Lawmakers’ ability to govern in private thrust into 2019 governor’s race

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Rogelio V. Solis / Associated Press

Mississippi Attorney General Jim Hood tells reporters, he has sent letters to more than 50 state officials asking them to preserve any records they might have related to a planned frontage road off Lakeland Drive from Lt. Gov. Tate Reeves’ neighborhood to a nearby traffic light at a shopping center in Flowood, Thursday, July 19, 2018, following an unrelated news conference in Jackson, Miss.

Attorney General Jim Hood stepped up on the stage at the Mississippi Civil Rights Museum on Feb. 19 and did something no major statewide candidate has done in three-and-a-half decades: He called for an end to the Legislature’s exemption from state public records law.

“We need to open up state government,” Hood said to the crowd of about 200 gathered for his campaign’s official kickoff announcement. “We need to take a broom and clean it out. For too long the legislative leaders have run the state like a casino for special interests, collecting chips and handing out favors.”

The Legislature passed the Open Records Act in 1983, exempting itself from having to disclose correspondence with special interests and other power brokers and effectively shielding itself from public scrutiny.

Both the Senate and House developed rules that all legislative records except those related to “expense records” are not accessible to the public.

Rogelio V. Solis, AP, 2017

Gray Tollison, R-Oxford, and chairman of the Senate Rules committee says the ability to freely communicate with other lawmakers is important.  

“I understand the press’ perspective, but I think you can have more deliberation when you know you can freely communicate with each other,” Sen. Gray Tollison, R-Oxford and chairman of the Senate Rules committee, told Mississippi Today. “I think (a change in the law) would have a chilling effect on the legislative process.”

Since the law’s passing in 1983, when Democrats controlled the Legislature, the legislative exemption has never been seriously challenged by government leaders or in the courts.

The closest point to legislative change came in 2009, when Senate Pro Tempore Billy Hewes, then the top leader in the Senate and now the Republican mayor of Gulfport, filed a bill that would have included the Legislature in the law along with most executive branch agencies. With then-Lt. Gov. Phil Bryant at the helm of the Senate, the bill died in the Rules Committee that was chaired by Hewes.

Hood, the Democratic attorney general who is running for governor, has mentioned the legislative exemption at least twice on the campaign trail this year and has promised to make it a hallmark of his gubernatorial bid.

“We need to know who’s lobbying, who’s calling, who’s emailing,” Hood said in February at a luncheon hosted by the Stennis Institute. “Maybe they go under surface with some of their communications, but at least we would be able to learn who’s scratching their back and who they’re doing special favors for.”

Hood’s outlook may be drawn from recent frustrations with the law and his likely general election opponent in the governor’s race later this year – Lt. Gov. Tate Reeves. In 2018, Hood’s office was denied access to the correspondence of legislators for an investigation of whether undue political influence was exerted to push a $2 million frontage road that would connect Reeves’ gated suburban neighborhood to easier highway access.

Reeves told Hood’s office they found no correspondence relevant to the investigation and turned nothing over to investigators.

Reeves’ office has consistently pointed reporters to a 2018 letter from Reeves to Hood when asked about the investigation. This week, Reeves’ office did not respond to a request for comment about the legislative exemption from the Open Records Act.

Hood also has said he would like to see if there is correspondence related to legislation originating in the Senate and passed last year that he said Entergy is trying to use to stop his lawsuit against the utility company, which he alleges has overcharged its customers for electricity.

“Investigations aside, Mississippians have a right to know what their elected leaders are up to,” Hood said in a prepared statement. “For the Legislature to hide behind its own set of rules – designed to keep the public in the dark about its activities – is wrong. Our lieutenant governor, as well as other legislative leaders, should be forthcoming in how they conduct their business. To do otherwise is unfair to the public they serve, and a recipe for trouble.”

Despite Hood’s consternation, Mississippi’s legislative exemption is not out of the national mainstream.

The Associated Press in 2016 contacted legislative leaders in all 50 states asking for their daily schedules and official emails. In 33 states, including Mississippi, those requests were denied in some fashion because legislators were not subject to their state’s open records laws.

Gabriel Austin, Mississippi Today

Rep. Jason White, R-West

Rep. Jason White, R-West and chairman of the House Rules committee, said legislators should be able to communicate among themselves and with their constituents about legislation without fear of those correspondence becoming public.

“I think the private conversations of legislators should be private,” he told Mississippi Today.

The law has been challenged by non-governmental groups several times in the last couple of decades.

Legislative leadership refused to cooperate with a 2015 public records request from supporters of a group advocating for Initiative 42, an effort to place in the state Constitution a stronger commitment to funding public education. The group requested correspondence from Reeves and Speaker Philip Gunn related to Initiative 42, which the two leaders publicly opposed.

The leaders refused the request.

In the early 2000s, the Associated Press filed a public records request for the cellphone records for then-Lt. Gov. Amy Tuck and then-Speaker Tim Ford.

Tuck refused, citing the legislative exemption to the public records law. Ford pointed out he was not using a state government-issued cell phone and maintained his private device was not subject to the public records law.