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In 1996, former Gov. Kirk Fordice said the debate over whether to confirm the four white males he appointed to the Mississippi college board should not be a black and white issue but a matter of competence.

After Sens. Gray Tollison and Grey Ferris voted with the African American members of the Senate Universities and Colleges Committee to block those appointments, then-Sen. Tommy Robertson of Moss Point ventured to the Capitol press room to proclaim it was not a black and white issue, but “a gray issue” — alluding to the first names of the swing vote senators.

Later that year, Fordice appointed four new members: two white males, a white female and an African American male. He called a special session where the four were confirmed.

The four did not try to serve prior to the special session. And the governor did not try to seat the four and let them serve unconfirmed until the next regular session. Fordice was adhering to what appears to be the letter of the law, ensuring the appointees were confirmed by the Senate before they began serving.

But instances of gubernatorial appointees serving on the college board and other boards and commissions prior to Senate confirmation occur regularly. It is another gray issue.

Earlier this month, Gov. Tate Reeves appointed four new members to the college board, three members to the Mississippi Community College Board and two members to the Board of Education. The nine members already are serving and presumably will not be confirmed by the Senate until the 2022 session.

Issues surrounding the appointments, primarily by the governor, to the roughly 200 boards that govern various agencies — ranging from big ones like the Board of Education to smaller ones like Board of Cosmetology — are the black hole of state government.

More than two weeks ago, both the offices of Secretary of State and of the governor were asked for a list of appointees made recently to some of the smaller boards. Neither agency has provided that list. The appointments might not be available until they are provided to the Senate during the 2022 session when their confirmation will be considered. Yet, they already are serving on public boards that are funded with taxpayer funds.

Then there is the question of when the appointees can begin serving. The attorney general, in a 1977 opinion, said when a “term is about to expire and will expire by limitation before the next session of the Senate, the governor should nominate a person to fill the vacancy,” and “if he fails to do so, he cannot make a valid appointment to fill such a vacancy in the vacation of the Senate.”

A 2015 document compiled by the Legislature’s Performance Evaluation and Expenditure Review Committee reaches essentially the same conclusion.

The PEER report adds that in many instances, the governor appoints someone after the session ends and that appointee begins serving prior to Senate confirmation.

“This practice is in direct contravention of” state law, PEER concluded. Other opinions and interpretations reach a different conclusion — that appointees can serve before Senate confirmation. Remember we are talking about gray issues.

Fordice followed what appears to be the law in 1996 after the debacle that occurred with his four white men. But in 1992, only one of his college board appointees was confirmed. After the session, he appointed three new members who began serving immediately. They were not confirmed until the 1993 session.

Part of the reason that legislators and governmental entities do not challenge the practice of appointees serving before their confirmation is that many of the boards operate short-handed. Once a new appointee is named, his or her services are needed as soon as possible for multiple reasons, including the most basic need of having a quorum to conduct business.

This past session, two bills were filed that would have taken appointments from the governor not made in a timely manner and would have given them to the lieutenant governor. State Rep. Timmy Ladner, R-Poplarville, said he filed the bill because of the long delay in filling multiple vacancies.

Sen. David Parker, R-Olive Branch, filed similar legislation. He said he was hoping to spur action on vacancies on the State Workforce Investment Board. Reeves was supposed to appoint two members to the board recommended by Speaker Philip Gunn, but the governor thus far has not.

Overall, Parker said he understands the issues Reeves had making appointments to the various boards and commissions while he was consumed with COVID-19 issues.

Still, it seems a basic function to ensure people are in place to govern the various agencies of state government. But multiple governors, not just Reeves, have struggled with that basis function.

Former Gov. Phil Bryant proposed a program to consolidate and eliminate some of those boards and commissions. Limited progress was made on Bryant’s goal, but in general the black hole remains.

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Senate Republicans, including Mississippi’s delegation, on Friday blocked the creation of an independent commission to investigate the Jan. 6 Capitol riot.

Six Republicans voted to advance debate on the commission, but the final 54 to 35 vote fell six votes shy of the 60 votes needed to prevent a procedural filibuster. 

The bill, modeled after the commission that studied the Sept. 11, 2001, terrorist attacks, was the result of bipartisan negotiations between House Homeland Security Chairman and Mississippi Rep. Bennie Thompson and the committee’s Republican ranking member Rep. John Katko of New York.

The commission would have been composed of 10 members, with both parties appointing half of them. Proponents of the commission said it was necessary for Congress to acquire a full understanding of the most violent attack on Congress since the War of 1812.

Following the vote, Rep. Thompson thanked the Republicans who supported the bill and lambasted those who opposed it, saying they cared more about the potential political ramifications for the 2022 midterm elections than a full account of the deadly pro-Trump riot.

“To be clear, Senate Republicans today voted against finding the truth,” Thompson said in a statement. “They voted against the law enforcement that protect the Capitol every day. They voted against the integrity of our democracy.”

Though 35 Republicans voted to advance the commission in the House, including Mississippi Rep. Michael Guest, the party’s ranks in the Senate became much more unified in opposition after minority leader, Sen. Mitch McConnell, argued the commission was unnecessary given an ongoing report being worked on by two Senate committees. 

It has been reported this week that McConnell whipped the necessary votes to block the legislation by asking Republican Senators who were sympathetic to the commission to vote against it as a “personal favor.”

“I do not believe the additional extraneous commission that Democratic leaders want would uncover crucial new facts or promote healing,” McConnell said. “Frankly, I do not believe it is even designed to do that.”

Sen. Roger Wicker echoed McConnell’s sentiments in a statement following the vote.

“It is clear that the events of January 6 have been and will continue to be investigated by Congress and our law enforcement agencies,” Wicker said. “It is my view that adding a new commission to this mix would inevitably delay and distract from the productive investigations already underway.”

Sen. Cindy Hyde-Smith also voted against the bill, but has not commented on her decision. 

The six Republicans who voted to advance debate on the commission included Sens. Bill Cassidy of Louisiana, Susan M. Collins of Maine, Lisa Murkowski of Alaska, Rob Portman of Ohio, Mitt Romney of Utah and Ben Sasse of Nebraska. All but Portman voted to find former President Donald Trump guilty of inciting the insurrection during his second impeachment trial in February. 

READ MORE: Mississippi’s GOP congressmen voted to overturn Biden win in Arizona, Pennsylvania.

Congressmen Kelly, Guest met with Mississippi ‘patriot’ group before Capitol riot

Meet the ‘patriot’ group that scored a meeting with U.S. Reps. Kelly, Guest

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Fewer active workers are supporting a growing number of retirees receiving pension benefits from the Mississippi Public Employees’ Retirement System, a report by a legislative oversight agency concluded.

The study by the Mississippi Legislative Performance Evaluation and Expenditure Committee pointed out that between 2010 and 2020 the ratio of active employees to retired employees decreased about 33%, from 2.02 active to 1 retiree, to 1.35 to 1.

“As a result of the decrease, the payroll of fewer active members must fund future pension obligations, a factor made more important because contributions from active members and their employers comprise approximately 46% of PERS revenues” as of 2020, the report pointed out.

It could be argued that state budget cuts made in recent years by the Legislature resulting in a reduction in the government work force have made it more difficult to ensure PERS’ financial viability.

The reduction in the employee to retiree ratio and other factors will at least lead to the PERS governing board considering increasing the employer contribution (paid by state, education entities and local governments) to the retirement plan, according to the report by the legislative committee. The increase in the employer contribution, costing government more money, could be considered as early as the June 23 meeting of the PERS Board.

The legislative PEER committee does an annual report on PERS, which has been in the spotlight for more than a decade as the governing board for the retirement system has strived to put in place policies to ensure its long-term financial viability. Most state, city and county employees and public educators are in the system that currently has about 325,000 members, including current employees, retirees and others who used to work in the public sector but no longer do.

The report said that because of some warning indicators “flashing red” the governing board might have to consider raising the employer contribution to the public retirement system in the coming year.

The system had a full-funding ratio of 58.8% last June down from 61.3% the previous June. That means that it has almost 59% percent of the assets needed to pay the benefits of all the people in the system, ranging from the newest hires to those already retired. Theoretically it is recommended that a system has a funding ratio of about 80%.

The system has struggled to increase its funding rate, the PEER report said because of:

• The decline in public sector workers

• A growing number of retirees

• Slow wage growth for public employees

• Benefits that were added by the Legislature in the early 2000s

• Investments not meeting returns in some years

Officials had said earlier they believe steps taken in recent years will over time help boost the funding ratio.

In 2018, the board took the step of increasing the contributions from employers, such as state agencies and local governments, from 15.75 percent of payroll for each employee to 17.4%. That small increase cost state and local governments, including education entities, an additional $100 million annually.

Employees in the system pay 9 percent of their salary toward their retirement. It was increased from 7.25 percent in the late 2000s. The average yearly benefit from the plan is about $24,400.

In June 2020, according to PERS’ actuary, the plan’s funding ratio was projected to be at 67.6% by 2047 compared to a projection of 83.2% by 2047 made the previous year.

The decline in the funding ratio was attributable to multiple factors, including “less than expected revenue gains.”

The system has total assets of $28.2 billion.

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Since she was arrested over a year ago for allegedly stealing millions of federal welfare dollars, Nancy New says she’s been anxiously waiting to tell her side of the story.

Now, the educator-turned-businesswoman is offering her version of events through a lawsuit she and her son filed against the firm that conducted her nonprofit’s annual audits. They blame the accountant for not accurately assessing her organization’s financial picture. 

Authorities have accused New, founder of the New Summit private schools and nonprofit Mississippi Community Education Center, and her son Zach New of embezzling $4 million in welfare money and, in a separate federal case, defrauding the state education department out of $2 million.

Authorities also charged the former director of Mississippi Department of Human Services John Davis, who administered the funds for the federal government, alleging he conspired with the News.

To help in Davis’ defense against embezzlement charges, his attorney subpoenaed a series of financial documents and audits from the state agency. But most of what he asked for doesn’t exist or isn’t in the agency’s possession, according to a records officer.

The embezzlement cases center on the federal Temporary Assistance for Needy Families block grant, which states have broad authority to spend to accomplish one of four vague anti-poverty objectives. The investigation originated at the State Auditor’s Office.

The more nonsensical payments — such as $1.1 million to Brett Favre to supposedly market the state’s social services — have dominated headlines.

But if recent court filings are any indication, arguments in the ongoing criminal cases could fixate on accounting technicalities and lack of record keeping. 

“Errors are different from fraud,” said Billy Morehead, an accounting professor at Mississippi College and chair of the Mississippi Public Procurement Review Board. “Fraud is an intentional misuse of funds. An error is a mistake. So if they can document that the funds were used appropriately, but they mistakenly recorded them or made errors in how they kept the financials, then obviously that lessens the focus of this as fraud or embezzlement. It’s just shoddy bookkeeping.”

Last year, Mississippi Department of Human Services hired a firm for $2 million to conduct a full forensic audit, which Nancy New said she expects to significantly contradict the state single audit released last May. 

“The forensic audit is going to prove a lot,” Nancy New told reporters in November. “This has become a numbers case.”

“There’s so many things that we did that we probably didn’t write down,” she added. “I don’t write down when I hand somebody (welfare clients) $50.”

Meanwhile, the nonprofit’s former staff accountant Anne McGrew tried to plead guilty for her role in the scheme, but a judge rejected the plea deal she reached with the state earlier this year.

Auditor Shad White previously said that the nonprofit’s own accounting was unreliable. The state had expected the forensic audit to be completed by the end of May, but a spokesperson for the state agency said New’s nonprofit has repeatedly denied the accounting firm the records it needs, delaying the audit. The agency now hopes to receive the report by July 1.

Five defendants in the alleged scheme, including McGrew, are still awaiting trial. 

The Department of Human Services has since changed its internal policy to ensure they award these grants competitively and require more reporting from subgrantees. 

Mississippi’s welfare program has consistently served fewer and fewer families since Congress replaced the former entitlement cash benefit program with Temporary Assistance for Needy Families, or TANF, during welfare reform in the 1990s. 

Over 30,000 families received cash assistance in 1998 compared to less than 3,000 in 2020, though Mississippi’s poverty rate remains one of the highest in the nation at nearly 20%. 

In accordance with local politicians’ philosophy about how to address poverty, Mississippi’s welfare agency has moved away from offering direct assistance in favor of ancillary services like parenting classes and motivational speaking, according to state reporting.

Under Davis, who envisioned a different, privately-operated approach to delivering social services, Mississippi Department of Human Services began transferring large chunks of its federal welfare grant to Nancy New’s organization and another nonprofit called Family Resource Center of Northeast Mississippi.

After showering the two nonprofits with tens of millions of federal grant funds, Davis required almost no real accounting of how they spent the money. In the case of most of the spending authorities have now questioned, Mississippi Community Education Center and Family Resource Center of Northeast Mississippi — not the state agency — wrote and signed the checks.

While they were supposed to be funding dozens of “Families First” resource centers across the state, a state audit published last May alleged they were actually paying for lobbyists, luxury vehicles, religious concerts, expensive getaways, publicity events with famous athletes and even a speeding ticket.

The News’ latest complaint at least partially blames the potential misspending on the third-party accountant’s alleged incompetence, but it also goes much further.

It expounds on Nancy New’s backstory, her vision for assisting needy families and how the promise of a statewide anti-poverty initiative devolved into Nancy working 14-hour days trying to meet Davis’ “special project” demands.

“This overload created shortfalls and made accounting for these programs, the funds associated with them, and the ways in which those funds could be spent, increasingly complex,” the lawsuit reads.

Nancy New expressed concerns over Davis’ fast and loose methods of granting welfare money, the lawsuit asserts, but her nonprofit complied with the agency’s instruction to lump all of its grant money together, confusing the accounting. 

The complaint, filed May 3, says the third-party accounting firm Williams, Weiss, Hester & Co. should have noted the large increase in federal grants, ensuring they used the funds properly — and alleges they didn’t. The nonprofit is also listed as a plaintiff on the suit.

But Morehead said it is not an independent auditor’s responsibility to tell organizations how to spend their money; in fact, that could compromise their independence and ability to conduct the audit.

“It’s not the auditor’s place to say what monies should be spent on which programs,” Morehead said. “The auditor would have responsibility if they discovered monies spent inappropriately to do additional testing, but the organization is the one who should be the one preparing the financial statements we see here.”

Though Mississippi Community Education Center’s cash balance was made up almost entirely of welfare funds, coinciding with the expansion of its partnership with the Department of Human Services, the News alleged that the third-party accountant “failed to disclose the restrictive nature of the reported cash.”

Williams, Weiss, Hester & Co. said in its 2018 audit that the nonprofit complied with requirements related to its federal grants. The lawsuit alleges the firm did not possess the specialty needed to perform the kind of federal single audit the nonprofit required — a deficiency the firm was cited as having in a 2017 peer review.

The 19-page complaint also claims that the welfare agency “and other public officials” assigned New’s nonprofit to fund multiple special projects, including Prevacus, the biomedical startup company that was developing a cure for concussions.

Several Mississippians had been involved in discussions about luring Prevacus into the state, including Favre and former Gov. Phil Bryant. Indictments against the News allege they used welfare money to make personal investments in Prevacus.

New’s lawsuit says officials also directed the nonprofit to pay for projects with Ted DiBiase Sr. and Jr.’s companies, the foundation of a virtual reality technology company called Lobaki, Paul Lacoste’s boot camp, the ministry of Christian musical artist Jason Crabb and Rise Malibu, the drug rehab facility where Brett DiBiase received treatment for four months.

Nancy New told reporters in November that her attorney Cynthia Speetjens had instructed her not to speak publicly about what happened. Shortly after that, a judge issued a gag order on all parties to the case.

“I wanna scream it to the rooftops,” New said when approached by reporters at her north Jackson home — property federal authorities would later allege was purchased with public special education dollars. “There’s a lot more information to come and we’re just waiting our turn.”

Mark Carroll, the attorney representing the nonprofit and the News in this complaint, is not the same attorney representing either of the News in their criminal cases.

The records Davis’ attorney Merrida Coxwell received through his subpoena, which are now considered discovery in Davis’ trial, do not contain any immediately revelatory information. In fact, they are mostly documents that the media have already obtained and published.

What the records do show — and what could be a clue about Davis’ possible defense — is the number of state agency officials who signed off on the nonprofit’s sharp spending increase that investigators have now questioned. They also show how severely the agency lacked a paper trail of grantees and what they accomplished.

The New nonprofit submitted to the welfare agency periodic “closeout” documents, which are supposed to contain the financial and performance information the agency needs to ensure the nonprofit complied with grant requirements and spent the funds properly. The reports outlined grants as large as $18 million in one year and contained vague spending details, such as $1.2 million on salaries, $82,000 on travel and $15.7 million on “subsidies, loans & grants.”

The News’ lawsuit explained that Davis’ agency instructed the nonprofit to divide its annual budget into those broad categories. 

A total of 14 different agency employees signed off on these reports from 2017 to early 2020 before the February arrests. 

Mississippi Department of Human Services Communication Director Danny Blanton said that the vague nature of the reports meant that those employees, some of whom are still with the agency, would not have been able to tell that the nonprofit was allegedly misspending the money. “The closeouts were conducted properly,” Blanton said. “They weren’t doing anything wrong by signing off on it.”

During the Davis administration, the agency did have monitoring and program integrity divisions, whose function was to ensure subgrantees followed contract guidelines. But Blanton told Mississippi Today that any time a compliance officer started to ask questions about certain nonprofit spending, “Davis would pull them back.”

Just as Davis was taking over in 2016, the agency requested a bill to separate child protection services from the Mississippi Department of Human Services. More quietly, the legislation also exempted all Human Services employees from protections under the state personnel board, meaning Davis could more easily fire employees at his will. Blanton described a culture of intimidation at the agency under Davis. “He would terminate someone on a whim,” Blanton said.

The subpoena itself, and the items that couldn’t be produced, provides some insight into the mindset of the defense.

Coxwell asked for nine items: 

• Mississippi Community Education Centers annual final fiscal reports from 2017 to 2020
• Any response Mississippi Department of Human Services made back to MCEC in response to those fiscal reports
• Reports, summaries or notes created during yearly telephone reviews or in-person visits from the regional TANF office to MDHS from 2017 to 2020
• Reports, summaries or notes created during yearly telephone reviews or in-person visits from the regional TANF office to New’s nonprofit from 2017 to 2020
• Reports, summaries or notes created during Regional TANF Program Manager LaMonica Shelton’s 2018 visit to New’s nonprofit
• The bank name and account number where MDHS deposited funds to the nonprofit.
• Single audits for years 2017-2020 produced by New’s nonprofit
• Supplemental audit or review of the nonprofit’s use of money for drug and alcohol treatment for Brett DiBiase
• The nonprofit’s monthly outcomes reports from December 2018 to July 2019 required by their MDHS contract 

In return, he received the closeout documents, just one 2017 audit, and “outcome reports” that were supposed to explain how many people they served but instead, Mississippi Today previously reported, contained nonsensical figures. 

The agency said it did not possess any agency response to the nonprofit’s fiscal reports, any notes or summaries of any annual meetings with federal authorities, any audit or reviews of the nonprofit’s payments to DiBiase’s drug treatment. Shelton did not return emails to Mississippi Today.

Blanton confirmed that the agency never received annual audits from New’s nonprofit after 2017, as is typically required. Agency officials had sent letters to the nonprofit asking for the missing reports, Blanton said, but were ignored. MCEC did file a 2018 audit with the Mississippi Secretary of State, but did not file an audit for 2019, when most of the alleged embezzlement occurred. 

Trials in Hinds County are set to begin no earlier than Sept. 9 for Davis and Oct. 4 for Nancy and Zach New. 

McGrew, the nonprofit’s former accountant, could stand trial Aug. 2 if she doesn’t reach a plea deal with the state as she initially attempted. Former Mississippi Department of Human Services procurement officer Latimer Smith may go to trial Sept. 27.

Attorneys could request additional continuances or reach plea deals before then. Former professional wrestler Brett DiBiase, who was accused of receiving $48,000 from the welfare agency for work he did not complete, is the only defendant to plead guilty so far. He faces a maximum prison sentence of five years, but he won’t be sentenced until he’s finished cooperating with the state prosecution against the other defendants.

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For better or for worse, all COVID-related numbers in Mississippi are falling: infections, hospitalizations, deaths, vaccinations and tests.

As with its vaccination rate, Mississippi is lagging behind in COVID testing. Testing rates have plummeted nationally, but no other state is testing fewer residents per capita, and most are leagues ahead. This is a problem in a state where so many residents are declining to get vaccinated, even as health experts insist that wide-scale testing can help facilitate a return to normalcy that guards against large virus outbreaks in the absence of herd immunity protections.

One reason for the severe decline in testing is it being an at-will affair. Most people avoid getting tested unless they know for a fact they’ve come into contact with someone who has tested positive for COVID-19,

John Davies, a 42-year-old truck driver from Grenada, told Mississippi Today he had to get tested for COVID-19 six different times in the past year. Each time he did so begrudgingly, and only because he was told he had to by his employer.

“I hated sticking that damn Q-tip up my nose. It was way more invasive and annoying than getting the vaccine,” Davies said. 

Even if getting vaccinated is looked upon more favorably than getting tested, it can’t be by much. COVID-19 vaccinations had fallen for seven straight weeks in Mississippi before seeing a slight uptick last week. That higher number still represents a nearly 71% decrease since the state's February peak. 

The issues of vaccine access that existed during the early stages of the vaccine rollout have largely been eliminated over the past few months. The Mississippi Department of Health will now come directly to the homes of people who want to get vaccinated but don’t have reliable transportation. They’re also offering this option to businesses or other local organizations that want to host vaccination drives. People are simply declining to take the shot and that’s keeping the state’s vaccination rate low. 

Mississippi continues to rank last in the nation in the share of its population that has been vaccinated. And fewer than 1,000 Mississippians ages 12-15 received their first dose of the Pfizer vaccine in the week following its approval for that age group.

MSDH reported on Friday that 1,019,460 people in Mississippi — over 33% of the state’s population — have received at least their first dose of COVID-19 vaccine. More than 887,000 people have been fully inoculated since the state began distributing vaccines in December.

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Officials in Greenville Public School District again delayed taking any action following a two-day strike by bus drivers last month.

Between 13 to 20 bus drivers for the district skipped work to protest reduced pay and what they said is poor work conditions. Following the strike, which is explicitly illegal in Mississippi, the school board reversed a previous decision to reduce the number of work days for the next school year by five.

However, the board attorney this week advised the board undo that action. The board has not yet followed that advice.

At its meeting Tuesday night, Superintendent Debra Dace presented board members with additional information they had requested about the incident, including a timeline and a list of the bus drivers who participated. The strike law passed in 1985 clearly states that school board members themselves are responsible for reporting the names of those who went on strike to the Mississippi Attorney General’s Office. For each day that those names are not reported by the board to the state, the individual board members and school administrators can be fined between $100 and $250. 

“At the last meeting, the board requested a timeline and justification of the names (of bus drivers) that were on the list just to ensure that all of those names needed to be on the list and if anybody else’s name needed to be added to the list so we could get further clarification of getting this information in to the state auditor’s office,” said Jan Vaughn, board president.

But the board voted unanimously not to take any further action and did not indicate if or when it would.

Requests for comment from Vaughn and Antoinette Williams, another board member, were not returned Wednesday. The superintendent said she had “no comment at this time.”

READ MORE: Greenville bus strike could transform public education in Mississippi

READ MORE: Here’s why Greenville school bus drivers went on strike

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In this edition of Mississippi Stories, Mississippi Today Editor-At-Large Marshall Ramsey sits down with author Susan Cushman to discuss her new novel, John and Mary Margaret, her love of writing and her creative process. Cushman, who was born in Jackson and attended Ole Miss in the 1960s, now lives in Memphis, Tenn.

John and Mary Margaret is an insider’s look into the white-privilege bubble of a young girl growing up in Jackson, and participating in sorority life on the Ole Miss campus in the late 1960s. But it’s also a candid portrayal of a young Black boy from Memphis who follows his dream to study law at the predominately white university. What happens when their shared love for literature blossoms into an ill-fated romance? Set squarely in the center of decades of historical events in Mississippi and Memphis, their story brings those events to life. While a work of fiction, it is based closely on real events. 

Cushman is also the author of Friends of the Library, Cherry Bomb and Tangles and Plaques: A Mother and Daughter Face Alzheimer’s and is the editor of  Southern Writers on Writing,  A Second Blooming: Becoming the Women We Are Meant To Be and The Pulpwood Queens Celebrate 20 Years!

You can find out more about her at www.susancushman.com

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