Miss. Admin. Code tit. 21 | Miss. Admin. Code Title 21 — Law and Justice

MISSISSIPPI ETHICS COMMISSION MISSISSIPPI ETHICS COMMISSION

Part 201 Rules of the Mississippi Ethics Commission

21 Miss. Admin. Code Pt. 201 Rules of the Mississippi Ethics Commission

RULES OF THE MISSISSIPPI ETHICS COMMISSION

Title 21: Law and Justice Part 201; Chapter 1: Commission Meetings Rule 1.1; Timing and Notice. Meetings of the Mississippi Ethics Commission shall begin at 10:00 a.m. on the first Friday of each month and shall be held at the commission’s office in the City of Jackson unless the commission, either at a regular meeting or by specially calling a meeting, sets another time, date or place. Notice of all Commission meetings shall be posted on the home page of the Commission’s web site as soon as practicable. The chairman may cancel a meeting already scheduled or specially call a meeting. Notice of cancellation or of a specially called meeting shall be provided as soon as possible to all Commission members by whatever means of communication is available and practicable and most likely to reach each member under the circumstances. Notice is hereby provided that any Commission member may participate in any Commission meeting by teleconference or video means, in which event public access will be provided at the physical location of the meeting. The commission may pretermit any meeting. At all meetings the chairman, or in his or her absence the vice-chairman, shall preside and maintain decorum, ensuring the deliberate but expedient discharge of all business before the commission. In all meetings the commission will comply with and follow the requirements of the Open Meetings Act, codified in Title 25, Chapter 41, Miss. Code of 1972. Source: Section 25-4- 7 through 11, Miss. Code of 1972. Rule 1.2; Confidential Session. The commission shall hold confidential sessions on all matters designated as confidential by the Ethics in Government Law, codified in Title 25, Chapter 4, Miss. Code of 1972. Only commission members, commission staff members, attorneys for the commission, witnesses or other persons whose presence the commission deems necessary may attend confidential sessions. All other persons shall be excluded from the meeting area during confidential sessions. The commission and its staff shall keep separate minutes of confidential sessions which shall not be subject to disclosure. Source: Section 25-4- 23, Miss. Code of 1972. Part 201; Chapter 2: Public Records Requests Rule 2.1; Statement of Public Policy. “It is the policy of the Legislature that public records must be available for inspection by any person unless otherwise provided by this act. Furthermore,

providing access to public records is a duty of each public body and automation of public records must not erode the right of access to those records.” Section 25-61-1, Miss. Code of 1972. “[A]ll public records are hereby declared to be public property, and any person shall have the right to inspect, copy or mechanically reproduce or obtain a reproduction of any public record of a public body in accordance with reasonable written procedures adopted by the public body concerning the cost, time, place and method of access, and public notice of the procedures shall be given by the public body.” Section 25-61-5, Miss. Code of 1972. The act defines "public record" to include any "all books, records, papers, accounts, letters, maps, photographs, films, cards, tapes, recordings or reproductions thereof, and any other documentary materials, regardless of physical form or characteristics, having been used, being in use, or prepared, possessed or retained for use in the conduct, transaction or performance of any business, transaction, work, duty or function of any public body, or required to be maintained by any public body.” Section 25-61-3(b). The purpose of these rules is to establish the procedures the Mississippi Ethics Commission will follow in order to provide full access to public records. These rules provide information to persons wishing to request access to public records of the Mississippi Ethics Commission and establish processes for both requestors and the Mississippi Ethics Commission staff that are designed to best assist members of the public in obtaining such access. The purpose of the act is to provide the public full access to public records concerning the conduct of government. The act and these rules will be interpreted in favor of disclosure. In carrying out its responsibilities under the act, the Mississippi Ethics Commission will be guided by the provisions of the act describing its purposes and interpretation. Source: Sections 25-61-1, 25-61-5 and 25-61-3(b), Miss. Code of 1972. Rule 2.2; Public body description - Contact information - Public records officer. The Mississippi Ethics Commission interprets and enforces the Ethics in Government Law (Sections 25-4- 1 through 25-4-119, Miss. Code of 1972.), the Open Meetings Act (Sections 25-41-1 through 25-41-17, Miss. Code of 1972.) and the Public Records Act (Sections 25-61-1 through 25-61-17, Miss. Code of 1972.). The Mississippi Ethics Commission’s office is located at 660 North Street, Suite 100-C, Jackson, MS 39202. The Mississippi Ethics Commission’s mailing address is P. O. Box 22746, Jackson, MS 39225-2746. The telephone number is 601-359-1285, and the telecopier number is 601-359-1292. The email address and web address are info@ethics.state.ms.us and www.ethics.state.ms.us . Any person wishing to request access to public records of the Mississippi Ethics Commission or seeking assistance in making such a request should contact the public records officer of the Mississippi Ethics Commission by addressing the request to the “Public Records Officer, Executive Director or Assistant Director.” The subject line or cover sheet of a written request should include the phrase “Request for Public Records.” Information is also available at the Ethics Commission’s web site listed above.

The public records officer will oversee compliance with the act but another Ethics Commission staff member may process the request. Therefore, these rules will refer to the public records officer "or designee." The public records officer or designee and the Ethics Commission will provide the "fullest assistance" to requestors; ensure that public records are protected from damage or disorganization; and prevent fulfilling public records requests from causing excessive interference with essential functions of the Ethics Commission. Source: Section 25-61-5, Miss. Code of 1972. Rule 2.3; Availability of public records. Hours for inspection of records. Public records are available for inspection and copying during normal business hours of the Ethics Commission, Monday through Friday, 8:00 a.m. to 5:00 p.m., excluding legal holidays. Records must be inspected at the offices of the Ethics Commission. The time, place and manner of inspection and copying of records will not be allowed to interfere with other essential duties of the Ethics Commission. A. Records index. Indexes of public records are available for use by members of the public, including indexes of Advisory Opinions, Statements of Economic Interest, Public Records Opinions and Open Meetings decisions, all of which may be accessed on-line at the web site address listed above. B. Organization of records. The Ethics Commission will maintain its records in a reasonably organized manner. The Ethics Commission will take reasonable actions to protect records from damage and disorganization. A requestor shall not take Ethics Commission records from Ethics Commission offices. A variety of records is available on the Ethics Commission web site. Requestors are encouraged to view the documents available on the web site prior to submitting a records request. C. Making a request for public records. Any person wishing to inspect or copy public records of the Ethics Commission should make the request in writing on a request form (if one is provided), or by letter, fax, or e-mail addressed to the public records officer and including the following information: Name of requestor; Address of requestor; Other contact information, including telephone number and any e-mail address; Identification of the public records adequate for the public records officer or designee to locate the records; and t he date and time of day of the request. If the requestor wishes to have copies of the records made instead of simply inspecting them, he or she should so indicate and make arrangements to pay for copies of the records or a deposit. Pursuant to these rules, standard photocopies will be provided at fifteen cents ($0.15) per page. The public records officer or designee may accept requests for public records that contain the above information by telephone or in person. If the public records officer or designee accepts such a request, he or she will confirm receipt of the information and the substance of the request in writing. Source: Section 25-61-5, Miss. Code of 1972.

Rule 2.4; Processing of public records requests – General. A. Providing access. The Ethics Commission acknowledges that “providing access to public records is a duty” and that “any person shall have the right to inspect, copy or mechanically reproduce or obtain a reproduction of any public record” in accordance with these policies. Sections 25-61-1 and 25-61-5. The public records officer or designee will process requests in the order allowing the most requests to be processed in the most efficient manner. B. Acknowledging receipt of request. Within five business days of receipt of the request, the public records officer will do one or more of the following: (1) Make the records available for inspection or copying; (2) If copies are requested and payment of a deposit for the copies, if any, is made or terms of payment are agreed upon, send the copies to the requestor; (3) Provide a reasonable estimate of when records will be available; or (4) If the request is unclear or does not sufficiently identify the requested records, request clarification from the requestor. (Such clarification may be requested and provided by telephone. The public records officer or designee may revise the estimate of when records will be available); or (5) Deny the request. C. Consequences of failure to respond. If the Ethics Commission does not respond in writing within five business days of receipt of the request for disclosure, the requestor should consider contacting the public records officer to determine the reason for the failure to respond. D. Protecting rights of others. In the event that the requested records contain information that may affect rights of others and may be exempt from disclosure, the public records officer may, prior to providing the records, give notice to such others whose rights may be affected by the disclosure. Such notice should be given so as to make it possible for those other persons to contact the requestor and ask him or her to revise the request, or, if necessary, seek an order from a court to prevent or limit the disclosure. The notice to the affected persons will include a copy of the request. E. Records exempt from disclosure. Some records are exempt from disclosure, in whole or in part. If the Ethics Commission believes that a record is exempt from disclosure and should be withheld, the public records officer will state the specific exemption and provide a brief explanation of why the record or a portion of the record is being withheld. If only a portion of a record is exempt from disclosure, but the remainder is not exempt, the public records officer will redact the exempt portions, provide the nonexempt portions, and indicate to the requestor why portions of the record are being redacted. Source: Section 25-61-5, Miss. Code of 1972. Rule 2.5; Inspection of records. Consistent with other demands, the Ethics Commission shall promptly provide space to inspect public records. No member of the public may remove a document from the viewing area or disassemble or alter any document. The requestor shall indicate which documents he or she wishes the public body to copy.

The requestor must claim or review the assembled records within thirty days of the Ethics Commission’s notification to him or her that the records are available for inspection or copying. The Ethics Commission will notify the requestor in writing of this requirement and inform the requestor that he or she should contact the public body to make arrangements to claim or review the records. If the requestor or a representative of the requestor fails to claim or review the records within the thirty-day period or make other arrangements, the Ethics Commission may close the request and refile the assembled records. Other public records requests can be processed ahead of a subsequent request by the same person for the same or almost identical records, which can be processed as a new request. A. Providing copies of records. After inspection is complete, the public records officer or designee shall make the requested copies or arrange for copying. B. Providing records in installments. When the request is for a large number of records, the public records officer or designee will provide access for inspection and copying in installments, if he or she reasonably determines that it would be practical to provide the records in that way. If, within thirty days, the requestor fails to inspect the entire set of records or one or more of the installments, the public records officer or designee may stop searching for the remaining records and close the request. C. Completion of inspection. When the inspection of the requested records is complete and all requested copies are provided, the public records officer or designee will indicate that the Ethics Commission has completed a diligent search for the requested records and made any located nonexempt records available for inspection. D. Closing withdrawn or abandoned request. When the requestor either withdraws the request or fails to fulfill his or her obligations to inspect the records or pay the deposit or final payment for the requested copies, the public records officer will close the request and indicate to the requestor that the Ethics Commission has closed the request. E. Later discovered documents. If, after the Ethics Commission has informed the requestor that it has provided all available records, the Ethics Commission becomes aware of additional responsive documents existing at the time of the request, it will promptly inform the requestor of the additional documents and provide them on an expedited basis. Source: Section 25-61-5, Miss. Code of 1972. Rule 2.6; Processing of public records requests – Electronic records. Providing electronic records. When a requestor requests records in an electronic format, the public records officer will provide the nonexempt records or portions of such records that are reasonably locatable in an electronic format that is used by the public body and is generally commercially available, or in a format that is reasonably translatable from the format in which the public body keeps the record. Costs for providing electronic records are governed elsewhere in these rules.

Customized access to data bases. With the consent of the requestor, the Ethics Commission may provide customized access if the record is not reasonably locatable or not reasonably translatable into the format requested. The Ethics Commission may charge the actual cost for such customized access. Source: Section 25-61-5, Miss. Code of 1972. Rule 2.7; Exemptions. The Public Records Act, as well as other statues and court decisions, provide that a number of types of documents are exempt from public inspection and copying. In addition, other statutes or rules of law, such as various privacy restrictions, may prohibit disclosure. Requestors should be aware of the following exemptions outside the Public Records Act, that restrict the availability of some documents held by Ethics Commission for inspection and copying: A. Confidentiality of Ethics Opinions, Complaints and Investigative Materials; Sections 25- 4- 17(i) and (j) and 25-4-23, Miss. Code of 1972. B. Attorney work product and attorney client privilege; Section 25-1- 102. C. Individual tax records in possession of public body; Section 27-3- 77. D. Personnel files; Section 25-1- 100.

Source: Section 25-61-5, Miss. Code of 1972. Rule 2.8; Third Party Information. When any person files or submits documents with the Ethics Commission which the filer contends are exempt from disclosure under the Public Records Act, the filer shall provide a written statement at the time of filing which shall describe the documents filed and which shall fully explain why the documents are designated as exempt from disclosure and must specifically cite any statute or other legal authority in support of such designation. Such written statement shall itself be a public record subject to disclosure. Any document filed with the Ethics Commission which contains trade secrets or confidential commercial or financial information subject to the protection of any applicable law or court decision shall be clearly designated as such by the filer on its face and accompanying cover letter at the time of filing and shall be placed in an envelope other than white. Each page of each document shall be marked confidential. Upon request to inspect or copy any document so designated, the Ethics Commission shall notify the person who filed the document of the request. Thirty (30) days after such notice, the document will be made available for public inspection or copying unless the filer shall have obtained a court order protecting such records as confidential pursuant to Section 25-61-9, Miss. Code of 1972. Any person filing documents with the Ethics Commission shall, prior to filing, redact from the documents any social security numbers, account numbers or dates of birth not required to be listed. The Ethics Commission shall determine on a case-by-case basis whether similar information may be redacted by the filer to prevent identity theft. In no event will the Ethics Commission bear any responsibility for a filer’s failure to redact such information which leads to or may lead to identity theft or other crime or loss. Source: Section 25-61-5, Miss. Code of 1972.

Rule 2.9; Costs of providing public records. The Ethics Commission may require payment in advance for all costs before providing copies or access to records. A. Costs for paper copies. A requestor may obtain standard black and white photocopies for fifteen cents (15¢) per page. Before beginning to make the copies, the requestor must pre-pay all reasonably estimated costs of copying all the records selected by the requestor. The public records officer or designee may also require the payment of the remainder of the copying costs of a previous installment before providing a subsequent installment. The Ethics Commission will not charge sales tax when it makes copies of public records. B. Costs for electronic records. The cost of electronic copies of records shall be one dollar ($1) per disk for information on a CD-ROM. The cost of scanning existing Ethics Commission paper or other non-electronic records is five cents (5¢) per page. There will be no charge for e-mailing electronic records to a requestor, unless another cost applies such as a scanning fee or system costs allowed under Section 25-61-7(2), Miss. Code of 1972. C. Costs of mailing. The Ethics Commission may also charge actual costs of mailing, including the cost of the shipping container. D. Payment. Payment may be made by check or money order payable to the Ethics Commission. Cash will not be accepted. E. Charges for searching, reviewing and redacting. The actual cost of searching for and reviewing and, if necessary, redacting exempt information from public records shall be based upon the hourly rate of compensation for the lowest paid agency employee qualified to perform the task, which shall be multiplied by the actual time to complete the task. Source: Section 25-61-5, Miss. Code of 1972. Rule 2.10; Review of denials of public records. Petition for internal administrative review of denial of access. Any person who objects to the initial denial or partial denial of a records request may petition in writing (including e-mail) to the public records officer for a review of that decision. The petition must include a copy of or reasonably identify the written statement by the public records officer or designee denying the request. A. Consideration of petition for review. The executive director or assistant director of the Ethics Commission will promptly consider the petition and either affirm or reverse the denial within two business days following the Ethics Commission’s receipt of the petition, or within such other time as the executive director or assistant director and the requestor mutually agree. B. Review by the Ethics Commission. Pursuant to Section 25-61-13, if the public records officer or other staff of the Ethics Commission denies a requestor access to public records, the requestor may ask the Ethics Commission to review the matter by filing a written request for review.

C. Judicial review. Any person whose request for public records was denied by the Ethics Commission may institute a suit in the chancery court for the First Judicial District of Hinds County, seeking to reverse the denial, as set forth in Section 25-61- 13. Source: Section 25-61-5, Miss. Code of 1972. Part 201; Chapter 3: Lobbying Appeals Rule 3.1; Purpose. The purpose of this chapter is to set forth guidelines by which the Ethics Commission hearings on appeals by a Lobbyist or a Lobbyist’s Client of civil penalties assessed by the Secretary of State’s Office will be conducted and for preparing a record of said hearings. The following procedures will be followed by the Ethics Commission members and staff in conducting appeals by a Lobbyist or a Lobbyist’s Client of civil penalties assessed by the Secretary of State’s Office and for preparing a record of said hearings. Source: Section 5-8- 17, Miss. Code of 1972. Rule 3.2; Pre-hearing phase. The executive director of the Ethics Commission shall schedule a hearing upon receipt of a sworn application of a lobbyist or lobbyist’s client from the Secretary of State’s Office. The executive director shall fix a time and place for a hearing and shall serve upon the parties written notice specifying the civil penalties that have been assessed against the lobbyist or lobbyist’s client and notice of the time and place of the hearing at least twenty (20) calendar days prior to the hearing date. The hearing shall be set for a date which is at least fourteen (14) days prior to the anticipated date of a regular monthly meeting of the Ethics Commission. The notice may be served by mailing a copy thereof by certified mail, postage prepaid, to the last known business address of the lobbyist or lobbyist’s client. The Ethics Commission shall through its executive director, or his or her designee, issue subpoenas for attendance of witnesses and the production of books and papers at such hearing. The lobbyist or lobbyist’s client shall receive notice, included with the written notice of the hearing date, to provide a list of witnesses and/or books and papers to be presented during the hearing and if the Ethics Commission is being requested to issue subpoenas for same. The lobbyist or lobbyist’s client shall bear the cost of all witnesses and books and papers required by the lobbyist or lobbyist’s client. The Secretary of State, or his designee, shall be notified to present that office’s position on the assessment of the civil penalties, to provide a list of witnesses and/or the production of books and papers supporting that office’s position and if the Ethics Commission is being requested to issue subpoenas for same. The Secretary of State’s Office shall bear the cost of all witnesses and books and papers required by that office. The Ethics Commission’s subpoenas shall be enforced by any court of competent jurisdiction of this state in the manner provided for the enforcement of attendance and testimony of witnesses in civil cases in the courts of this state. The Commission hereby appoints the executive director or his designee chosen from a list preapproved by the Commission as hearing officer to conduct the hearing and administer oaths as may be necessary for the proper conduct of the hearing. The hearing officer shall rule on all procedural matters during the hearing and shall be responsible for

order and decorum. The Ethics Commission shall determine what portion of the cost for a hearing officer the Secretary of State’s Office or the lobbyist or lobbyist’s client shall bear. The executive director of the Ethics Commission, or his or her designee, shall organize a pre- hearing conference to be attended by the hearing officer; the lobbyist or lobbyist’s client, and/or their attorneys; and the Secretary of State, or his designee. Source: Section 5-8- 17, Miss. Code of 1972. Rule 3.3; Hearing phase. The hearing officer shall preside over the hearing; administer oaths; rule on procedural matters; and, maintain order and decorum. Ethics Commission members may attend the hearing to listen to all testimony and other evidence presented. The Ethics Commission shall determine what portion of the cost of a court reporter and, if necessary, one (1) transcript for the use by the Ethics Commission the Secretary of State’s Office or the lobbyist or lobbyist’s client shall bear. The Ethics Commission shall not be bound by strict rules of procedure or by the rules of evidence in the conduct of the proceedings. The hearing shall be open to the public. Source: Section 5-8- 17, Miss. Code of 1972. Rule 3.4; Post-hearing phase. After conclusion of the hearing, the commission or hearing officer shall reduce its decision to writing and forward a certified copy thereof to the last known address of the parties by way of United States first-class, certified mail, postage paid. The cost of the preparation of the record of the proceedings for purpose of an appeal from a decision of the Ethics Commission shall be assessed to and prepaid by the party filing the notice of appeal in accordance with the Uniform Rules of Circuit and County Court. Such cost shall be paid upon filing the notice of appeal pursuant to Rules 5.04 and 5.09 of the Uniform Rules of Circuit and County Court. Source: Section 5-8- 17, Miss. Code of 1972. Part 201; Chapter 4: Open Meetings Disputes Rule 4.1; Prehearing Phase. Upon receiving a complaint, the executive director shall forward a copy of the complaint, via certified mail, postage prepaid to the head of the public body against which the complaint has been made. The public body shall have fourteen (14) days from receipt of the complaint to file a response with the Commission. After receiving the response to the complaint or, if no response is received after fourteen (14) days, the Commission, in its discretion, may dismiss the complaint or proceed by setting a hearing in accordance with these rules and regulations. Source: Section 25-41-15, Miss. Code of 1972. Rule 4.2; Appointment and Authority of Hearing Officer. The Commission hereby appoints the Executive Director or his designee chosen from a list preapproved by the Commission as hearing

officer for all open meetings disputes within the Commission’s jurisdiction pursuant to Title 25, Chapter 41 of the Mississippi Code of 1972. The hearing officer has and shall exercise the power to regulate all proceedings in every hearing before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties under these regulations. The hearing officer may require production, through order or subpoena, of evidence upon all matters embraced in the open meetings dispute, including the production of all books, papers, vouchers, documents, and writings applicable thereto. The hearing officer shall have the power to administer oaths, examine witnesses in open meetings cases pending before the Commission, examine and report upon all matters referred to him. The hearing officer shall have the power to enter protective orders. The hearing officer shall have the power to direct the issuance of subpoenas for witnesses to attend before him or her to testify in the cause. If any witness shall fail to appear, the hearing officer shall proceed by process to compel the witness to attend and give evidence. The hearing officer may direct the parties to participate in a conference or conferences prior to the hearing on the merits, for such purposes as expediting the disposition of the action and facilitating resolution of the case. The hearing officer may issue rulings on scheduling matters, protective orders, admissibility of evidence, and other procedural or pre-hearing matters. The hearing officer may alter any of the time periods provided by these regulations, upon his own initiative or upon a motion by a party or other person affected for good cause shown. Source: Section 25-41-15, Miss. Code of 1972. Rule 4.3; Appearance through Counsel. Parties to proceedings governed by this rule may appear personally or through an attorney, except that a party must personally attend any hearing on the merits unless his attendance has been waived, in writing, by the hearing officer. When a party has appeared through an attorney, service of all notices, motions, orders, decisions and other papers shall thereafter be made upon the attorney, unless the party requests otherwise in writing. When a party is represented by an attorney, the attorney shall sign all motions, oppositions, notices, requests, and other papers on behalf of the party, including any request for issuance of subpoena Source: Section 25-41-15, Miss. Code of 1972. Rule 4.4; Pre-Hearing Conference/Scheduling. The hearing officer may enter a scheduling order, or any such other order, that sets deadlines, conferences or hearings deemed necessary or appropriate by the hearing officer. Oral argument will not normally be granted. However, the hearing officer may grant oral argument on any motion in his sole discretion. Source: Section 25-41-15, Miss. Code of 1972. Rule 4.5; Subpoenas requested by parties. The hearing officer shall have the power to issue subpoenas for testimony or documents. Subpoenas may be issued to parties upon request, but only for the following purposes:

(A) To compel a non-party witness to appear and give oral testimony at any hearing scheduled under these regulations; or (B) To compel any person to appear at the hearing on the merits of the case, to give testimony, or to produce documents or other tangible things. Subpoenas requested by a party shall be submitted to the hearing officer on a form approved by the Commission. Concurrently with the submission of the subpoena to the hearing officer, the requesting party shall serve a copy on all of the parties to the proceeding and shall file proof of such service with the Commission and the hearing officer. Subpoenas shall not be issued in blank. A subpoena submitted for issuance must contain the title and number of the case, the name of the person to whom it will be directed, the date, time and place of hearing, and the name and signature of the requesting party or his attorney. A subpoena duces tecum must, in addition, contain a complete description of specific documents or other tangible things that the witness will be required to produce at the hearing. Unless the witness agrees otherwise, a subpoena issued for the purposes provided in these rules must be served by the requesting party at least ten (10) calendar days prior to the hearing. A subpoena will be issued during the hearing or on less than ten (10) days’ notice only upon order of the hearing officer for reasonable cause shown by the requesting party. Source: Section 25-41-15, Miss. Code of 1972. Rule 4.6; Preliminary Report and Recommendation by Hearing Officer. Prior to a hearing on the merits, the hearing officer may prepare a preliminary report and recommendation, including, if appropriate, proposed findings of fact and conclusions of law, based upon the record available to the hearing officer. The hearing officer shall file the preliminary report and recommendation with the Commission and distribute it to the Commission members by electronic mail. If within forty-eight (48) hours of sending the preliminary report and recommendation, no Commission member asks that it be held for further consideration, then the hearing officer shall serve a copy of the preliminary report and recommendation on all parties. If within forty-eight (48) hours of sending the preliminary report and recommendation one or more Commission members does ask that it be held for further consideration, then the hearing officer shall present the preliminary report and recommendation to the Commission at its next meeting, at which the Commission can either accept the preliminary report and recommendation or reject it and set the matter for hearing. If the hearing officer serves a preliminary report and recommendation on the parties, the hearing officer shall also provide the parties with written notice of a proposed hearing date in the event either party objects to the preliminary report and recommendation as provided below. Within five (5) business days of receiving a copy of the preliminary report and recommendation, any party may file specific written objections to the preliminary report and recommendation. Failure to file such objection waives that party’s right to a hearing on the merits. Upon receiving such objection, the hearing officer shall set the hearing on the merits for the date proposed in the notice of proposed hearing date previously mailed to the parties or some other date agreed to by the parties. After the hearing on the merits, the hearing officer shall prepare a final report and recommendation. However, nothing contained in these rules shall require the hearing officer to

set a hearing on the merits for a complaint in which the hearing officer recommends dismissal or in which there are no facts in dispute. If no objection to the preliminary report and recommendation is received within the time provided above, the hearing officer shall prepare a final report and recommendation or, in the hearing officer’s discretion, set the matter for a hearing on the merits for the date proposed in the notice of proposed hearing date or some other date agreed to by the parties. If the hearing officer sets the matter for a hearing on the merits, the hearing officer shall prepare a final report and recommendation after such hearing. The hearing officer shall submit the final report and recommendation to the Commission and present it to the Commission at its next regularly scheduled meeting. The Commission can enter a final order dismissing the case, modifying the report and recommendation, or adopting the report and recommendation, or the Commission can enter an order remanding the case for further hearing. Source: Section 25-41-15, Miss. Code of 1972. Rule 4.7; Conduct of Hearings. Hearings shall be informal, and the Miss. Rules of Evidence while applicable, shall be relaxed. Nothing contained herein shall prohibit the hearing officer from entering orders or making rulings which provide for the orderly conduct of said hearings. The hearing officer may limit the issues to be heard during any hearing. The hearing officer may also make rulings concerning any matters which do not involve a disputed issue of fact without setting a hearing concerning same. Continuances will not be granted except for good cause shown. Source: Section 25-41-15, Miss. Code of 1972. Rule 4.8; Recommendation of the Hearing Officer and Decision of the Commission. All findings of fact made by the hearing officer or the Commission shall be based upon the preponderance of the evidence. The hearing officer shall reduce all recommendations to writing and submit those recommendations to the Commission as described herein. Source: Section 25-41-15, Miss. Code of 1972. Rule 4.9; Post-Hearing Phase. The cost of the preparation of the record of the proceedings for purpose of an appeal from the decision of the Ethics Commission shall be assessed to the party filing the appeal. Source: Section 25-41-15, Miss. Code of 1972. Part 201; Chapter 5: Public Records Opinions Rule 5.1; Requests for Public Records Opinions. As set forth in Section 25-61-13, Miss. Code of 1972, any person denied the right to inspect or copy public records may request an opinion of the Ethics Commission as to whether the public body is obligated to produce the records requested. The person shall attach to the request for opinion a copy of his or her written records request and the written denial of his or her records request, if any.

Source: Section 25-61-13, Miss. Code of 1972. Rule 5.2; Responses to Requests for Public Records Opinions. Upon receipt of the request, the executive secretary shall forward a copy of the request and any attached documents to the public official who denied the records request or failed to respond to it, as well as to the head of the public body involved, if they are separate persons. The public body shall have fourteen (14) days from receipt of the documents to file a response with the Ethics Commission. The response shall be in writing and shall include a copy of the written public records rules, policies or procedures previously adopted by the responding public body. The response shall also include a copy of any correspondence between the requestor and responding public body as well as any index or other writing or record provided to the requestor by the public body. Source: Section 25-61-13, Miss. Code of 1972. Rule 5.3; Issuance of Public Records Opinions. Whenever a dispute exists regarding access to public records, any confidentiality, privilege or exemption claimed by the responding public body or regarding any fees charged by the public body for the disclosure of public records, the burden of proof shall lie with the public body to demonstrate by clear and convincing evidence or applicable legal authority that its actions were reasonable, lawful and justified under the circumstances. In the absence of such proof, the Ethics Commission shall presume the records were denied or costs calculated in violation of the Public Records Act. After receiving the response to the request for opinion or after fourteen (14) days, whichever comes first, the executive director or his designee shall present a draft opinion to the Ethics Commission at its next meeting if enough information is available on which to base an opinion. At that meeting or a future meeting, the commission shall issue an opinion. Source: Section 25-61-13, Miss. Code of 1972. Rule 5.4; Mediation of Public Records Disputes. In keeping with Section 25-61-13(1)(b)(ii), Miss. Code of 1972, the executive director or his designee are hereby authorized to mediate any dispute arising under the Mississippi Public Records Act. Source: Section 25-61-13, Miss. Code of 1972. Part 201; Chapter 6: Ethics Hearings Rule 6.1; Prehearing Phase. Upon a finding that probable cause exists to believe a violation of law has occurred, the commission shall set a hearing on the matter and shall cause a written notice of the time and place of the hearing to be served upon the respondent at least sixty (60) calendar days prior to the hearing date. A finding of probable cause shall constitute removal of the statutory confidentiality imposed by Sections 25-4- 21 and 25-4- 23, as authorized in Section 25-4- 17(g), Miss. Code of 1972. The executive director shall cause a copy of the written notice to be served on the respondent by personal service or by mailing a copy thereof by certified mail, postage prepaid, to the last known business address of the respondent or his or her attorney. Source: Sections 25-4- 15, 25-4- 17 and 25-4-107, Miss. Code of 1972.

Rule 6.2; Appointment and Authority of Hearing Officer. The commission may appoint a hearing officer to rule on procedural matters, issue subpoenas, conduct any hearing, administer oaths as may be necessary for the proper conduct of the hearing, or such other matters as ordered by the Commission. The hearing officer may direct the parties to participate in a conference or conferences before the hearing on the merits, for such purposes as expediting the disposition of the action and facilitating resolution of the case. The hearing officer may issue rulings on discovery issues, scheduling matters, protective orders, admissibility of evidence, and other procedural or pre-hearing matters. Source: Sections 25-4- 15, 25-4- 17 and 25-4-107, Miss. Code of 1972. Rule 6.3; Ex Parte Communications. Neither a respondent nor his or her representative shall communicate with the hearing officer directly or indirectly in connection with any issue of fact or law related to a proceeding pending before the Commission, except upon notice and opportunity to all parties to participate. The hearing officer may, with the consent of the parties, confer separately with the parties and/or their lawyers in an effort to mediate or settle a pending matter. This rule shall not preclude: (A) The hearing officer from consulting with Commission counsel concerning any matter before the Commission; or (B) A party or his representative from conferring with the hearing officer or Commission counsel concerning procedural matters that do not involve issues of fact or law related to the proceeding. Source: Sections 25-4- 15, 25-4- 17 and 25-4-107, Miss. Code of 1972. Rule 6.4; Appearance through Counsel. Parties may appear personally or through an attorney, except that a party must personally attend any hearing on the merits unless his attendance has been waived, in writing, by the hearing officer. When a party has appeared through an attorney, service of all notices, motions, orders, decisions and other papers shall thereafter be made upon the attorney, unless the party requests otherwise in writing. When a party is represented by an attorney, the attorney shall sign all motions, oppositions, notices, requests, and other papers on behalf of the party, including any request for issuance of subpoenas. Source: Sections 25-4- 15, 25-4- 17 and 25-4-107, Miss. Code of 1972. Rule 6.5; Pre-Hearing Conference/Scheduling. The hearing officer may enter a scheduling order that sets deadlines, conferences or hearings, deemed necessary or appropriate. The hearing officer may rule on any motion without consulting the parties and without granting oral argument. Source: Sections 25-4- 15, 25-4- 17 and 25-4-107, Miss. Code of 1972. Rule 6.6; Discovery. Subject to the exceptions set forth below, if either party requests discovery, the party opposite must disclose and permit the requesting party to inspect, copy, test, and

photograph upon written request and without the necessity of an order by the hearing officer the following which is in the possession, custody, or control of the party opposite, the existence of which is known or by the exercise of due diligence may become known to the party opposite: A. Names and addresses of all witnesses in chief proposed to be offered by the party at trial, together with a copy of the contents of any statement, written, recorded or otherwise preserved of each such witness and the substance of any oral statement made by any such witness; B. Copy of any written or recorded statement of the respondent and the substance of any oral statement made by the respondent; C. Copy of the criminal record of the respondent, if proposed to be used to impeach; D. Any reports, statements, or opinions of experts, written, recorded or otherwise preserved, made in connection with the particular case and the substance of any oral statement made by any such expert; E. Any physical evidence and photographs relevant to the case or which may be offered in evidence; and F. Any exculpatory material concerning the respondent. The hearing officer may limit or deny disclosure authorized herein if he or she finds that there is a substantial risk to any person of physical harm, intimidation, economic reprisals, or unnecessary annoyance or embarrassment, resulting from such disclosure, which outweighs any usefulness of the disclosure to the requesting party. Disclosure shall not be required of legal research or of records, correspondence, reports, or memoranda which contain the opinions, theories, or conclusions of either party’s attorneys or members of legal staff. Both the commission and the respondent have a duty to timely supplement discovery. If, subsequent to compliance with these rules or orders pursuant thereto, a party discovers additional material or information which is subject to disclosure, that party shall promptly notify the other party or the other party's attorney of the existence of such additional material, and if the additional material or information is discovered during a hearing, the hearing officer shall also be notified. The attorney receiving materials on discovery is responsible for those materials and shall not distribute them to third parties. Upon a showing of cause, the hearing officer may at any time order that specified disclosures be restricted or deferred, or make such other order as is appropriate, provided that all material and information to which a party is entitled must be disclosed in time to permit the party's attorney to make beneficial use thereof. When some parts of certain material are discoverable under these rules, and other parts are not discoverable, as much of the material should be disclosed as is consistent with the rules. Material excised or redacted pursuant to judicial order or order of the hearing officer shall be sealed and preserved in the records of the hearing officer, to be made available to the circuit court in the event of an appeal.

In the event there are matters arguably within the scope of a party's discovery request or an order for discovery, and the opposing party is of the opinion that the requesting party is not entitled to discovery of same, the opposing party shall, as soon as is reasonably practicable, file with the hearing officer a written statement describing the nature of the information or the materials at issue as fully as is reasonably possible without disclosure of same and stating the grounds for objection to disclosure. Subject to the limitations otherwise provided in these rules, determinations such as whether the matters requested in discovery are relevant to the case, exculpatory, possible instruments of impeachment, and the like, may be made only by the party requesting or to receive the discovery. Upon request of any person, the hearing officer may permit any showing of cause for denial or regulation of disclosures, or portion of such showing, to be made in camera. A record shall be made of such proceedings. If the hearing officer enters an order granting relief following a hearing in camera, the entire record of such hearing shall be sealed and preserved in the records of the hearing officer, to be made available to the circuit court in the event of an appeal. If at any time prior to a hearing on the merits it is brought to the attention of the hearing officer that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the hearing officer may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, or enter such other order as he or she deems just under the circumstances. If during the course of a hearing on the merits, either party attempts to introduce evidence which has not been timely disclosed to the opposing party as required by these rules, and the opposing party objects to the introduction for that reason, the hearing officer shall act as follows: A. Grant the opposing party a reasonable opportunity to interview the newly discovered witness, to examine the newly produced documents, photographs or other evidence; and B. If, after such opportunity, the opposing party claims unfair surprise or undue prejudice and seeks a continuance or mistrial, the hearing officer shall, in the interest of justice and absent unusual circumstances, exclude the evidence or grant a continuance for a period of time reasonably necessary for the opposing party to meet the non-disclosed evidence. The hearing officer shall not be required to grant a continuance for such a discovery violation if the party attempting to introduce such evidence withdraws its efforts to introduce the evidence. Willful violation by an attorney or party of an applicable discovery rule or an order issued pursuant thereto may subject the attorney or party to appropriate sanctions by the hearing officer. Source: Sections 25-4- 15, 25-4- 17 and 25-4-107, Miss. Code of 1972. Rule 6.7; Subpoenas. Pursuant to the commission’s authority granted in Section 25-4- 19, Miss. Code of 1972, the hearing officer shall issue subpoenas, including subpoenas duces tecum, upon the request of a party, in accordance with these rules. Subpoenas may be issued only for the following purposes:

(A) To compel a non-party witness to appear and give oral testimony at any hearing scheduled under these regulations; or (B) To compel any person to appear at the hearing on the merits of the case, to give testimony, or to produce documents or other tangible things. Subpoenas shall be submitted to the hearing officer for issuance on a form approved by the Commission. Concurrently with the submission of the subpoena to the hearing officer, the requesting party shall serve a copy on all of the parties to the proceeding and shall file proof of such service with the hearing officer. All subpoenas issued shall be filed with the commission. Subpoenas shall not be issued in blank. A subpoena submitted for issuance must contain the title and number of the case, the name of the person to whom it will be directed, the date, time and place of hearing or deposition, and the name and signature of the requesting party or his attorney. A subpoena duces tecum must, in addition, contain a complete description of specific documents or other tangible things that the witness will be required to produce at the hearing. Unless the witness agrees otherwise, a subpoena issued for the purposes provided in this rule must be served by the requesting party at least ten (10) calendar days prior to the hearing. A subpoena will be issued during the hearing or on less than ten (10) days’ notice only upon order of the hearing officer for reasonable cause shown by the requesting party. Proof of service shall be filed with the commission. Source: Sections 25-4- 15, 25-4- 17 and 25-4-107, Miss. Code of 1972. Rule 6.8; Protective Orders. Pursuant to the commission’s authority granted in Section 25-4- 19, upon motion by a party or by a person to whom a subpoena is directed, or from whom documents or testimony is sought, the hearing officer may enter a protective order quashing or modifying the subpoena for good cause shown. Source: Sections 25-4- 15, 25-4- 17 and 25-4-107, Miss. Code of 1972. Rule 6.9; Motions. All motions shall be in writing, unless made during a hearing. A motion shall state with particularity the grounds therefore, shall be supported by a memorandum of authorities, and shall set forth the relief or order sought. Every written motion shall be filed with the hearing officer and served by the moving party upon the opposing party or as the hearing officer directs. An opposing party shall have ten (10) calendar days after service of the motion within which to file and serve a memorandum of authorities in opposition to the motion. The moving party shall have five (5) calendar days after service of the opposing memorandum to serve and file a reply memorandum of authorities if he so desires. If a motion or opposition is served by mail, three (3) calendar days shall be added to the time periods specified herein for response. The failure of a moving party to file a memorandum of authorities in support of a motion shall constitute consent to the denial of the motion. The failure of an opposing party to file a memorandum of points and authorities in opposition to any motion shall constitute consent to the granting of the motion.

Source: Sections 25-4- 15, 25-4- 17 and 25-4-107, Miss. Code of 1972. Rule 6.10; Conduct of Hearings. Pursuant to Section 25-4- 107, Miss. Code of 1972, hearings shall be conducted according to the Mississippi Rules of Civil Procedure and the Mississippi Rules of Evidence. The Mississippi Rules of Civil Procedure applicable to these hearings are Rules 42, 43, 50, 52 and 53. Other Mississippi Rules of Civil Procedure do not apply to these hearings. The following procedures will apply when appropriate: A. The respondent will be allowed to present and argue any legal objections to the complaint set forth in the answer; the commission staff may thereupon present its answering argument; and thereafter the respondent may present rebuttal argument. The matter will then be submitted to the hearing officer for decision. The hearing officer may rule upon such objections immediately or take the matter under advisement and proceed with the hearing. B. The commission staff will present its opening statement on the merits. The respondent will then be permitted to make an opening statement of the defense, or he may reserve the same until commencement of the presentation of the defense. C. The commission staff will then present its case in chief in support of the complaint. D. Upon conclusion of the commission staff’s case in chief, the respondent may move for dismissal of the complaint. The hearing officer may hear arguments on the motion, or may grant, deny, or reserve decision thereon, with or without argument. E. If no motion to dismiss is made, or if such motion is denied or decision reserved thereon, the respondent shall thereupon present the case for the defense. F. Upon conclusion of the respondent’s case, the commission staff may present its case in rebuttal. G. Upon conclusion of the commission staff’s case in rebuttal, the commission staff shall present its closing argument, the respondent may present answering argument, and thereafter the commission staff may present rebuttal argument. Thereupon the matter will stand submitted for decision. H. The hearing officer may ask questions of witnesses, and may request or allow additional evidence at any time, including additional rebuttal evidence. Source: Sections 25-4- 15, 25-4- 17 and 25-4-107, Miss. Code of 1972. Rule 6.11; Failure or Refusal to Testify. If a respondent fails to testify in his own behalf or asserts a claim of privilege with respect to any question propounded to him, the hearing officer may infer therefrom that such testimony or answer would have been adverse to his case.

If any person controlling, controlled by, or under common control with, or employed by, or an agent of, a respondent fails to respond to a subpoena, or asserts a claim of privilege with respect to any question propounded to him, the hearing officer may, taking into account all of the circumstances, infer that such testimony would have been adverse to the respondent. Source: Sections 25-4- 15, 25-4- 17 and 25-4-107, Miss. Code of 1972. Rule 6.12; Continuances. Continuances shall not be granted by the hearing officer except for good cause shown. Source: Sections 25-4- 15, 25-4- 17 and 25-4-107, Miss. Code of 1972. Rule 6.13; Defaults. Failure of a respondent to appear personally at a hearing on the merits without having obtained a waiver of appearance, shall constitute an admission of all matters and facts alleged against such respondent, and shall be deemed a waiver of the right to an evidentiary hearing. In such cases the hearing officer may take action based upon such admission or upon any other evidence, including affidavits, and without any further notices whatever to the respondent. Source: Sections 25-4- 15, 25-4- 17 and 25-4-107, Miss. Code of 1972. Rule 6.14; Recommendation of the Hearing Officer and Decision of the Commission. All findings of fact made by the hearing officer shall be based upon clear and convincing evidence. The hearing officer shall reduce his recommendations to writing and submit those recommendations to the Commission. The hearing officer shall include written recommendations regarding penalties, if any. The hearing officer shall appear before the Commission upon request to participate in deliberation required to render a decision on the merits. The Commission can enter a final order dismissing the case, modifying the report and recommendation, or adopting the report and recommendation, or the Commission can enter an order remanding the case for further hearing. Source: Sections 25-4- 15, 25-4- 17 and 25-4-107, Miss. Code of 1972. Rule 6.15; Post-hearing phase. After conclusion of the hearing, the commission or any hearing officer appointed hereunder shall reduce its decision to writing and forward a certified copy thereof to the last known address of the respondent, the complainant and the executive director by way of United States first-class, certified mail, postage paid. The cost of the preparation of the record of the proceedings for purpose of an appeal from a decision of the Ethics Commission shall be assessed to and prepaid by the party filing the notice of appeal in accordance with the Uniform Rules of Circuit and County Court. Such cost shall be paid upon filing the notice of appeal pursuant to Rules 5.04 and 5.09 of the Uniform Rules of Circuit and County Court. Source: Sections 25-4- 15, 25-4- 17 and 25-4-107, Miss. Code of 1972.

Part 201; Chapter 7: Written Opinions of the Executive Director

Rule 7.1; Effect of Opinions. As set forth in Section 25-4- 17, Miss. Code of 1972, any written

opinion of the executive director shall be based upon prior opinions issued by the commission or

reported court decisions of Mississippi courts, are not binding on the commission, shall not be

published, and shall be ratified or rejected by the commission at the next subsequent meeting of

the commission.

If the commission ratifies the opinion, the requestor shall not be liable for funds described in the

request for opinion, and the requestor shall enjoy the immunity from liability set forth elsewhere

in Section 25-4- 17. If the commission rejects the opinion, the requestor shall not be liable for

funds described in the request for opinion that are paid before receipt of notice that the opinion

had been rejected by the commission.

Source: Section 25-4- 17, Miss. Code of 1972.

Rule 7.2; Limitations of Opinions. The executive director is hereby authorized to issue written

opinions as set forth in Section 25-4- 17, Miss. Code of 1972, and in these rules. The executive

director may issue written opinions, in his discretion, when the circumstances presented by the

requestor are such that awaiting an opinion by the commission

would impose an undue inconvenience upon the requestor or
could result in a violation of law.

The executive director may not issue written opinions regarding past action. Any request for a

written opinion of the executive director must be submitted in writing in a manner which

satisfies the executive director that the person submitting the request is in fact the same person he

or she purports to be and that the person submitting the request is seeking advice on his or her

own behalf or on behalf of another person with that other person’s permission.

A request for a written opinion of the executive director may only be submitted by or on behalf

of a “public servant,” as defined in Section 25-4-103, Miss. Code of 1972, someone who may be

a public servant or someone who is considering candidacy, appointment or employment as a

public servant.

Within ninety-six hours of ratification or rejection of the opinion of the executive director, the

commission’s staff shall transmit written notification to the requestor regarding the nature of the

commission’s action on the opinion. The commission’s staff shall keep a complete, indexed

record of all opinions issued by the executive director.

Source: Section 25-4- 17, Miss. Code of 1972.

Part 201 Chapter 8: Rulemaking Oral Proceedings

Rule 8.1; Application of Chapter. This chapter applies to all oral proceedings held for the

purpose of providing the public with an opportunity to make oral presentations or written input

on proposed new rules, amendments to rules, and proposed repeal of existing rules before the

Ethics Commission (hereinafter referred to as “commission”) pursuant to the Administrative

Procedures Act.

Source: Section 25-43-2.105, Miss. Code of 1972.

Rule 8.2; Request for Oral Proceeding. When a political subdivision, an agency, or a citizen

requests an oral proceeding in regards to a proposed rule adoption, the requestor must submit a

printed, typewritten, or legibly handwritten request.

Each request must be submitted on 8-1/2” x 11” white paper.
The request may be in the form of a letter addressed to the commission or in the form

of a pleading as if filed with a court.

C. Each request must include the full name, telephone numbers, and mailing address of

the requestor(s).

D. All requests shall be signed by the person filing the request, unless represented by an

attorney, in which case the attorney may sign the request.

Source: Section 25-43-2.105, Miss. Code of 1972.

Rule 8.3; Notice of Oral Proceeding. Notice of the date, time, and place of all oral proceedings

shall be filed with the Secretary of State’s Office for publication in the Administrative Bulletin.

The agency providing the notice shall provide notice of oral proceedings to each requestor. The

oral proceedings will be scheduled no earlier than twenty (20) days from the filing of the notice

with the Secretary of State. The Executive Director of the Ethics Commission, or designee who

is familiar with the substance of the proposed rule, shall preside at the oral proceeding on a

proposed rule.

Source: Section 25-43-2.105, Miss. Code of 1972.

Rule 8.4; Public Participation Guidelines. Public participation shall be permitted at oral

proceedings in accordance with the following:

A. At an oral proceeding on a proposed rule, persons may make statements and present

documentary and physical submissions concerning the proposed rule.

B. Persons wishing to make oral presentations at such a proceeding shall notify the

commission at least three business days prior to the proceeding and indicate the

general subject of their presentations. The presiding officer in his or her discretion

may allow individuals to participate that have not contacted the commission prior to

the proceeding.

C. At the proceeding, those who participate shall indicate their names and addresses,

identify any persons or organizations they may represent, and provide any other

information relating to their participation deemed appropriate by the presiding officer.

D. The presiding officer may place time limitations on individual presentations to assure the orderly and expeditious conduct of the oral proceeding. To encourage joint presentations and to avoid repetition, additional time may be provided for persons whose presentations represent the views of other individuals as well as their own views. E. Persons making presentations are encouraged to avoid restating matters that have already been submitted in writing. Written materials may, however, be submitted at the oral proceeding. F. Where time permits and to facilitate the exchange of information, the presiding officer may open the floor to questions or general discussion. The presiding officer may question participants and permit the questioning of participants by other participants about any matter relating to that rule-making proceeding, including any prior written submissions made by those participants in that proceeding. No participant shall be required to answer any question. Source: Section 25-43-2.105, Miss. Code of 1972. Rule 8.5; Submissions and Records. Physical and Documentary Submissions presented by participants in an oral proceeding shall be submitted to the presiding officer. Such submissions become the property of the commission, part of the rulemaking record, and are subject to the commission’s public records request procedure. The commission may record oral proceedings by stenographic or electronic means. Source: Section 25-43-2.105, Miss. Code of 1972. Part 201 Chapter 9: Organization of the Ethics Commission Rule 9.1; Ethics Commission Responsibilities. The Ethics Commission administers and enforces the Ethics in Government Law, codified as Sections 25-4- 1 through 25-4- 119, Miss. Code of 1972, and related authorities. The Commission’s three primary roles within the Ethics Law are to receive Statements of Economic Interest for filing by public officials and candidates, and make the completed forms available for public inspection; to process sworn complaints and investigate alleged violations of law by public servants; and to issue written advisory opinions to public servants regarding the conflict of interest laws. The Ethics Commission also enforces the Open Meetings Act, issues decisions on the Public Records Act and handles administrative appeals taken under the Lobbying Law Reform Act of 1994. Source: Sections 25-4- 1 through 25-4-119, Section 25-41-15, Section 25-61-13 and Section 5-8- 17, Miss. Code of 1972. Rule 9.2; Ethics Commission Organization. The commission shall annually elect one (1) member to serve as chairman of the commission, one (1) member to serve as vice chairman and one (1) member to serve as secretary. The vice chairman shall act as chairman in the absence or upon the disability of the chairman or in the event of a vacancy of the office of the chairman. Five (5) members of the commission shall constitute a quorum. Five (5) members of the commission shall vote in the affirmative before any official action can be taken by the

commission. Execution of such official action may be delegated to the chairman or executive director of the commission. The commission shall appoint an executive director to serve at the pleasure of the commission. The executive director shall possess a high degree of professional competence and integrity. The executive director shall be responsible for the administrative operations of the commission and shall perform other such duties within its powers as may be delegated or assigned from time to time by regulations or orders of the commission. The commission, by and through its executive director, may employ the personnel necessary to properly discharge the duties and responsibilities of the commission, subject to budgetary limitations. Such personnel shall possess a high degree of professional competence and integrity in the area in which employed. Source: Sections 25-4- 9, 25-4- 11 and 25-4-15, Miss. Code of 1972. Rule 9.3; Contact Information. Contact information for the Ethics Commission is provided at www.ethics.state.ms.us. Source: Section 25-43-2.104, Miss. Code of 1972.

TORT CLAIMS BOARD TORT CLAIMS BOARD

Part 301 Mississippi Tort Claims Board Rules

21 Miss. Admin. Code Pt. 301, R. 1.1 Purpose Rule 1.2 Organization Rule 1.3 Obtaining Information

Chapter 2 Informal Proceedings Available to the Public

21 Miss. Admin. Code Pt. 301, R. 2.1 Purpose Rule 2.2 MTCB Proceedings

Chapter 3 Public Hearings

21 Miss. Admin. Code Pt. 301, R. 3.1 Rule 3.1

Purpose Rule 3.2 Requirements for Public Hearings Rule 3.3 Location of Public Hearings Rule 3.4 Conducting Public Hearings Rule 3.5 Public Availability of Public Hearings

Chapter 4 Declaratory Opinions

21 Miss. Admin. Code Pt. 301, R. 4.1 Rule 4.1

Purpose Rule 4.2 General Rule 4.3 Persons Who May Request Declaratory Opinions Rule 4.4 Subjects Which May be Addressed in Declaratory Opinions Rule 4.5 Circumstances in Which Declaratory Opinions Will Not Be Issued Rule 4.6 Form of the Request for a Declaratory Opinion Rule 4.7 Time for MTCB’s Response Rule 4.8 Public Availability of Requests and Declaratory Opinions

Chapter 5 Availability of MTCB Orders

21 Miss. Admin. Code Pt. 301, R. 5.1 Procedures and Authority

Chapter 6 By-Laws of Mississippi Tort Claims Board

21 Miss. Admin. Code Pt. 301, R. 6.1 Officers and Meetings Rule 6.2 Committees

Chapter 7 Public Access to Records

21 Miss. Admin. Code Pt. 301, R. 7.1 Fees

Chapter 8 Regulations for Political Subdivisions

21 Miss. Admin. Code Pt. 301, R. 8.1 Insurance Requirements

Chapter 9 Mississippi Tort Claims Board Application Regulations for Political Subdivisions

21 Miss. Admin. Code Pt. 301, R. 9.1 Insurance Requirements for Political Subdivisions

Chapter 10 Guidelines for the Purchase of Excess Liability Insurance by a State Agency

21 Miss. Admin. Code Pt. 301, R. 10.1 Excess Liability Coverage

Chapter 11 Additional Exclusions for State Plan

21 Miss. Admin. Code Pt. 301, R. 11.1 Exclusions from State Plan

Chapter 12 Hearings

21 Miss. Admin. Code Pt. 301, R. 12.1 Rule 12.1 Rules

Chapter 13 Exemptions and Exceptions

21 Miss. Admin. Code Pt. 301, R. 13.1 Authority

Chapter 14 Disposal of Salvage

21 Miss. Admin. Code Pt. 301, R. 14.1 Method

Chapter 15 Mediation

21 Miss. Admin. Code Pt. 301, R. 15.1 Authority

Chapter 16 Position Statement on Single Occurrence Jurisdiction

21 Miss. Admin. Code Pt. 301, R. 16.1 Statement

Chapter 17 Board’s Authority to Seek Judicial Enforcement

21 Miss. Admin. Code Pt. 301, R. 17.1 Authority

TITLE 21 LAW AND JUSTICE

21 Miss. Admin. Code Pt. 301, R. 1.1 Purpose

The purpose of this rule is to describe the organization of the Mississippi Tort State Board (hereafter referred to as MTCB) and how the public may obtain information from the Board as required by Section 25-43-2.104 (a) of the Mississippi Code of 1972, as amended.

History

Source: Miss. Code Ann. §§ 25-43-2.104(a); 11-46-19(q)

21 Miss. Admin. Code Pt. 301, R. 1.2 Organization

This rule establishes a description of the MTCB’S organization which states the general course and method of its operations, including how the public may obtain information or make submissions/requests to the MTCB.

History

Source: Miss. Code Ann. §§ 25-43-2.104(a); 11-46-19(q)

21 Miss. Admin. Code Pt. 301, R. 1.3 Obtaining Information

The public may obtain a description of the MTCB’S organization from the Guidelines and Regulations of the MTCB currently on file with the Secretary of State. Additionally, the public may access information relevant to the MTCB at their website www.dfa.state.ms.us, or by reviewing Sections 11-46-1 et seq., of the Mississippi Code of 1972, as amended, which may be accessed at www.state.ms.us. The public may also request information, make submissions or requests including Mississippi Open Records Act requests by contacting the MTCB Administrator at Post Office Box 267, Jackson, MS, 39205. See also Chapter 07 Public Access to Records.

History

Source: Miss. Code Ann. §§ 25-43-2.104(a); 11-46-19(q)

21 Miss. Admin. Code Pt. 301, R. 2.1 Purpose

The Purpose of this rule is to inform the public of all informal proceedings available to the public as required by Section 25-43-2.104 (b) of the Mississippi Code of 1972, as amended.

History

Source: Miss. Code Ann. §§ 25-43-2.104(b); 11-46-19(q)

21 Miss. Admin. Code Pt. 301, R. 2.2 MTCB Proceedings

This rule establishes information on all MTCB proceedings.

A. All information as to the rules of practice concerning all formal and informal proceedings is available by reviewing the rules and regulations of the MTCB currently on file with the Secretary of State. Further information may be obtained by reviewing the MTCB website at www.dfa.state.ms.us, or by reviewing Sections 11-46-1 et seq., of the Mississippi Code of 1972, as amended, which may be accessed at www.state.ms.us.

B. The MTCB generally meets the 2 nd Thursday of every other month at 1:30 P.M. at the Woolfolk State Office Building, 501 North West Street, Jackson, MS 39201. Other meetings may be called by the Board as necessary.

History

Source: Miss. Code Ann. §§ 25-43-2.104(b); 11-46-19(q)

21 Miss. Admin. Code Pt. 301, R. 3.1 Purpose

These sections set forth MTCB’S procedures for involving the public in the development of rules through public meetings and/or public hearings as required by Mississippi Code § 25-43-3.104.

History

Source: Miss. Code Ann. §§ 25-43-31.04; 11-46-19(q)

21 Miss. Admin. Code Pt. 301, R. 3.2 Requirements for Public Hearings

A. At the time a Rule is filed with Secretary of State, the Administrator must also publish where written submissions or written requests for an opportunity to make oral presentations on the proposed rule may be inspected or submitted.

B. A public hearing is required if, during the first 20 business days of the rule notice, a written request for a public hearing is received from one of the following:

a political subdivision
an agency, or
10 persons

C. If a public hearing is required, the Administrator will establish the time, date and location for the public hearing. The Administrator shall then:

Ensure that the public hearing is not scheduled earlier than 23 business days after filing notice of oral proceeding with SOS.
File notice of the time, date, and location of the public hearing with the Secretary of State.
Within three (3) days of filing notice with SOS, Administrator must mail or electronically transmit a copy of the notice to those who are on the notification list (their preference); MTCB can charge for mail but not electronic transmissions.

History

Source: Miss. Code Ann. §§ 25-43-2.104(b); 11-46-19(q)

21 Miss. Admin. Code Pt. 301, R. 3.3 Location of Public Hearings

A. Public hearings shall be held at a place and time generally convenient for persons affected by the rule.

History

Source: Miss. Code Ann. §§ 25-43-2.104(b); 11-46-19(q)

21 Miss. Admin. Code Pt. 301, R. 3.4 Conducting Public Hearings

A. Public Hearings must be open to the public . B. The Administrator will preside at the proceeding.

C. The Administrator may issue rules for conduct of oral proceedings.

History

Source: Miss. Code Ann. §§ 25-43-2.104(b); 11-46-19(q)

21 Miss. Admin. Code Pt. 301, R. 3.5 Public Availability of Public Hearings

A. A verbatim written transcript of the oral proceedings at each public hearing shall be produced by the Administrator. B. This material will be available for public inspection and copying as part of the Rule-Making Record.

History

Source: Miss. Code Ann. §§ 25-43-2.104(b); 11-46-19(q)

21 Miss. Admin. Code Pt. 301, R. 4.1 Purpose

These sections set forth the MTCB’S procedures regarding the requests for Declaratory Opinions, as required by § 25-43-2.103 of the Mississippi Code of 1972, as amended.

History

Source: Miss. Code Ann. §§ 25-43-2.103; 11-46-19(q)

21 Miss. Admin. Code Pt. 301, R. 4.2 General

Declaratory Opinions will be prepared by the Administrator and approved by the Tort Claims Board.

History

Source: Miss. Code Ann. §§ 25-43-2.103; 11-46-19(q)

21 Miss. Admin. Code Pt. 301, R. 4.3 Persons Who May Request Declaratory Opinions

Any person with a substantial

interest in the subject matter may request the MTCB for a declaratory opinion by following the specified procedures.

History

Source: Miss. Code Ann. §§ 25-43-2.103; 11-46-19(q)

21 Miss. Admin. Code Pt. 301, R. 4.4 Subjects Which May be Addressed in Declaratory Opinions

A. The MTCB will issue declaratory opinions regarding the applicability to specified facts of:

A statue administered or enforceable by the MTCB,
A rule promulgated by the MTCB, or
An order issued by the MTCB.

B. The MCTB will not issue a declaratory opinion regarding a statute, rule or order which is beyond the primary jurisdiction of the MTCB.

C. “Primary jurisdiction of the agency” means:

The agency has a constitutional grant of authority in the subject matter,
The agency has a statutory grant of authority in the subject matter,
The agency has issued specific regulations impacting on the subject matter, or
The agency has issued a specific order or orders impacting on the subject matter.

History

Source: Miss. Code Ann. §§ 25-43-2.103; 11-46-19(q)

21 Miss. Admin. Code Pt. 301, R. 4.5 Circumstances in Which Declaratory Opinions Will Not Be Issued

A. The MTCB may, for good cause, refuse to issue a declaratory opinion. Without limiting the generality of the foregoing, the circumstances in which declaratory opinions will not be issued include, but are not necessarily limited to:

The matter is outside the jurisdiction of the MTCB;
Lack of clarity concerning the question presented;
There is pending or anticipated litigation, administrative action, or other adjudication; 4. The statute, rule, or order on which a declaratory opinion is sought is clear and not in need of interpretation to answer the question presented by the request;
The facts presented in the request are not sufficient to answer the question presented;
The request fails to contain information required by these rules or the requestor failed to follow the procedure set forth in these rules;
The request seeks to resolve issues which have become moot, or are abstract or hypothetical such that the requestor is not substantially affected by the rule, statue or order on which a declaratory opinion is sought;
No controversy exists concerning the issue as the requestor is not faced with existing facts or those certain to arise which raise a question concerning the application of the statute, rule, or order;
The question presented by the request concerns the legal or constitutional validity of a statute, rule or order;
The requestor has not suffered an injury or threatened injury fairly traceable to the application of the statute, rule or order;
No clear answer is determinable;
The question presented by the request involves the application of a criminal statute or sets for facts which may constitute a crime;
The answer to the question presented would require the disclosure of information which is privileged or otherwise protected by law from disclosure;
The question is currently the subject of an Attorney General's opinion request;
The question has been answered by an Attorney General's opinion;
The request is not made in good faith; or
The request is harassing in nature or for any other unlawful purposes.

B. A declaratory opinion will not be issued where a similar request is pending before this agency or any other agency or a proceeding is pending on the same subject matter before any agency, administrative or judicial tribunal, or where such an opinion would constitute the unauthorized practice of law.

C. A declaratory opinion will not be issued if it may adversely affect the interests of the State, the MTCB or any of their officers or employees in any litigation which is pending or may reasonably be expected to arise.

D. A declaratory opinion shall not be binding or effective for any third party or person other than the MTCB and the person to whom the opinion is issued and shall not be used as precedent for any other transaction or occurrence beyond that set forth by the requesting person.

E. Where a request for a declaratory opinion involves a question of law, the MTCB may refer the matter to the State Attorney General.

History

Source: Miss. Code Ann. §§ 25-43-2.103; 11-46-19(q)

21 Miss. Admin. Code Pt. 301, R. 4.6 Form of the Request for a Declaratory Opinion

A. Written Requests Required. Each request must be printed or typewritten, or must be in legible handwriting. Each request must be submitted on standard business letter-size paper (8-1/2 inches by 11 inches). Requests may be in the form of a letter addressed to the MTCB or in the form of a pleading as might be addressed to a court.

B. Where to Send Request. All requests must be mailed or delivered to the MTCB Administrator. The request and its envelope shall clearly state that it is a request for a declaratory opinion. Oral and telephone requests are unacceptable.

C. Name, Address and Signature of Requestor. Each request must include the full name, telephone number, and mailing address of the requestor. All requests shall be signed by the person filing the request, unless represented by an attorney, in which case the attorney may sign the request. The signing party shall attest that the request complies with the requirements set forth in these rules, including but not limited to a full, complete, and accurate statement of relevant facts and that there are no related proceedings pending before any agency, administrative or judicial tribunal.

D. Single transaction. A request must be limited to a single transaction or occurrence.

E. Question Presented. Each request shall contain the following:

A clear identification of the statute, rule, or order at issue;
A concise statement of the issue or question presented for the declaratory opinion;
A full, complete, and accurate statement of all facts relevant to a resolution of the question presented;
The identity of all other known persons involved in or impacted by the factual situation causing the request including their relationship to the facts; their name, mailing address and telephone number;
A statement sufficient to show that the person seeking relief is substantially affected by the rule.

F. The terms of the proposed opinion suggested by the requestor may be submitted with the request or may be requested by the agency;

G. Memorandum of Authorities. A request may contain an argument by the requestor in support terms of the proposed opinion suggested by the requestor. The argument may be submitted in the form of a memorandum of authorities, containing a full discussion of the reasons, including any legal authorities, in support of such position of the requestor. The agency may request that argument and memorandum of authorities be submitted by any interested party.

History

Source: Miss. Code Ann. §§ 25-43-2.103; 11-46-19(q)

21 Miss. Admin. Code Pt. 301, R. 4.7 Time for MTCB’S Response

A. MTCB’S Response. Within forty-five (45) days after the receipt of a request for a declaratory opinion which complies with the requirements of these rules, the MTCB shall in writing:

Issue an opinion declaring the applicability of the specified statute, rule, or order to the specified circumstances;
Decline to issue a declaratory opinion, stating the reasons for its action; or
Agree to issue a declaratory opinion or a written statement declining to issue a declaratory opinion by a specified time but no later than ninety (90) days after receipt of the written request.

B. When Period Begins to Run. The forty-five (45) day period shall begin running on the first State of Mississippi business day that the request is received in the offices of the MTCB.

History

Source: Miss. Code Ann. §§ 25-43-2.103; 11-46-19(q)

21 Miss. Admin. Code Pt. 301, R. 4.8 Public Availability of Requests and Declaratory Opinions

A. The Administrator will make declaratory opinions and requests for declaratory opinions available for public inspection and copying at the expense of the viewer during normal business hours. All declaratory opinions and requests shall be indexed by name and subject. Declaratory

opinions and requests which contain information which is exempted from disclosure under the Mississippi Public Records Act or is otherwise confidential by law shall be exempt from this requirement.

Part 301 Chapter 5 Availability of MTCB Orders

21 Miss. Admin. Code Pt. 301, R. 5.1 Procedures and Authority

These sections set forth the procedures for making the MTCB Orders available to the public as required by § 25-42-2.102 of the Mississippi Code of 1972, as amended.

A. The Administrator shall be responsible for making them available for public inspection and copying indexed by name and subject. This is subject to any confidentiality provisions established by law.

B. The written final order can’t be precedent to the detriment of any person by the MTCB until it has been made available for public inspection & indexed.

This is inapplicable to any person who has actual timely knowledge of the order;
The burden of proof is on the MTCB.

History

Source: Miss. Code Ann. §§ 25-43-2.102; 11-46-19(q)

21 Miss. Admin. Code Pt. 301, R. 6.1 Officers and Meetings

A. Officers and Authority: The presiding officer of the Board shall be a Chairman appointed by the Governor subject to the advice and consent of the Senate to serve at the will and pleasure of the Governor. A Vice-Chairman shall be elected by the membership of the board by majority vote at the annual meeting of the board to serve for a term of one year. The Chairman shall preside at all meetings and shall have such authority and shall perform such duties as provided by, or may be reasonably inferred from, statutory provision, these by-laws or as may be determined and conferred by a resolution of the board not inconsistent with the laws of this state or these by-laws. The Vice-Chairman shall be authorized to preside in the absence or incapacity of the Chairman.

The six (6) ex officio members of the Board are: the Director of the Department of Environmental Quality, the Commissioner of Insurance; the Director of the Department of Finance and Administration; the Attorney General; the Commissioner of Public Safety; and the State Treasurer.

B. Annual Meetings: There shall be an annual meeting of the Board held each year in the offices of the Department of Finance and Administration on the first Thursday of June, unless notice of the meeting to be held shall designate another place and time.

C. Regular Meetings: The Board may authorize such other regular meetings as may be desired by resolution upon its minutes designating the time, date, and place of such regular meetings.

D. Special Meetings: Extraordinary meetings of the Board may be held upon call of the Chairman or upon petition of any four (4) members of the Board should the Chairman refuse to call a meeting. Such meetings may be held at any time or place upon five (5) days written notice preceding the date of such meeting. The written notice shall state the place, date, and hour of said meeting and the purpose for which the meeting is called. Said notice shall be delivered or mailed to each member of the Board at his or her regular mailing address.

E. Quorum: A quorum for the transaction of any business of the Board shall consist of an absolute majority of all the members of record of the Board. A quorum is necessary for any annual, regular or special meeting of the Board, and when a quorum is not present at any such meeting, a majority of the members present may adjourn the meeting to a time and place without the necessity of further notice to the members.

F. Executive Director: The Director of the Department of Finance and Administration shall serve as the Executive Director of the Board and shall be authorized to conduct the administrative affairs of the Board. The Board is authorized to employ on a fulltime basis a staff attorney who shall possess at a minimum the qualifications required to be a member of the Mississippi Bar, and such other staff as it may deem necessary to carry out the purposes of the tort claims statutes; the employees in the positions approved by the Board shall be hired by the Executive Director, shall be employees of the Department of Finance and Administration, and shall be compensated from the Tort Claims Fund. Upon recommendation of the Executive Director the Board shall define the duties and fix the compensation of such employees. The Executive Director shall execute all contracts and other instruments in writing on behalf of the Board which have been duly authorized by the Board. The Executive Director shall be charged with the duty of taking and preserving the official minutes of the meetings of the Board and shall provide copies of the proposed minutes to the members in advance of the next regular meeting. In addition, the Executive Director shall perform such other duties and functions as are incident to the office and not inconsistent with these by-laws.

G. Rules of Order: The most recent edition of Robert's Rules of Order shall serve as the rules of order for the Board.

H. Proxies: To the extent allowed under Mississippi law, a member of the Board may designate a proxy representative to act for such member in such member's absence, and the vote of such proxy representative shall be counted as the vote of such absent member.

History

Source: Miss. Code Ann. §§ 11-46-18; 11-46-19

21 Miss. Admin. Code Pt. 301, R. 6.2 Committees

A. Standing and Special Committees: The Board shall authorize such committees as it may desire and shall designate whether the same are standing or special. The Authority shall

specify the jurisdiction and scope of such standing committees by resolution upon the minutes. Special committees may be created by resolution which shall specify the special purpose and function of said committees.

Appointments: Standing committees will continue to function from year to year. The Chairman shall make appointments to all standing committees at the annual meeting of the Board. Upon the creation of special committees or standing committees, initial appointments to committees shall be made by the Chairman as soon thereafter as may be convenient.
Committee Minutes: All committees shall keep minutes of their proceedings which shall be submitted to the Board at its next regular or special meeting.

B. Amendments. These by-laws may be amended at any regular annual meeting of the Board without previous notice of any kind whatsoever, or at any regular or special meeting provided that notice is given setting out the subject matter and substance of the proposed amendments, such notice to be given in the manner provided herein for notice of special meetings. Amendments shall require the approval of an absolute majority of the entire member of the Board.

History

Source: Miss. Code Ann. §§ 11-46-18; 11-46-19

21 Miss. Admin. Code Pt. 301, R. 7.1 Fees

The Board shall collect fees for searching, reviewing and/or duplicating public records, together with the cost of mailing, if applicable. The amount charged shall be determined by estimating to the nearest quarter hour the time required for the Administrative Secretary to search, review and/or duplicate the public records and applying the rate of $4 per quarter hour to such estimated time. The actual estimated cost of reproducing ($.45 per page), and the expense of mailing, if any, shall be added to the time charge. The total estimated cost shall be paid in advance of complying with the request for public records.

A. After payment of the cost has been made, the Tort Claims Board shall mail or deliver the records to the applying person no later than 10 working days from the date of such payment.

B. The Tort Claims Board shall notify any applicant in writing if the request to be denied due to exemption of the records from disclosure by virtue of state law. The notification of denial shall be mailed or delivered to the applicant no later than 10 working days after tender of the cost has been made. The cost paid to the Board shall be returned to the applicant.

History

Source: Miss. Code Ann. §§ 11-46-19(q); 25-61-1, et seq.

21 Miss. Admin. Code Pt. 301, R. 8.1 Insurance Requirements

Pursuant to Section 11-46-17(3), Mississippi Code of 1972, as amended, the Tort Claims Board adopts the following regulations respecting the policy

or policies of insurance, the requirements for self-insurance reserves, the requirements for pooling agreements and contracts between and among political subdivisions, or combinations of such insurance, reserves and pooling agreements. Approval of the Board shall be conditioned upon fulfilling the requirements of those regulations.

A. Statutory Exclusions: The insurance plan may contain any or all of the exclusions, exemptions or defenses set forth in Section 11-46-9, Mississippi Code of 1972, as amended, or in any other provision of state law. If the plan intends to incorporate such exclusions, etc., it shall specifically do so.

B. Additional Exclusions: The Board determines that the following additional exclusions or limitations may be incorporated into the plan or policies of insurance for political subdivisions:

Insofar as they are applicable to the state and political subdivisions and are not contrary to Mississippi state statutes or case law, the Board adopts and approves the exclusions and limitations contained in the current version of the ISO Commercial General Liability Form (1988), and the Business Auto Liability Policy CA0001, 11/88 Edition.

C. Reserves and Retentions: Self-insurance reserves and/or aggregate retentions may be approved by the Board, but must comply with the following requirements:

Amount: Amount of reserve or retention shall be established based on actuarial estimates for a self-insured or pool of similar size and risk exposure.
Trust Indenture: The political subdivision shall enter into an agreement with the Tort Claims Board that a Trust Account shall be established with a state depository. The agreement shall provide that only tort claim settlements or judgments, cost of legal defense, third party administrator fees and expenses, and the costs of regulation as determined by the Board shall be paid from the fund. All other related expenses, including liability claims not subject to the tort claims limitations of Section 11-46-1, et seq. of the Mississippi Code of 1972, as amended, shall not be expended from the trust account.
Audit by Independent Certified Public Accountancy Firm: An annual compliance audit on the operations and transactions affecting the trust account shall be required. The audit shall be conducted by a certified public accountancy firm and the cost paid by the self-insuring entity.
Actuarial Review: An annual actuarial review of reserve adequacy, claim patterns and loss history, with recommendations regarding the initial and annual contribution to the reserve, must be contracted for with an insurance consulting or actuarial firm. Such contract and the initial report and recommendations must accompany the application for approval. Such reports must be furnished to the Tort Claims Board annually.
Insurance Policies: All insurance policies constituting all or a portion of the insurance plan must name the Tort Claims Board as additional insured in order that the Board receives direct notification by the carrier of any policy cancellations or changes prior to annual renewal.
Annual Reapplication for Approval: The political subdivision shall annually reapply for approval of its self-insured plan or plan of aggregate retention. The information required shall be submitted 60 days before the end of the fiscal year. In the event the application is denied, the political subdivision shall be given 30 days to reapply.

D. Pooling Agreements: Pooling of liabilities between and among political subdivisions is authorized by Section 11-46-17(5), of the Mississippi Code of 1972, as amended, subject to the approval of the Board. The Board may require a pooling agreement to provide for adequate excess insurance coverage and umbrella insurance coverage. Pooling agreements shall also be subject to the requirements of Section 103 above.

E. The following categories of political subdivisions shall provide coverage for these types of tort risks:

Counties: Auto, general, public officials', and law enforcement liability,
Municipalities: Auto, general, public officials', and law enforcement liability.
School Districts: Auto, general, public officials' or directors and officers' (depending on whether the trustees are elected or appointed), athletic participation, and professional liability.
Community Hospitals: Auto, general, directors and officers', law enforcement, and professional liability.
Airport Authorities: Auto, general, hangar-keeper's, and directors and officers' liability.
Community Colleges: Auto, general, law enforcement, directors and officers', professional, athletic participation, and student nurses' professional liability.
Housing Authorities: Auto, general, and directors and officers' liability.
Library Systems: Auto, general, and directors and officers' liability.
Mental Health Services: Auto, general, directors and officers', and professional liability.
Soil and Water Conservation Districts: Auto and general liability.
Utility Districts. Gas Districts. and Sewer Districts: Auto, general, and directors and officers' liability.
Drainage Districts: Auto and general liability.
Economic Development Districts: Auto, general, and directors and officers' liability.
Fire Protection Districts: Auto and general liability.
Miscellaneous Political Subdivisions: Auto, general, and other liabilities depending on the specific political subdivision's function, authority, etc.

Part 301 Chapter 9 Mississippi Tort Claims Board Application Regulations for Political Subdivisions

History

Source: Miss. Code Ann. §§ 11-46-18; 11-46-19; 11-46-20

21 Miss. Admin. Code Pt. 301, R. 9.1 Insurance Requirements for Political Subdivisions

The Mississippi Tort Claims Board (the Board) was established pursuant to HB 417, Regular Session 1993, and Section 11-46-1 et seq. of the Mississippi Code of 1972, as amended. Section 11-46-17(3) requires that "All political subdivisions shall, from and after October 1, 1993, obtain such policy or policies of insurance, establish such self insurance reserves, or provide a combination of such insurance and reserves as necessary to cover all risks of claims and suits for which political subdivisions may be liable under this chapter; provided, except any political subdivision shall not be required to obtain pollution liability insurance. However, this shall not limit any cause if action against such political subdivision relative to limits of liability under the Tort Claims Act. Such policy or policies of insurance or such self insurance may contain any reasonable limitations or exclusions not contrary to Mississippi state statutes or case law as are normally included in commercial liability insurance policies generally available to political subdivisions. All such plans of insurance and/or reserves shall be submitted for approval to the Board. The Board shall issue a Certificate of Coverage to each political subdivision whose plan of insurance and/or reserves it approves in the same manner as provided in subsection (2) of this section. Whenever any political subdivision fails to obtain the Board's approval of any plan of insurance and/or reserves, the political subdivision shall act in accordance with the rules and regulations of

the Board and obtain a satisfactory plan of insurance and/or reserves to be approved by the board."

A. Purchase of Liability Insurance:

Any political subdivision purchasing a liability policy or policies shall purchase such policy only from an insurance company with a minimum Best rating of B+, or with a certification from the Department of Insurance, or a determination by the Tort Claims Board, that such insurance company has a sound financial condition. This paragraph shall not be construed as a delegation of authority by the Tort Claims Board to any person or entity, and the Tort Claims Board specifically reserves unto itself the authority to approve or disapprove such insurance company based on other appropriate criteria.
Minimum limits of such liability policies must meet or exceed the statutory limitations of liability as established by the Tort Claims Act.
All such policies must be presented to the board in the form of a copy of the declaration page of such policy or policies.
Each subdivision shall purchase such insurance and shall present same to the board for approval and issuance of a Certificate of Coverage.

B. Pooling of Two (2) or More Political Subdivisions:

For the purpose of purchasing one or more liability policies of insurance, all purchases shall be made only from an insurance company with a minimum Best rating of B+ or with a certification from the Department of Insurance that such insurance company has the financial condition equivalent to a minimum Best rating of B+. This paragraph shall not be construed as a delegation of authority by the Tort Claims Board to any person or entity, and the Tort Claims Board specifically reserves unto itself the authority to approve or disapprove such insurance company based on other appropriate criteria.
Minimum limits of liability purchased must meet or exceed the limitations of liability as established in the Tort Claims Act.
Any two (2) or more political subdivisions agreeing to form a pool and self-insure must submit to the Board plans for establishing adequate amounts to be reserved for payment of claims, amounts reserved to be allocated toward any expenses of the pool, and what funds shall be used to establish said reserves. Each political subdivision participating in said pool shall reveal any and all funds it plans to use to participate in the pool.
The Board must be furnished with an executed copy of the pooling agreement supported by appropriate resolutions or orders of the participating political

subdivisions. The pooling agreement shall reflect the rights and responsibilities of the participants. The agreement shall provide for insurance over and above the aggregate of the pool assets to minimize further risk to pool participants for additional contributions during the plan year. The first layer of coverage above the pool aggregate shall extend from the pool amount to Five Million Dollars ($5,000,000). If an umbrella coverage is deemed necessary by the Board, an additional amount of such coverage may be required.

C. A Political Subdivision Self-Insuring Alone:

A political subdivision choosing to self-insure must submit to the Board a plan to establish adequate amounts to be reserved for payment of claims against the political subdivision. Such plan shall reveal those funds to be used to establish reserves, how the self-insurance program shall be administered and how claims against the self-insured shall be paid, as well as expenses for administration, investigation, defense, etc., shall be paid. Any and all funds to be used to establish reserves for payment of claims and expenses must be revealed.
In addition to the reserves identified by the applicant, the self-insuring political subdivisions shall be required to obtain a first layer of insurance coverage above the aggregate amount of the reserve. Additional umbrella coverage may also be required in some cases. The amounts and types of such coverages shall be determined by the Board upon submission of application by the political subdivision on a case by case determination.

D. Submission of Plans for Approval:

All plans for purchasing insurance, formation of a pool by two (2) or more political subdivisions or a political subdivision choosing to self-insure must be submitted to "the Board for approval or rejection. If approved, a Certificate of Coverage shall be issued for the political subdivisions.
If a plan is rejected by the Board, or if any political subdivision fails to obtain approval of the Board of any plan of insurance and/or reserves, the political subdivision shall act in accordance with the rules and regulations of the Board and obtain a satisfactory plan of insurance and/or reserves to be approved by the Board.
The Board shall have the authority to pursue judicial enforcement of the requirements of Section 11-46-1 et seq. of the Mississippi Code of 1972, as amended and these regulations in any court of competent jurisdiction; and, take all other reasonable and necessary actions to carry out the powers and duties of the Board under Section 11-46-1 et seq. of the Mississippi Code of 1972, as amended and these regulations.

E. Combinations of Insurance Policies and Reserves: Any pool or self-insurance plan may contain a combination of insurance policies purchased and adequate reserves established for payment of claims. The plan must be submitted to the Board for approval and any such plan must comply with applicable of Sections 100 through 104 above.

F. Subrogation Rights: The Department of Finance and Administration shall have such subrogation rights as prescribed by the Act and Amendments thereof against third parties.

G. Address: All applications and communications should be submitted to:

Lee Ann McElroy, Administrator Mississippi Tort Claims Board P. O. Box 267 Jackson, MS 39205

Part 301 Chapter 10 Guidelines for the Purchase of Excess Liability Insurance by a State Agency

History

Source: Miss. Code Ann. §§ 11-46-18; 11-46-19; 11-46-20

21 Miss. Admin. Code Pt. 301, R. 10.1 Excess Liability Coverage

Section 11-46-17(4), Mississippi Code of 1972, as amended, provides: "Any governmental entity of the state may purchase liability insurance to cover claims in excess of the amounts provided for in Section 11-46-15 and may be sued by anyone in excess of the amounts provided for in Section 11-46-15 to the extent of such excess insurance carried; provided, however, that the immunity from suit above the amounts provided for in Section 11-46-15 shall be waived only to the extent of such excess liability insurance carried."

A. Every state agency is protected to the extent of the limitations of liability as provided in the Tort Claims Act. The decision to purchase excess coverage above the statutory limitations of liability is a policy decision of each individual agency. Approval of the Tort Claims Board is not required for purchase of excess coverage; however, the Tort Claims Board does suggest the following guidelines in purchasing any such excess coverage:

The statutory limitations of liability as provided in the Tort constitute primary coverage and are mandatory for every state agency.
The purchase of any excess coverage should be from an insurance company with a minimum Best rating of B+.
A copy of the declaration page of any excess policy should be provided to the Tort Claims Board as the Board must notify the Third Party Administrator of such excess coverage. The Third Party Administrator will notify any excess carrier of any claim that may exceed the statutory limitations of liability.
Each agency electing to purchase excess coverage shall submit to the Tort Claims Board, in writing, the reasons the agency believes it is necessary to have a greater amount of protection than that provided in the Tort Claims Act. All such reasons are to be submitted to the legislature annually.

Part 301 Chapter 11 Additional Exclusions for State Plan.

History

Source: Miss. Code Ann. §§ 11-46-18; 11-46-19; 11-46-20

21 Miss. Admin. Code Pt. 301, R. 11.1 Exclusions from State Plan

The Board adopts the exclusions and limitations contained in the current version of ISO Commercial General Liability Form (1988), and the Business Auto Liability Policy CA0001, 11/88 Edition, to be applicable to the Tort Claims Fund operated by the Board for state agencies.

Part 301 Chapter 12 Hearings.

History

Source: Miss. Code Ann. §§ 11-46-18; 11-46-19; 11-46-20

21 Miss. Admin. Code Pt. 301, R. 12.1 Rules

These rules shall govern hearings before the Board on the adequacy of a plan of coverage or any other issue.

A. The Board, in its discretion, may hold a hearing upon its own motion or upon the timely written request for a hearing by a state agency, political subdivision, or any other interested person.

B. The Board may hold, a hearing at any state of its deliberations, including:

As part of the initial consideration by the Board of a plan or other issue.
After such initial consideration, to receive supplemental information to aid the Board in making a determination.
After an adverse decision by the Board, to permit the aggrieved political subdivision or other interested person to submit additional information for use by the Board in reconsidering the adverse decision. Any such request for this type of hearing shall be made within twenty days after the adverse decision by the Board.

C. The Board shall fix the time and place of such hearing and shall notify all parties thereto.

D. The technical rules of evidence shall not be strictly followed. Any relevant evidence may be admitted, but the Chairman may limit or exclude testimony or documents that are redundant or irrelevant. All objections must be timely made or shall be waived.

E. The Board anticipates that in most hearings the party involved shall be a state agency, political subdivision, or an entity, such as a liability pool, representing one or more political subdivisions. The Board recognizes, however, that other persons may from time to time request

to appear at the hearings in opposition to the request of a political subdivision. The Board, in its discretion, may allow such a person to participate in the hearing, if the Board determines that the person has a substantial interest in the matter before the Board and that the person's participation would aid the Board in making a decision.

F. All witnesses shall testify under oath.

G. The hearing shall be recorded by a court reporter or other means capable of producing a record that may be used in any judicial appeal of a Board decision.

H. To expedite a hearing, the Chairman may:

Require each party to submit to the Board and to exchange with all other parties to the hearing, at least seven days prior to the hearing, a list of all witnesses the party plans to call at the hearing, a brief summary of each witness' expected testimony, and a copy of each document the party plans to introduce.
Place time limits on the length of the hearing and vary the amount of time provided in Sections 111 and 115 of this chapter for opening or closing statements.

I. Any party may be represented by counsel.

J. The Chairman shall conduct a fair, impartial, and orderly hearing. After opening the hearing, the Chairman shall:

State the matter to be considered.
Request all persons present at the hearing (other than Board members and staff), to identify themselves and their interest in the matter under consideration in the hearing.
Inform each party that any request that a Board member recuse himself or herself must be made at this point in the hearing or shall be waived.
Inform each party that any objection to the manner in which the hearing shall be recorded or to the person recording the hearing must be made at this point in the hearing or shall be waived.
If parties with adverse interest are present, inquire as to whether the parties wish to invoke the rule of sequestration.
Summarize the procedures to be followed in the hearing.

K. After the announcements by the Chairman, the Board may request the staff to state briefly its recommendation as to the action the Board should take.

L. Then the state agency, political subdivision, or other interested person requesting approval of a plan, reconsideration of a Board decision, or other action may make a brief opening statement not to exceed ten minutes. In addition, any interested person permitted to appear in opposition to the request may make a brief opening statement not to exceed ten minutes.

M. Following the opening statements, the state agency, political subdivision, or other interested person requesting an action by the Board may present evidence through direct testimony of witnesses and introduction of documents. Any interested person permitted to appear in opposition to the request may cross-examine such witnesses. The Chairman may allow redirect examination if he determines that such would be helpful to the Board Members of the Board may question witnesses at any time.

N. Any interested person permitted to appear in opposition to the request may present witnesses and introduce documents in the same procedure set forth in Section 112 of this chapter.

O. At the conclusion of the testimony and introduction of documents, the state agency, political subdivision, or other interested person requesting the action may make a brief closing statement not to exceed fifteen minutes. In addition, any interested person permitted to appear in opposition to the request may make a brief closing statement not to exceed twenty minutes. If an interested person appearing in opposition to the request makes a closing statement, the state agency, political subdivision, or other interested person requesting the action may offer a rebuttal not to exceed five minutes.

P. The Board may issue its decision after the closing statements or take the matter under advisement until a subsequent Board meeting. The Board shall spread its decision upon the minutes and shall notify the parties in writing of the decision.

Q. Notwithstanding any provision contained herein to the contrary, the Board, in its discretion, may appoint a hearing officer to preside at any hearing in the place and stead of the Chairman. In addition, the Board, in its discretion, may authorize the hearing officer to conduct any hearing without the Board being present and to submit to the Board findings of fact, conclusions of law, and recommendations. If the Board should appoint a hearing officer, then in that event every reference to "Chairman" in Chapter 12 Hearings shall refer instead to the hearing officer, and, pursuant to Section 110 of this chapter, each party shall have the opportunity to object to the hearing officer.

History

Source: Miss. Code Ann. §§ 11-46-18; 11-46-19; 11-46-20

21 Miss. Admin. Code Pt. 301, R. 13.1 Authority

Upon good cause shown, the Board shall have the authority to grant such exemptions and exceptions to these regulations as needed in the opinion of the Board to implement Section 11-46-1 et seq. of the Mississippi Code of 1972, as amended, effectively and efficiently in the best interests of the political subdivisions or the state.

History

Source: Miss. Code Ann. §§ 11-46-18; 11-46-19; 11-46-20

21 Miss. Admin. Code Pt. 301, R. 14.1 Method

The Board hereby delegates to the Claims Manager the authority to dispose of all salvage obtained in the settlement or payment of any tort claim at fair market value by such means and upon such terms as the Claims Manager may think best. Provided, however, that prior to any sale of such salvage the Claims Manager shall ascertain the fair market value of such salvage by requesting offers from at least three salvage yards and shall then sell such salvage to the highest and best offer. All proceeds from the sale of such salvage shall be deposited in the Tort Claims Fund.

History

Source: Miss. Code Ann. §§ 11-46-18; 11-46-19; 11-46-20

21 Miss. Admin. Code Pt. 301, R. 15.1 Authority

The Board shall have the discretionary authority to participate with willing claimants in voluntary non-binding mediation of tort claims against state agencies. The Board shall participate in any mediation ordered by a court pursuant to the mediation rules adopted by the Mississippi Supreme Court.

History

Source: Miss. Code Ann. §§ 11-46-18; 11-46-19; 11-46-20

21 Miss. Admin. Code Pt. 301, R. 16.1 Statement

It is the stated position of the Mississippi Tort Claims Board as spread upon its minutes of the March 10th, 2005, Board meeting that Mississippi is and has always been, since the beginning effective date of the Tort Claims Act, a "single occurrence" jurisdiction and that notwithstanding the number of parties, recovery is limited to the maximum amount allowed by law.

History

Source: Miss. Code Ann. §§ 11-46-18; 11-46-19; 11-46-20

21 Miss. Admin. Code Pt. 301, R. 17.1 Authority

The Board shall have the authority to pursue judicial enforcement of the requirements of Section 11-46-1 et seq. of the Mississippi Code of 1972, as amended, and these regulations in any court of competent jurisdiction; and, take all other reasonable and necessary actions to carry out the powers and duties of the board under Section 11-46-1 et seq. of the Mississippi Code of 1972, as amended and these regulations.

History

Source: Miss. Code Ann. §§ 11-46-18; 11-46-19; 11-46-20

Miss. Admin. Code Title 21 — Law and Justice

MISSISSIPPI ETHICS COMMISSION MISSISSIPPI ETHICS COMMISSION

Part 201 Rules of the Mississippi Ethics Commission

21 Miss. Admin. Code Pt. 201 Rules of the Mississippi Ethics Commission

TORT CLAIMS BOARD TORT CLAIMS BOARD

Part 301 Mississippi Tort Claims Board Rules

21 Miss. Admin. Code Pt. 301, R. 1.1 Purpose Rule 1.2 Organization Rule 1.3 Obtaining Information

21 Miss. Admin. Code Pt. 301, R. 2.1 Purpose Rule 2.2 MTCB Proceedings

21 Miss. Admin. Code Pt. 301, R. 3.1 Rule 3.1

21 Miss. Admin. Code Pt. 301, R. 4.1 Rule 4.1

21 Miss. Admin. Code Pt. 301, R. 5.1 Procedures and Authority

21 Miss. Admin. Code Pt. 301, R. 6.1 Officers and Meetings Rule 6.2 Committees

21 Miss. Admin. Code Pt. 301, R. 7.1 Fees

21 Miss. Admin. Code Pt. 301, R. 8.1 Insurance Requirements

21 Miss. Admin. Code Pt. 301, R. 9.1 Insurance Requirements for Political Subdivisions

21 Miss. Admin. Code Pt. 301, R. 10.1 Excess Liability Coverage

21 Miss. Admin. Code Pt. 301, R. 11.1 Exclusions from State Plan

21 Miss. Admin. Code Pt. 301, R. 12.1 Rule 12.1 Rules

21 Miss. Admin. Code Pt. 301, R. 13.1 Authority

21 Miss. Admin. Code Pt. 301, R. 14.1 Method

21 Miss. Admin. Code Pt. 301, R. 15.1 Authority

21 Miss. Admin. Code Pt. 301, R. 16.1 Statement

21 Miss. Admin. Code Pt. 301, R. 17.1 Authority

21 Miss. Admin. Code Pt. 301, R. 1.1 Purpose

21 Miss. Admin. Code Pt. 301, R. 1.2 Organization

21 Miss. Admin. Code Pt. 301, R. 1.3 Obtaining Information

21 Miss. Admin. Code Pt. 301, R. 2.1 Purpose

21 Miss. Admin. Code Pt. 301, R. 2.2 MTCB Proceedings

21 Miss. Admin. Code Pt. 301, R. 3.1 Purpose

21 Miss. Admin. Code Pt. 301, R. 3.2 Requirements for Public Hearings

21 Miss. Admin. Code Pt. 301, R. 3.3 Location of Public Hearings

21 Miss. Admin. Code Pt. 301, R. 3.4 Conducting Public Hearings

21 Miss. Admin. Code Pt. 301, R. 3.5 Public Availability of Public Hearings

21 Miss. Admin. Code Pt. 301, R. 4.1 Purpose

21 Miss. Admin. Code Pt. 301, R. 4.2 General

21 Miss. Admin. Code Pt. 301, R. 4.3 Persons Who May Request Declaratory Opinions

21 Miss. Admin. Code Pt. 301, R. 4.4 Subjects Which May be Addressed in Declaratory Opinions

21 Miss. Admin. Code Pt. 301, R. 4.5 Circumstances in Which Declaratory Opinions Will Not Be Issued

21 Miss. Admin. Code Pt. 301, R. 4.6 Form of the Request for a Declaratory Opinion

21 Miss. Admin. Code Pt. 301, R. 4.7 Time for MTCB’S Response

21 Miss. Admin. Code Pt. 301, R. 4.8 Public Availability of Requests and Declaratory Opinions

21 Miss. Admin. Code Pt. 301, R. 5.1 Procedures and Authority

21 Miss. Admin. Code Pt. 301, R. 6.1 Officers and Meetings

21 Miss. Admin. Code Pt. 301, R. 6.2 Committees

21 Miss. Admin. Code Pt. 301, R. 7.1 Fees

21 Miss. Admin. Code Pt. 301, R. 8.1 Insurance Requirements

21 Miss. Admin. Code Pt. 301, R. 9.1 Insurance Requirements for Political Subdivisions

21 Miss. Admin. Code Pt. 301, R. 10.1 Excess Liability Coverage

21 Miss. Admin. Code Pt. 301, R. 11.1 Exclusions from State Plan

21 Miss. Admin. Code Pt. 301, R. 12.1 Rules

21 Miss. Admin. Code Pt. 301, R. 13.1 Authority

21 Miss. Admin. Code Pt. 301, R. 14.1 Method

21 Miss. Admin. Code Pt. 301, R. 15.1 Authority

21 Miss. Admin. Code Pt. 301, R. 16.1 Statement

21 Miss. Admin. Code Pt. 301, R. 17.1 Authority

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