The city of Columbus is claiming a preliminary report from the Mississippi Ethics Commission that recommended a $500 fine against Mayor Robert Smith for an Open Meetings Act violation is based on mistaken facts.

In addition to issuing the mayor a $500 fine, the commission recommended Smith be ordered to “refrain from using telephone polling to discuss any matter over which the city council has supervision…except during a properly called, noticed and recorded public meeting.

The complaint

The penalty stems from a complaint The Dispatch filed with the commission last year after Mayor Robert Smith sent a letter to the president of the Lowndes County Board of Supervisors regarding the operation and management of a Yorkville Road firing range.

“I am advising by this letter that it is the unanimous opinion of the Columbus City Council, and I totally agree with them, that the small arms range should be operated and managed by the city of Columbus,” the April 28, 2015, letter reads.

The mayor stated in the letter that he had “discussed this matter with each” Columbus councilman.

The Dispatch’s complaint alleged city leaders violated the state’s Open Meetings Act because the matter was not discussed in a public meeting.

The ruling

In the report, issued May 16, the Ethics Commission found Smith violated the Open Meetings Act by calling three councilmen over a few days after talking to three others at happenstance meetings. The Commission said the happenstance meetings were not a violation. However, the Commission said Smith “actively soliciting” the other three council members’ opinions was a violation.

The objection

The city, in its objection filed Thursday by attorney Jeff Turnage, disagreed.

The objection says Smith contacted councilmen by phone before the happenstance meetings, not after. It also says Smith, as a member of the city’s executive branch of government, doesn’t factor into the formation of a quorum when he talks with councilmen.

“He should not be treated as a County Supervisor might be when he communicates with members of the Council,” Turnage wrote, “but rather is more akin to the County Administrator.”

Turnage also argues telephone conversations involving less than a quorum of the council do not constitute meetings under the Open Meetings Act.

He goes on to say the preliminary report, if carried out, has concerning ramifications for the free speech of mayors and city council members. He questioned whether the limitation would prevent councilmen from — among other things — giving interviews to media on public matters.

“Surely council members have a right under the First Amendment to communicate their opinions on matters of public concern outside formal meetings of their assembly,” he wrote.

Concerns about hearing

The city’s objection also argues against the penalties imposed on Smith and claims the mayor hasn’t be given proper due process.

“Because the Commission has already announced a decision that will stand unless it is persuaded otherwise, it may be difficult if not impossible for the Commission to give completely impartial consideration to anything the City or the Mayor says about this case,” he wrote.

The city was set for a hearing before the Ethics Commission on June 22. Ethics Commission Executive Director Tom Hood told The Dispatch the hearing officer will have to review the city’s objection to determine whether a hearing is still needed. If a hearing is still warranted, he said, it will likely be pushed to after June 22.

Alex Holloway was formerly a reporter with The Dispatch.