Members of the Mississippi Ethics Commission postponed on Thursday adopting “a final order” to support their controversial conclusion that the Mississippi Legislature is not bound by the state’s open meetings law.

Long-time Commission Chair Ben Stone proposed placing in the final order that while the open meetings law does not specifically cite the Legislature, the Mississippi Constitution clearly mandates that the Legislature conduct its business in the open.

While Stone said the Ethics Commission is authorized to rule on open meetings issues related solely to the law and is not authorized to interpret the constitution, he said he believes the language related to the constitution could still be included in the final order.

“We are not allowed to interpret it, but we are able to cite it and put it in our opinion,” Stone said at the start of the specially called meeting that was conducted via Zoom. “The Legislature is not going to close its doors regardless of what we do here today.”

The eight-member commission adjourned Thursday without making a final decision, but scheduled another meeting for Dec. 14 in an attempt to resolve the issue.

The issue arose in response to a legal challenge by the Mississippi Free Press to the Ethics Commission of whether House Speaker Philip Gunn is violating the state’s open meetings laws when he holds meetings of the Republican Caucus behind closed doors. According to various sources, as reported by Mississippi Today, legislative business is routinely discussed in the closed caucus meetings.

The Republican Caucus consists of 75 of the 122 members of the Mississippi House. A majority constitutes a quorum that is needed for the House to conduct business.

In addressing the issue of the caucus meetings, the Ethics Commission by a 5-3 vote last week ruled that the Legislature is not covered by the open meetings law.

Many members stuck to that opinion in Thursday’s special meeting.

“We believe the Legislature should be open, is required to be open,” said Commissioner Stephen Burrow, but the issue is “outside the jurisdiction of the Ethics Commission.”

He said it is up to a courts, not the Ethics Commission, to make the final decision on whether the Legislature is mandated to be open.

Commissioner Samuel Kelly said he believed legislators “clearly intended to keep themselves out” of the open meetings law. The law specifies certain bodies that should be open. It lists that certain legislative committees shall be open, but it does not cite the Legislature as a whole. By the same token, in citing specific entities that shall be exempt from the open meetings law, it also does not mention the Legislature.

The open meetings law specifies that “all official meetings of any public body, unless otherwise provided in this chapter or in the constitution of the United States of America or the state of Mississippi are declared to be public meetings and shall be open to the public at all times.” The law does allow closed sessions of public bodies in certain instances, such as to discuss lawsuits or personnel issues.

The final decision of the Ethics Commission, which consists of political appointees made by the speaker, lieutenant governor, governor and chief justice of the Supreme Court, can be appealed to the courts.

Commissioner Maxwell Luter said he is “very concerned” about the precedent that would be established by saying the Legislature is not covered by the open meetings law. He also said that he feared that such a ruling would negatively impact the perception of the Ethics Commission.

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