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Case: 25CH1:18-cv-00872 Document #: 15 Filed: 12/20/2018 Page 1 of 28

No. G2018-872 T/4

IN THE CHANCERY COURT OF HINDS COUNTY, MISSISSIPPI

The Mississippi Department of Public Safety


APPELLANT

V.

Joel Bomgar
APPELLEE

Appealed from the Mississippi Ethics Commission


Cause No. R-17-062

BRIEF OF THE APPELLANT

Filed By:

Tommy Whitfield, MSB #102482


tommy@whitfieldlaw.org
On Behalf of the Mississippi Department of Public Safety
Whitfield Law Group, PLLC
660 Lakeland East Drive, Suite 200
Flowood, Mississippi 39232
Telephone: (601) 863-8221
Facsimile: (601) 863-8231
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CERTIFICATE OF INTERESTED PARTIES

The undersigned counsel of record certifies that the following listed persons have an

interest in the outcome of this case.

The Mississippi Department of Public Safety (DPS), Appellant


DPS Commissioner Marshall Fisher
DPS Chief of Staff Mandy Davis
DPS Executive Counsel Shannon Jones
DPS Executive Counsel Jim Younger

Tommy Whitfield, Attorney for Appellant

Joel Bomgar, Appellee

Leonard Van Slyke, Attorney for Appellee


Matt Allen, Attorney for Appellee

/s/Tommy Whitfield
Tommy Whitfield
Attorney for Appellant/DPS

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TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PARTIES.................................................................................i

TABLE OF CONTENTS.................................................................................................................ii

TABLE OF AUTHORITIES..........................................................................................................iii

STATEMENT OF THE ISSUES.....................................................................................................1

STATEMENT OF THE CASE........................................................................................................2

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

II. The Responses of Director Dowdy were protected by the Attorney


Client Privilege and not subject to production under the MPRA...................12

III. The Public Records Act does not allow for individual sanctions for
failing to timely respond to a request.................................................................15

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..................................................................................17

V. The Commission misapplied and misinterpreted Miss. Code Ann.


§25-61-15 as it relates to Jones and Younger....................................................18

VI. The proposed questions and answers from Representative Bomgar


are not public records required to be maintained by the
Department for production.................................................................................19

CONCLUSION..............................................................................................................................21

CERTIFICATE OF SERVICE......................................................................................................22

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TABLE OF AUTHORITIES

Cases:

Aikens v. Miss. Dept. of Revenue, 70 So. 3d 204, 208 (Miss. 2011)...............................................9

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

Barnes v. State, 460 So.2d 126, 131 (Miss.1984)..........................................................................13

Booth v. Miss. Emp't Sec. Comm'n, 588 So.2d 422, 428 (Miss. 1991)..........................................10

Burley v. City of Annapolis, 182 Md. 307, 34 A.2d 603 (1943)....................................................16

Carl Ronnie Daricek Living Trust v. Hancock County ex rel. Bd. of Supr’s,
34 So. 3d 587, 594 (Miss. 2010)......................................................................................................9

CLC of Biloxi, LLC v. Mississippi Div. of Medicaid, 238 So. 3d 16, 23


(Miss. Ct. App. 2018)....................................................................................................................10

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

Conrod v. Holder, 825 So.2d 16, 18 (Miss.2002)............................................................................6

Dunn v. State Farm Fire & Cas. Co., 927 F.2d 869, 875 (5th Cir.1991)......................................14

Entrican v. King, 289 So. 2d 913, 914 (Miss. 1974).....................................................................16

Harris v. State, 179 Miss. 38, 175 So. 342 (1937)........................................................................16

Hewes v. Langston, 853 So.2d 1237, 1244 (Miss.2003)................................................................12

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

In Re Weathers, 159 Fla. 390, 31 So.2d 543 (1947)......................................................................16

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Kelley v. Welborn, 217 Miss. 16, 63 So.2d 413 (1953).................................................................16

Jackson Med. Clinic for Women, P.A. v. Moore, 836 So.2d 767, 771 (Miss.2003)......................13

Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982)...........................................................9

McDaniel v. Ritter, 556 So.2d 303, 308 (Miss. 1990).....................................................................8

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

Mississippi Ins. Comm'n v. Savery, 204 So.2d 278 (Miss.1967)...................................................16

Mississippi Milk Comm'n v. Winn-Dixie Louisiana, Inc., 235 So. 2d 684,


688 (Miss. 1970)............................................................................................................................16

Mississippi State Bd. of Dental Examiners v. Mandell, 198 Miss. 49,


21 So.2d 405 (1945).......................................................................................................................16

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

Overbey v. Murray, 569 So.2d 358,359 (Miss. 1990).....................................................................9

Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 86–87, 108 S. Ct. 896, 900,
99 L. Ed. 2d 75 (1988)...................................................................................................................12

Richard v. Garma-Fernandez, 121 So.3d 929, 933 (Miss. App. 2013)...........................................8

Roberts v. State Bd. of Embalmers and Funeral Directors, 78 N.M. 536,


434 P.2d 61 (1967).........................................................................................................................16

Robinson v. Missouri Real Estate Comm'n, 280 S.W.2d 138 (Mo.App.1955)..............................16

R. S. Blome Co. v. Ames, 365 Ill. 456, 6 N.E.2d 841 (1937).........................................................16

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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

Statutes and Rules:

U.S. Const., amend. XIV.................................................................................................................9

Miss. Const., art. 3, § 14..................................................................................................................9

Mississippi Code 25-1-102............................................................................................................13

Miss. Code. Ann. § 25-61-5 (West)..........................................................................................15,17

Miss. Code Ann. §25-61-15........................................................................................................7,18

Miss. R. Evid. 502(b).....................................................................................................................13

Miss. Rules of Professional Conduct R. 1.6..................................................................................13

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STATEMENT OF THE ISSUES

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.

3) The Ethics Commission exceeded its statutory authority by sanctioning


Shannon Jones and Jim Younger for failing to timely respond to a public
records request. The statute does not allow for sanctions against individuals
for not timely responding to a request.

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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STATEMENT OF THE CASE

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

government agency is required to maintain a proposed drafts of documents as public records.

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

Safety’s Chief of Staff Mandy Davis. (R. 192).

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

to deny the request. He merely drafted the letter. (R. 105).

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

report and recommendation.

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

of Attorney Shannon Jones and Commissioner Marshall Fisher. (R. 81-82).

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.

The Ore Tenus Motion

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

2, 37:00-37:20). They received no pre-hearing notice, no warning during the hearing, no

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

no deference to the interpretation of statutes by the Mississippi Ethics Commission. The

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

the Courts alone, to interpret statutes. Id.

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.

See Notice of Public Records Complaint (R. 178) (Emphasis Added).

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

Supp. R. Video Part 2, 37:00.

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.

Garma-Fernandez, “a judgment is void if the rendering court lacked personal or subject-matter

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.

The Fourteenth Amendment to the United States Constitution and Section


Fourteen of the Mississippi Constitution prohibit deprivation of property without
due process of law. “Generally, due process requires notice and a meaningful
opportunity to be heard.” Akins v. Miss. Dep't of Revenue, 70 So.3d 204, 208 (¶
12) (Miss.2011). Furthermore, the putative target of any claim in a civil lawsuit is
always entitled to process, even if independent knowledge of the lawsuit exists.
Sanghi v. Sanghi, 759 So.2d 1250, 1257 (¶ 33) (Miss.Ct.App.2000).
None of the individuals were named in either lawsuit in their individual capacity
or given notice that they could potentially be fined. By failing to provide the
individuals with notice of the alleged MPRA violations and charges to be
adjudicated against them, the chancellor violated their due-process rights. For this
reason, the fines are void. See Adams v. Miss. State Oil & Gas Bd., 80 So.3d 869,
872 (¶ 15) (Miss.Ct.App.2012) (“A judgment is void only if the court that
rendered it ... acted in a manner inconsistent with due process of law.”).

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.

Attorney Shannon Jones:

Jones appeared at the hearing pursuant to a Subpoena Ad Testificandum to present

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.

1187, 1190, 14 L.Ed.2d 62 (1965).

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

motion to sanction Jones. See Supp. R. Video Part 2, 37:00.

Commissioner Marshall Fisher:

Like Attorney Jones, Commissioner Fisher appeared at the hearing pursuant to a

subpoena and was never provided any due process which would allow for him to be individually

sanctioned. But unlike Jones, the Commissioner was never sanctioned.

Attorney Jim Younger:

Attorney Younger is in a procedurally different posture that Attorney Jones and

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

Department of Public Safety. He provided correspondence and documents requested by the

Commission and cooperated at all times unaware that he was subject to being sanctioned due to

the lack of notice provided by the Ethics Commission.

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

sanctioned or an opportunity to defend himself against said sanctions.

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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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(b) General Rule of Privilege. A client has a privilege to refuse to disclose


and to prevent any other person from disclosing confidential
communications made for the purpose of facilitating the rendition of
professional legal services to the client (1) between himself or his
representative and his lawyer or his lawyer's representative, (2) between
his lawyer and the lawyer's representative, (3) by him or his representative
or his lawyer or a representative of the lawyer to a lawyer or a
representative of a lawyer representing another party in a pending action
and concerning a matter of common interest therein, (4) between
representatives of a client or between the client and a representative of the
client, or (5) among lawyers and their representatives representing the
same client.

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.

Barnes v. State, 460 So.2d 126, 131 (Miss.1984) (emphasis added).

The Attorney Client Privilege has been codified as an exception to the Mississippi Public

Records Act by Mississippi Code 25-1-102 which states:

Records in the possession of a public body, as defined by paragraph (a) of


Section 25-61-3, which represent and constitute the work product of any
attorney, district attorney or county prosecuting attorney representing a
public body and which are related to litigation made by or against such
public body, or in anticipation of prospective litigation, including all
communications between such attorney made in the course of an
attorney-client relationship, shall be exempt from the provisions of the
Mississippi Public Records Act of 1983.

Miss. Code. Ann. § 25-1-102 (West).

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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

public policy positions.

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

providing a public record. The law states:

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.

Miss. Code. Ann. § 25-61-15 (West).

“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

penalty.” Entrican v. King, 289 So. 2d 913, 914 (Miss. 1974).

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

body attempting to enforce a penalty. . . . “ Mississippi Milk Comm'n v. Winn-Dixie Louisiana,

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).

Because the imposition of sanctions by the Mississippi Ethics Commission is penal in

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).

Unless there is mutual agreement of the parties, or the information requested is


part of ongoing negotiations related to a request for competitive sealed proposals,
in no event shall the date for the public body's production of the requested records
be any later than fourteen (14) working days from the receipt by the public body
of the original request.

Miss. Code. Ann. § 25-61-5 (West) (Emphasis added).

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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V. The Commission misapplied and misinterpreted Miss. Code Ann. §25-61-15


as it relates to Jones and Younger.

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

forth a penalty for violating the MRPA and provides:

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.

Miss. Code Ann. §25-61-15 (Rev. 2011) (emphasis added).

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

Commission is wrong on all accounts.

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

improperly denied a public records request.

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

opposite conclusions on this issue.

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.

Miss. Code. Ann. § 25-61-3 (West).

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

under the MPRA or any other statute.

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

Department of Public Safety.

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

Jones and Jim Younger.

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.

RESPECTFULLY SUBMITTED, this the 20th day of December, 2018.

/s/ Tommy Whitfield


Tommy Whitfield, MSB #102482
Attorney for Appellant
The Mississippi Department of Public Safety

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Tommy Whitfield, MSB #102482


tommy@whitfieldlaw.org
Whitfield Law Group, PLLC
660 Lakeland East Drive, Suite 200
Flowood, Mississippi 39232
Telephone: (601) 863-8221
Facsimile: (601) 863-8231

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:

Leonard D. Van Slyke, Jr.


Matthew W. Allen
190 East Capitol Street
The Pinnacle Building, Suite 100
Jackson, Mississippi 39201
Attorney for Joel Bomgar, Appellee

THIS the 20th day of December, 2018.

/s/Tommy Whitfield
Tommy Whitfield

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