor such as an accountant, lawyer, or architect is not an employee of the board and would not come under ‘personnel.’”
Crow filed an answer to the complaint, citing that the employment of a city attorney is a personnel matter which may be discussed in executive session. Crow cited numerous statutes and Attorney General’s opinions on which he relied in advising the board that it was permissible to enter executive session. Crow also stated that the city withholds federal and state income tax, FICA, Medicare and retirement contributions from his pay as city attorney.
“The dispute in this case is not about the facts but about the law,” wrote Mississippi Ethics Commis-sion Director Tom Hood in the four page ruling handed down October 13.
“The employee-versus-independent-contractor can follow a number of different tracks, depending on the purpose of the analysis or the definition of the term ’employee,’” the ruling stated. “For instance, one may be an employee for general liability purposes but not for retirement purposes,” the ruling continued, adding that the analysis is difficult to apply since the Court did not tell us which definition of “employee” to use.
“The Court’s test between ’employee’ and ‘independent contractor’ is problematic from the start since the statute in issue, Section 25-41-7(4)(a), does not include either term. Nevertheless, the Court’s opinion is law, and the Ethics Commission is bound to follow it,” the ruling stated.
The Ethics Commission concluded that when the board entered the executive session to discuss Crow’s employment, it was acting squarely within the confines of the “personnel matters” exception.
“We appreciate the clarification,” Herald Editor David Howell said about the dismissal. “We also want to thank Water Valley Mayor Larry Hart, the Board of Aldermen and Crow. Despite this initial disagreement, we feel like they have judiciously adhered to the state’s Open Meetings Act,” Howell said.
Mississippi’s Open Meetings Act ensures that all public bodies, state and local, hold open meetings on public matters. The Ethics Commission is given authority to hold hearings and issue orders subsequent to complaints alleging violations of the Open Meetings Act.
