§ 25-4-17. Duties of commission.
The commission shall, in addition to any other duties prescribed by law:
(i) (i) Have the authority, in its discretion, to issue advisory opinions with regard to any of such standards of conduct set forth in Article 3 of this chapter. When any public official requests in writing such an advisory opinion and has stated all the facts to govern such opinion, and the commission has prepared and delivered such opinion with references thereto, there shall be no civil or criminal liability accruing to or against any such public official who, in good faith, follows the direction of such opinion and acts in accordance therewith unless a court of competent jurisdiction, after a full hearing, shall judicially declare that such opinion is manifestly wrong and without any substantial support. No opinion shall be given or considered if said opinion would be given after judicial proceedings are commenced. (Emphasis mine.)
I've emphasized the portion of the Ethics Commission's enabling statute above because that's what's at the heart of the latest move by Republican Gov. Phil Bryant to force six Republican House members to vote against Medicaid expansion and for reauthorization at current levels. On June 14, the Ethics Commission issued opinions purporting to "clear" the six Republicans to vote on the Medicaid issues.
Those six Republican votes are pretty important, because without those votes, Republicans can't reauthorize Medicaid without having a discussion about expansion. (By the way, notice what I said there: without a discussion of expansion. No one has said they won't authorize without expansion; Democrats just won't vote to reauthorize without a discussion of expansion.) During the 2013 Regular Session of the Mississippi Legislature, six House Republicans recused themselves from votes on Medicaid funding and reauthorization.
According to the AP, the six Republicans are:
Rep. Donnie Bell of Fulton, who does marketing for a hospice provider; Rep. Bubba Carpenter of Burnsville, a paramedic; Rep. Becky Currie of Brookhaven, a nurse; Rep. Mac Huddleston of Pontotoc, who is married to a doctor; Rep. Sam Mims of McComb, a marketing representative for a health care company; and Rep. Margaret Rogers of New Albany, whose father is a doctor.The reason those six recused themselves is because at the start of this past legislative session, the Ethics Commission said that someone in their position should recuse themselves. On January 4, 2013, in Opinion 12-107-ER, the Ethics Commission said that when a legislator's employer would receive more than $2,500 from Medicaid, the legislator would be prohibited by "Section 25-4-105(1) from using his or her position to obtain or attempt to obtain a pecuniary benefit for the Medicaid provider." That meant the legislator could either recuse from Medicaid votes (all of 'em) or quit working for the Medicaid provider.
Our state Supreme Court has not been so blunt with its interpretation of our ethics laws. A very similar matter arose in the 1990s, when suit was filed against Rep. Bobby Howell and Rep. John Read, both financially interested in different pharmacies that were Medicaid providers. Howell and Read were both found to be in violation of Article 4, Section 109 of the Mississippi Constitution of 1890 by the Hinds County Chancery Court for voting on Medicaid appropriations bills. The matter was appealed. In Jones v. Howell, Chief Justice James Smith opined:
They contend that there is no danger of self-dealing by Medicaid providers in legislative roles because the appropriations to Medicaid do not affect the amount that the providers are reimbursed. Similarly, there is no incentive for them to vote one way or the other on appropriation bills because the amount of money they make depends, not on how much money is appropriated, but on how many Medicaid recipients choose to use their pharmacy. We agree. 827 So.2d 691, 698-99 (Miss. 2002)Ok, that's cool. So under the law, the six Republicans who sought ethics opinions may vote on appropriations bills concerning Medicaid.
But that's not really the issue.
The issue is whether they can vote to extend the very existence of Medicaid. And this is where the Ethics Commission has invited them, and Gov. Phil Bryant has told them, to step directly into an ethical pile of excrement.
You see, even the Ethics Commission itself agrees that voting to avoid a pecuniary loss is the same as voting to obtain a pecuniary benefit. They even said so in a footnote in the opinions which supposedly cleared the six Republicans to vote on reauthorization. In their haste to clear these six Republicans to vote against Medicaid expansion, the Republican-run Ethics Commission stated the following in footnote 2:
Avoiding a monetary loss or expense is equivalent to receiving a benefit. See Ops. Miss. Ethics Commn. 06-040-E, 04-108-E and 03-123-E.And what has everyone been worried about happening July 1? The end of Medicaid. If Medicaid ends, no doubt these six Republicans, their employers, or their families will suffer a pecuniary loss. So what would a vote to extend the existence of Medicaid be? What else could it be besides a vote to avoid a monetary loss?
Sure, these six Republicans have been told that they've been "cleared" by the Ethics Commission to vote on the Medicaid issues. The Ethics Commission isn't the end-all-be-all, though. In fact, even relying upon an ethics opinion doesn't cover a legislator in court if the opinion is later found to be manifestly wrong or without substantial support.
Any guesses as to whether or not these six Republicans will have to sit around and wait on a court to decide if they have violated the Constitution and will be fined, forced to pay restitution, and removed from office?
Or how the courts will treat a blatantly political opinion that reverses course on a multitude of opinions on similar issues before it?