Professional Documents
Culture Documents
V.
Joel Bomgar
APPELLEE
Filed By:
The undersigned counsel of record certifies that the following listed persons have an
/s/Tommy Whitfield
Tommy Whitfield
Attorney for Appellant/DPS
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TABLE OF CONTENTS
TABLE OF CONTENTS.................................................................................................................ii
TABLE OF AUTHORITIES..........................................................................................................iii
STANDARD OF REVIEW.............................................................................................................6
ARGUMENT...................................................................................................................................7
I. The MPRA does not authorize the Ethics Commission to render a civil
judgment against a non-party in violation of their due process rights.............7
III. The Public Records Act does not allow for individual sanctions for
failing to timely respond to a request.................................................................15
CONCLUSION..............................................................................................................................21
CERTIFICATE OF SERVICE......................................................................................................22
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TABLE OF AUTHORITIES
Cases:
Armstrong v. Manzo, 380 U.S. 545, 550, 85 S.Ct. 1187, 1190, 14 L.Ed.2d 62 (1965)............10,12
Baker ex rel. Williams v. Williams, 503 So.2d 249, 254 (Miss. 1987)............................................8
Booth v. Miss. Emp't Sec. Comm'n, 588 So.2d 422, 428 (Miss. 1991)..........................................10
Carl Ronnie Daricek Living Trust v. Hancock County ex rel. Bd. of Supr’s,
34 So. 3d 587, 594 (Miss. 2010)......................................................................................................9
Cockrell v. Pearl River Valley Water Supply Dist., 865 So.2d 357, 360 (Miss.2004)....................6
Coe v. Armour Fertilizer Works, 237 U.S. 413, 424, 35 S.Ct. 625, 629,
59 L.Ed. 1027 (1915).....................................................................................................................12
Dunn v. State Farm Fire & Cas. Co., 927 F.2d 869, 875 (5th Cir.1991)......................................14
Hinds Cty. Sch. Dist. Bd. of Trs. v. R.B. ex rel. D.L.B., 10 So.3d 387,
394–95 (¶ 17) (Miss. 2008)..............................................................................................................6
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Jackson Med. Clinic for Women, P.A. v. Moore, 836 So.2d 767, 771 (Miss.2003)......................13
Miss. Comm'n on Judicial Performance v. Sutton, 985 So.2d 322, 326 (Miss.2008).....................7
Mississippi Dep't of Audit v. Gulf Publ'g Co., 235 So. 3d 1452, 1462–63 (Miss. Ct. App.),
reh'g denied (Aug. 23, 2016), cert. granted, 204 So. 3d 289 (Miss. 2016),
and judgment rev'd in part, vacated in part, 236 So. 3d 32 (Miss. 2017)........................................9
Miss. State Bd. of Health v. Johnson, 197 Miss. 417, 417, 19 So.2d 445, 447 (1944)..................10
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652,
657, 94 L.Ed. 865 (1950)...............................................................................................................10
Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 86–87, 108 S. Ct. 896, 900,
99 L. Ed. 2d 75 (1988)...................................................................................................................12
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State ex rel. Atkins v. Missouri State Bd. of Accountancy, 351 S.W.2d 483
(Mo.App.1961)..............................................................................................................................16
State ex rel. Oklahoma State Bd. of Embalmers and Funeral Directors v. Guardian Funeral
Home, 429 P.2d 732 (Okl.1967)....................................................................................................16
United States v. Zolin, 491 U.S. 554, 562, 109 S.Ct. 2619,
105 L.Ed.2d 469 (1989).................................................................................................................12
Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677,
66 L.Ed.2d 584 (1981)...................................................................................................................12
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1.) The Mississippi Ethics Commission sanctions against Shannon Jones and
Jim Younger violated their right to due process and should be overturned.
2.) The proposed responses of Director Dowdy were exempt from disclosure
under the Attorney-Client exception.
4) Even if the Commission could sanction individuals for not timely responding,
the record does not support such a sanction. The parties had agreed to an
extension which obviated the statutory time line.
5) The Commission misapplied the Public Records Act to Shannon Jones and
Jim Younger. They only provided legal advice to the Department of Public
Safety and did not make the final decision.
6) The Court must interpret the MPRA to determine if proposed draft answers
to Representative Bomgar’s questions are public records required to be
maintained and produced by the Department under the MPRA.
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Introduction
The Mississippi Ethics Commission violated the due process rights of Department of
Public Safety Attorneys Shannon Jones and Jim Younger. The Ethics Commission sanctioned
each of them one hundred ($100.00) dollars for allegedly violating the Mississippi Public
Records Act. However, the Ethics Commission failed to provide either party with the requisite
notice and due process required under the United States and Mississippi Constitutions. In
addition, the Ethics Commission acted outside and beyond its statutory authority by sanctioning
DPS employees in their personal capacities for not timely responding to a public records request.
Further, the Commission improperly sanctioned Jones and Younger for providing legal
advice. Neither Jones or Younger were the final decision makers who denied the public records
request. The MPRA only allows for sanctions against the person that made the decision to deny
the request.
Finally, the Court must interpret the MPRA to provide guidance as to whether a
Case Facts
This case concerns the request of Joel Bomgar to Mississippi Bureau of Narcotics
Director John Dowdy to answer a series of questions about drug policy. After meeting in person
to discuss various issues, Mr. Bomgar sent an email on June 12, 2017, with a list of questions.
See Email (R. 187-191). Dir. Dowdy began compiling a response and submitted it to the core
management team at the Department of Public Safety for their review on August 3, 2017. See
Email (R. 108). Part of the core executive group is the legal counsel for the Department of
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Public Safety Shannon Jones. (R. 108). The email stated that it was sent to them for their
review. (R. 108). The Commissioner determined that it was not appropriate for the Department
to answer such questions. He felt that it was the legislature’s prerogative to set policy for the
state. It was communicated to Mr. Bomgar that the questions would not be answered. In
response, Mr. Bomgar sent the Department of Public Safety a public records request by email on
November 3, 2017. (R. 192). Mr. Bomgar emailed his request to the Department of Public
In follow up emails between Mr. Bomgar and Ms. Davis on November 17, 2017, she
informed him that she was not the person to handle public records requests and that he needed to
make contact with DPS Attorney Jim Younger. (R. 176). Mr. Bomgar spoke with Jim Younger
on November 21, 2017. During this meeting, Mr. Younger requested additional time to respond
to the public records request due to the Thanksgiving holidays. Mr. Bomgar agreed. (R.105).
On November 27, 2017, Mr. Younger prepared a legal memorandum concerning the
Department’s options to produce Dowdy’s draft answers. He provided two options to the
Department. The first was to produce the records, and the second was to not produce. (R. 105)
and (Supp.R., Video Pt. 1, 31:40-32:00). The Department of Public Safety decided not to furnish
the responses because they are not public records subject to disclosure. (R. 105). See Fisher
(Supp. R. Video Part 1, 11:33-11:37); see also Jones (Supp. R. Video Part 1, 46:45-47:15). Jim
Younger did not make the decision to deny the public records request. (Supp. R. Video Part 1,
34:01-34:07)
On November 29, 2017, Mr. Younger, as lawyer for the Department of Public Safety,
prepared a denial letter on behalf of the Department of Public Safety addressed to Mr. Bomgar.
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(R. 102-103). Mr. Bomgar called on the same date inquiring about the pubic records request,
and Mr. Younger emailed him a copy of the denial letter. (R. 177). The next day, Mr. Younger
also mailed a copy of the letter denying Mr. Bomgar’s public records request. (R. 177).
On December 12, 2017, Mr. Bomgar filed a public records complaint with the Mississippi
Ethics Commission against DPS Chief of Staff Mandy Davis. (R. 179-180). On December 13,
2017, the Notice of Public Records Complaint was sent to Mandy Davis by the Ethics
Commission. (R. 178). Neither Jim Younger, Shannon Jones, nor Marshall Fisher received any
notice of allegations against them from the Ethics Commission, nor did they receive notice
informing them they could be subjected to sanctions under the MPRA by the Ethics Commission.
On December 21, 2017, the Department of Public Safety responded to the public records
complaint through its attorney Jim Younger. (R. 176-177) Younger did not make the decision
On February 2, 2018, the Mississippi Ethics Commission issued its Preliminary Findings
of the Ethics Commission. (R. 205) and (R. 171-175). Shannon Jones and Marshall Fisher did
not receive any notice by way of the preliminary findings that they were subject to sanctions in
their personal capacity. The Commission recommended sanctions against Mandy Davis and Jim
Younger. Younger had no notice of allegations or possible sanctions prior to the preliminary
On February 20, 2018, the Department submitted its Objections to Preliminary Report
and Recommendations by Mandy Davis and Jim Younger. (R. 085-092). A hearing was set for
April 11, 2018, before the Ethics Commission’s Executive Director Tom Hood. Mr. Hood
entered a pre-hearing order on March 28, 2018. (R. 80). The only parties to the hearing are the
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Department of Public Safety and Joel Bomgar. See Style of Cause of Action (R. 80). Mr. Hood
issued subpoenas on behalf of the Ethics Commission commanding the presence and testimony
Since the Complaint is against the Department of Public Safety, Younger, Jones, and
Fisher are not parties to the proceedings before the ethics commission. They have not been
served with process or notice of any allegations against them by the Ethics Commission.1 The
hearing was before Mr. Hood was held on April 11, 2018, and Mr. Hood heard testimony from
Mr. Bomgar, Commissioner Fisher, Shannon Jones, Jim Younger, and Mandy Davis.
At the conclusion of the hearing after all evidence had been received by the hearing
officer, Mr. Bomgar’s counsel made an ore tenus motion to add Commissioner Fisher and
Shannon Jones as parties subject to being sanctioned by the Commission. (Supp. R. Video Part
opportunity to present a defense, or to prepare a defense. By lying in wait until after the hearing
had concluded to make a motion to sanction Jones and Fisher, they were deprived all required
due process, and the Ethics Commission violated their Constitutional rights.
On June 1, 2018, the Ethics Commission entered its Final Order which sanctioned both
Jim Younger and Shannon Jones for improperly denying a public records request and for their
delay in responding to a public records request. (R. 231-237). The Department of Public Safety
appealed the final order of the Ethics Commission. After the Department appealed, the Attorney
1
Even though Jim Younger was recommended for sanctions in the preliminary report, he was never made
a party to the proceedings, served with notice, nor advised that he was subject to sanctions prior to the
report.
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General of the State of Mississippi, Jim Hood, sent a letter to the Ethics Commission requesting
that the Commission reconsider its finding. As the Attorney General, he felt it necessary to point
out the Commission’s failure to provide due process to Jim Younger and Shannon Jones. (R.
238-241). The Commission failed to take action to remedy their blatant denial of due process.
(R. 242).
Based on the foregoing facts, the Department of Public Safety is appealing the findings of
the Ethics Commission and requesting the sanctions against Jim Younger and Shannon Jones be
set aside. Their actions did not violate the public records act, the communications were
privileged and not subject to disclosure under the MPRA, and the Commission denied them due
process.
STANDARD OF REVIEW
Statutory authority mandates that an appeal of a decision of the Ethics Commission to the
Chancery Court shall be de novo. Miss. Code 25-61-13. De novo means “anew” or “afresh.”
Black's Law Dictionary 226 (5th ed.1983). De novo review allows the court to reexamine the
evidence decided by the finder of fact. See Cockrell v. Pearl River Valley Water Supply Dist.,
865 So.2d 357, 360 (Miss.2004); see also Conrod v. Holder, 825 So.2d 16, 18 (Miss.2002).
A court will reverse the decision of an administrative agency only if the decision (1) was
unsupported by substantial evidence; (2) was arbitrary or capricious; (3) was beyond the power of
the administrative agency to make; or (4) violated the complaining party's statutory or
constitutional right. Hinds Cty. Sch. Dist. Bd. of Trs. v. R.B. ex rel. D.L.B., 10 So.3d 387, 394–95
(¶ 17) (Miss. 2008). However, unlike the appeal in Hinds, the Chancery is statutorily required to
conduct this review. Because this is a statutory de novo review, the court shall review the
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evidence and make its own determination, similar to the standard of review used by the Supreme
Court when reviewing judicial performance sanctions. Miss. Comm'n on Judicial Performance
v. Sutton, 985 So.2d 322, 326 (Miss.2008) The de novo standard of review requires the Chancery
Court to render its own independent judgment as to the facts and evidence of the case.
As this case also requires the interpretation of the Mississippi Public Records Act and
other statutory provisions, the Chancery Court shall review these issues de novo, and shall give
Supreme Court has recently rebuked the previous deference standard to administrative agencies
because it violates Mississippi’s Constitution and the separation of powers. King v. Mississippi
Military Department, 245 So.3d 404 (Miss. 2018). The Constitution provides for the Courts, and
ARGUMENT
I. The MPRA does not authorize the Ethics Commission to render a civil
judgment against a non-party in violation of their due process rights.
The Ethics Commission erroneously entered a judgment against DPS Attorneys Shannon
Jones and Jim Younger, in their individual capacities, pursuant to Miss. Code Ann. §25-61-15
for their “acting in bad faith by failing to respond to a valid public records request in a timely
manner, by asserting a patently fallacious interpretation of the statutory definition – that the
document was not a public record simply because it was not a document the public body was
required to maintain, and by purposefully using that incorrect interpretation to refuse to produce
the requested document . . . .” (R. 237) The fundamental error in the Ethics Commission’s Final
Order is that neither Jones nor Younger were a party to the action and neither was given their
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required due process. “A decree in equity cannot adjudicate the rights or liabilities of persons not
parties to the proceeding.” Baker ex rel. Williams v. Williams, 503 So.2d 249, 254 (Miss. 1987.) The
entry of that judgment against them violates their right to due process. The Ethics Commission
charged chief of staff Mandy Davis with violating the Mississippi Public Records Act. See
Notice (R. 178). The Notice was addressed to Mandy Davis and stated:
Please find enclosed a copy of the above referenced Public Records Complaint
alleging you illegally denied or failed to respond to a request for public records.
Jim Younger, Shannon Jones, and Marshall Fisher were never served with a complaint or notice
against them, and the only notice provided by the Commission explicitly named Mandy Davis
and no one else. In fact, Counsel for Joel Bomgar made a motion at the end of the April 11, 2018
hearing, after all testimony had been heard, to sanction Marshall Fisher and Shannon Jones. See
In McDaniel v. Ritter, the Mississippi Supreme Court listed four distinct predicates that
must be established before any court [or administrative body] has authority to make an
adjudication affecting the important rights of a party, two of which are absent here. 556 So.2d
303, 308 (Miss. 1990). The two absent predicates are “a reasonable advance notice of the trial or
hearing and a meaningful opportunity to be heard in response” and that the defendant “must have
been served with process.” Id. It is not disputed Younger, Fisher and Jones were never a party to
this civil action and were therefore never served with process. As this Court stated in Richard v.
jurisdiction or acted in a manner inconsistent with due process.” Richard v. Garma-Fernandez, 121
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So.3d 929, 933 (Miss. App. 2013)(citing Overbey v. Murray, 569 So.2d 358,359 (Miss. 1990)). Most
recently, the Mississippi Court of Appeals held that the imposition of personal sanctions under
the MPRA is void if the person was never given notice of the possibility of sanctions.
Mississippi Dep't of Audit v. Gulf Publ'g Co., 235 So. 3d 1452, 1462–63 (Miss. Ct. App.), reh'g
denied (Aug. 23, 2016), cert. granted, 204 So. 3d 289 (Miss. 2016), and judgment rev'd in part,
vacated in part, 236 So. 3d 32 (Miss. 2017)(Emphasis Added).
“The Fourteenth Amendment to the U.S. Constitution and Section Fourteen of the
Mississippi Constitution prohibit deprivation of property without due process of law.” Carl
Ronnie Daricek Living Trust v. Hancock County ex rel. Bd. of Supr’s, 34 So. 3d 587, 594 (Miss. 2010);
see also Miss. Const., art. 3, § 14; U.S. Const., amend. XIV. “Due process” means that, at a very
minimum, every citizen must be given notice and provided a meaningful opportunity to be heard
before the government may deprive him of a constitutionally protected interest. Logan v.
Zimmerman Brush Co., 455 U.S. 422, 428 (1982); Aikens v. Miss. Dept. of Revenue, 70 So. 3d 204, 208
(Miss. 2011). Any judgment entered in violation of constitutional due process is void and
unenforceable. Both the United States and Mississippi Constitutions guarantee a right to due
process before an administrative agency. See U.S. Const. amend. XIV § 1; Miss. Const. art. 3, §
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14. Administrative proceedings are to be “conducted in a fair and impartial manner, free from
any just suspicion or prejudice, unfairness, fraud, or oppression.” Miss. State Bd. of Health v.
Johnson, 197 Miss. 417, 417, 19 So.2d 445, 447 (1944). The minimum procedural due-process
requirements an administrative board must afford to parties are notice and an opportunity to be
heard. CLC of Biloxi, LLC v. Mississippi Div. of Medicaid, 238 So. 3d 16, 23 (Miss. Ct. App.
2018)(citing Booth v. Miss. Emp't Sec. Comm'n, 588 So.2d 422, 428 (Miss. 1991)). The Ethics
Commission failed to provide Jones and Younger with the required due process.
testimony. She was never served or provided notice that she could be subjected to sanctions by
the Ethics Commission for her testimony. “An elementary and fundamental requirement of due
process in any proceeding which is to be accorded finality is notice reasonably calculated, under
the circumstances, to apprise interested parties of the pendency of the action and afford them the
opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S.
306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). Failure to give notice violates “the most
rudimentary demands of due process of law.” Armstrong v. Manzo, 380 U.S. 545, 550, 85 S.Ct.
Jones was deprived her due process right to notice, to prepare and adequately defend
herself, and the right to be informed of any charges levied against her. The record evidence in
this case is conclusive as to the due process that was denied Attorney Jones. The Complaint and
Notice of a Public Records Act violation was sent to and only named Mandy Davis as a party,
and it only alleged a violation by Mandy Davis. No other employees of the Department of Public
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Safety were named. (R. 178). As such, she was the only person that was provided the
Constitutionally mandated due process. Jones was never given a notice, a complaint, or any
other documentation by the Ethics Commission that she would be subject to sanctions for her
testimony pursuant to the subpoena issued by the Commission. (See Subpoena R. 82). Further,
at no time during her testimony at the hearing was Jones informed that she was subject to
sanctions. It was only after the hearing concluded that Counsel for Bomgar made the ore tenus
subpoena and was never provided any due process which would allow for him to be individually
Commissioner Fisher, but the end result is still the same. He was denied due process by the
Ethics Commission. Attorney Younger was never given notice of a complaint against him in his
individual capacity. He responded to the Complaint against Mandy Davis on behalf of the
Commission and cooperated at all times unaware that he was subject to being sanctioned due to
Attorney Younger was sanctioned by the Commission in its preliminary finding. This
finding was entered without providing Younger any notice that he was subject to being
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Where a person has been deprived of property in a manner contrary to the most basic
tenets of due process, “it is no answer to say that in his particular case due process of law would
have led to the same result because he had no adequate defense upon the merits.” Coe v. Armour
Fertilizer Works, 237 U.S. 413, 424, 35 S.Ct. 625, 629, 59 L.Ed. 1027 (1915). As observed in
Armstrong v. Manzo, 380 U.S., at 552, 85 S.Ct., at 1191, only “wip[ing] the slate clean ... would
have restored the petitioner to the position he would have occupied had due process of law been
accorded to him in the first place.” The Due Process Clause demands no less in this case.
Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 86–87, 108 S. Ct. 896, 900, 99 L. Ed. 2d 75
(1988).
II. The Responses of Director Dowdy were protected by the Attorney Client
Privilege and not subject to production under the MPRA.
The email from Dir. Dowdy to the core management group which included Attorney
Shannon Jones was protected by attorney client privilege. “The attorney-client privilege is the
oldest of the privileges for confidential communications known to the common law.” Hewes v.
Langston, 853 So.2d 1237, 1244 (Miss.2003) (citing Upjohn Co. v. United States, 449 U.S. 383,
389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981)). “Its purpose is to encourage full and frank
communication between attorneys and their clients and thereby to promote broader public
interests in the observance of law and administration of justice.” Id. at 1249. “That purpose, of
course, requires that clients be free to make full disclosure to their attorneys.” United States v.
Zolin, 491 U.S. 554, 562, 109 S.Ct. 2619, 105 L.Ed.2d 469 (1989). In its version of the
attorney-client privilege, Mississippi follows the uniform rule adopted by a majority of the states.
Rule 502(b) of the Mississippi Rules of Evidence defines the privilege as follows:
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Miss. R. Evid. 502(b); see also Jackson Med. Clinic for Women, P.A. v. Moore, 836 So.2d 767,
771 (Miss.2003); see also Miss. Rules of Professional Conduct R. 1.6.
This Court has interpreted the scope of the attorney-client privilege under Mississippi law
broadly, stating:
the privilege relates to and covers all information regarding the client
received by the attorney in his professional capacity and in the course of
his representation of the client. Included are communications made by the
client to the attorney and by the attorney to the client. In that sense it is a
two-way street.
The Attorney Client Privilege has been codified as an exception to the Mississippi Public
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Further: “[t]he privilege does not require the communication to contain purely legal
analysis or advice to be privileged.” Dunn v. State Farm Fire & Cas. Co., 927 F.2d 869, 875 (5th
Cir.1991) (applying Mississippi law). “Instead, if a communication between a lawyer and client
would facilitate the rendition of legal services or advice, the communication is privileged.” Id. at
875.
It is not disputed in the record that Director Dowdy’s email of proposed responses was
sent to the core management group of the Department of Public Safety for review, which
included Attorney Shannon Jones who provides legal analysis and advice to the Department.
See Email R. 108. By including and requesting that legal counsel review the proposed responses
for the Department of Public Safety, they are privileged until released by the Department. The
purpose for sending a proposal to legal counsel for review is by definition seeking legal advice
on the issue.
As a matter of public policy and law, state executive leaders must be allowed to maintain
confidential and frank conversations with their attorneys for the purpose of obtaining legal
advice. Submitting proposals to their attorneys are protected under the attorney client privilege
and not subject to production. To hold otherwise would destroy the privilege for state agencies
by subjecting legal strategy, legal memorandums, proposed legal strategies, etc, subject to
production under the Mississippi Public Records Act. To sanction Jones and Younger for
providing legal advice to their clients interpreting statutes on behalf of their agency would
provide a chilling effect on all state leaders and their ability to consult with their attorneys over
The Ethics Commission has misinterpreted the attorney-client privilege and misapplied it
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to the facts of this case. The document was exempt from disclosure and the failure to produce it
cannot form the basis for sanctions against Jones and Younger because they were not the
decision maker.
III. The Public Records Act does not allow for individual sanctions for failing to
timely respond to a request.
The Final Order of the Mississippi Ethics Commission found Shannon Jones and Jim
Younger to be in violation of the Mississippi Public Records Act “by failing to respond to Rep.
Joel Bomgar’s public records request dated November 3, 2017, within the period of time required
by statute.” (R. 237). The Commission further found that Jones and Younger have “clearly acted
in bad faith by failing to respond to a valid public records request in a timely manner. . . .” (R.
237). As a result, the Ethics Commission imposed a civil penalty in the amount of $100.00
against both Jones and Younger in their personal capacities. (R. 237).
Mississippi law does not provide for government officials to be sanctioned in their
individual capacities for not timely responding to a public records request. The law only allows
two circumstances for which an official can be sanctioned. The first is for improperly denying a
public records request. The second circumstance is for charging an unreasonable fee for
Any person who shall deny to any person access to any public record which is not
exempt from the provisions of this chapter or who charges an unreasonable fee for
providing a public record may be liable civilly in his personal capacity in a sum
not to exceed One Hundred Dollars ($100.00) per violation, plus all reasonable
expenses incurred by such person bringing the proceeding.
“If personal liability is to be imposed upon appellants, such liability necessarily is in the
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nature of a penalty. Since penalties are not favored in law, no penalty will be imposed unless it
shall be clearly provided for, and statutes will be strictly construed against the imposition of a
The same results would be reached under the similar rule of statutory construction
employed by the courts that “penal statutes should be strictly construed against the governmental
Inc., 235 So. 2d 684, 688 (Miss. 1970). As always, the courts should try to interpret a statute so
as to implement the legislative intent, but provisions imposing penalties for failure to comply
should be strictly construed against the state and liberally construed in favor of those who the
penalty is sought. Mississippi Ins. Comm'n v. Savery, 204 So.2d 278 (Miss.1967); Kelley v.
Welborn, 217 Miss. 16, 63 So.2d 413 (1953); Mississippi State Bd. of Dental Examiners v.
Mandell, 198 Miss. 49, 21 So.2d 405 (1945); Harris v. State, 179 Miss. 38, 175 So. 342 (1937);
In Re Weathers, 159 Fla. 390, 31 So.2d 543 (1947); R. S. Blome Co. v. Ames, 365 Ill. 456, 6
N.E.2d 841 (1937); Burley v. City of Annapolis, 182 Md. 307, 34 A.2d 603 (1943); State ex rel.
Atkins v. Missouri State Bd. of Accountancy, 351 S.W.2d 483 (Mo.App.1961); Robinson v.
Missouri Real Estate Comm'n, 280 S.W.2d 138 (Mo.App.1955); Roberts v. State Bd. of
Embalmers and Funeral Directors, 78 N.M. 536, 434 P.2d 61 (1967); State ex rel. Oklahoma
State Bd. of Embalmers and Funeral Directors v. Guardian Funeral Home, 429 P.2d 732
(Okl.1967).
nature, the statute is strictly construed against the state. The statute does not provide for
individual sanctions against employees for not timely responding. As such, the Commission has
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acted outside of its statutory authority by sanctioning Jones and Younger for “failing to respond
to Rep. Joel Bomgar’s public records request dated November 3, 2017, within the period of time
required by statute.” (R. 237). As this impermissible justification formed part of the basis for
the sanctions against these two individuals, the sanction should be overturned.
IV. The Commission’s findings that Jim Younger or Shannon Jones violated the
Mississippi Public Record’s Act time requirements is unsupported by the
record.
The record shows that Representative Bomgar emailed his public records request to
Mandy Davis on November 3, 2017. 192. There was no response to his request; therefore, he
followed up with Davis by email on November 17, 2017. (R. 192). Davis responded by email
informing Bomgar that she was unable to “accommodate your request through this email.” (R.
192). She instructed him to make contact with Jim Younger in the legal department. (R.192).
November 21, 2017, Bomgar granted Younger additional time to respond due to the
holidays. (R. 105). Because Bomgar granted additional time for Younger to respond, there is no
violation of the MPRA. Younger sent the response of the Department of Public Safety on
November 29, 2017. Due to the agreement between the parties, Jones and Younger could not be
sanctioned for failing to timely respond to Mr. Bomgar’s public records request.
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Even if the Ethics Commission is allowed to render a civil sanction against a non-
party in violation of their right to due process, the Ethics Commission misapplied and
misinterpreted the MPRA as it relates to Jones and Younger. Miss. Code Ann. §25-61-15 sets
Any person who shall deny to any person access to any public
record which is not exempt from the provisions of this chapter may
be liable civilly in a sum not to exceed One Hundred Dollars
($100.00) per violation, plus all reasonable expenses incurred by
such person in bringing the proceeding.
First, the record was exempt from production under the attorney-client privilege. Second,
the Commission found that the term “person” in Miss. Code Ann. §25-61-15 are the employees
tasked with responding to the request, not the ultimate decision maker. (R. 237). The
commission found that Miss. Code Ann. §25-61-15 applied to attorneys Shannon Jones and Jim
Younger because they offered legal advice to the agency they represented. Younger was tasked
with writing a letter on behalf of the of the Department and did not make the decision to deny the
request. (Supp. R. Video Pt.1 ). The Commission improperly found that the sanction statute
applied to Younger and Jones due to the erroneous belief that because Jones and Younger were
attorneys providing legal advice, they became the decision maker subject to sanctions. The
Commissioner Fisher in his testimony best summed up the position of Jones and
Younger. (Supp. R. Video Part 2, 40:30). He stated they should not be sanctioned because they
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were following orders. Id. Implicit in his testimony is the fact that Jones and Younger did not
make the decision to deny the request. As counsel for DPS, they provided legal analysis. While
Jones and Younger dispute the legal interpretations of the Commission, it does not change their
role in this saga from advisory to decision making. As all attorneys for various agencies and
institutions in state government, they are tasked with examining facts and interpreting statutes so
that the officials they represent can make informed decisions. Right or wrong, the final decision
belongs to the client, not the attorney. As such, the attorneys are not the decision makers who
VI. The proposed questions and answers from Representative Bomgar are not
public records required to be maintained by the Department for production.
The final issue on appeal is whether the proposed responses of Director Dowdy are a
public record. This issue requires the Court to interpret Mississippi Code 25-61-3. The lawyers
for the Department of Public Safety and the Mississippi Ethics Commission have come to
Starting with the definition provided in the statute, a public record is:
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.
The pertinent part of this definition is the characteristic of what was created by Dir.
Dowdy. Starting at the end of the definition, it is not in dispute that the proposed answers to
Representative Bomgar’s questions are not records required to be maintained by any public body.
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Had Dir. Dowdy hit “delete” and disposed of his draft, there would be no repercussion or penalty
The first part of the definition which defines a public record as “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” also does not apply to the
draft responses. As a draft, this document was not 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 the Department of Public Safety. The Commission deemed the draft of
proposed responses as public records without consideration for the nature and character of the
draft responses. The Commission found “Dowdy’s written responses to questions posed by a
legislator about a known public safety crisis are certainly documentary materials used, prepared,
possessed and retained in the conduct, transaction, or performance of the business, work, duty,
and function function of the Mississippi Bureau of Narcotics and its parent agency, the
The draft of proposed responses were not part of any transaction, duty, work, or function
of the Bureau of Narcotics. There was no duty to answer the questions. It is not a function of the
Bureau of Narcotics to answer questions in this manner. It is not a transaction of the bureau, nor
is it one of their duties to answer such questions. In determining whether or not it was a proper
function, duty, or work of the Bureau to answer such questions, the Commissioner determined
that it was not the duty, work, or function of the Bureau of Narcotics or Dir. Dowdy to provide
such answers and policy. His interpretation was this was outside of the scope of responsibility
for the Bureau of Narcotics and such questions should not be answered in this form.
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The question for this Court becomes one of interpretation of the statute and its application
to draft responses which were outside of the normal job functions of the Director of the Bureau
of Narcotics. The Department submits that the draft is not a public record required to be
maintained, it was not created to comport with a work duty or function of the Bureau of
Narcotics, and as a draft and not a final product, it is not subject to the MPRA.
Because the issue of whether a proposed draft is a public record under the MPRA must be
decided by the Court and that the two state agencies arrived at different conclusions regarding the
proposed draft, the Commission abused its discretion in sanctioning DPS Attorneys Shannon
CONCLUSION
For the reasons stated herein, the Department of Public Safety respectfully requests this
Court reverse the sanctions against DPS Attorneys Shannon Jones and Jim Younger. In
addition, the Department respectfully request this Court find that the proposed answers are
protected by the Attorney-Client privilege and that the Commission violated the due process
rights of Shannon Jones and Jim Younger. Further, the Department requests this Court find that
the proposed draft answers of Director Dowdy are not public records under the MPRA.
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CERTIFICATE OF SERVICE
I, Tommy Whitfield, Counsel for the Mississippi Department of Public Safety, do hereby
certify that I have this day electronically filed the above and foregoing with the Clerk of the Court
using the MEC system which sent notification of such filing to the following:
/s/Tommy Whitfield
Tommy Whitfield
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