Ethics Commission ruling: Anatomy of a victory

By Bobby Harrison/NEMS Daily Journal

JACKSON – The state Ethics Commission provided a total victory to House Speaker Philip Gunn, R-Clinton, and Republican Gov. Phil Bryant as they work to continue the existing Medicaid program while fighting efforts to expand it.
The eight-member Commission not only reversed itself and ruled that legislators who work for Medicaid providers could vote on Medicaid issues, but also took the additional step of advising a legislator who works for a Medicaid provider that it would be OK to vote against expansion, but not for expanding the program. There is an ongoing debate on whether to expand the program to cover those earning up to 138 percent of the federal poverty level, or about $15,000 annually, as allowed by federal law.
The ruling earlier this month came after Gunn took the unusual step of requesting “a blanket” opinion covering six Republicans who were not voting on Medicaid issues because of past rulings by the Ethics Commission. With those six members not voting, Democrats were able to block funding and reauthorizating the Medicaid program during the 2013 regular session in an attempt to force Gunn to allow them to have a floor vote on expansion.
Instead, Gunn turned to the Ethics Commission to try to get the votes to pass the existing program while not allowing a floor vote on expansion. Ethics Commissioner member Billy Powell of Madison, who is a close political supporter of the speaker, said the Commission refused to rule on Gunn’s blanket request, but instead required each individual legislator who would be impacted to file a separate request for an opinion from the Commission as is the custom.
But it was well-known by the Commission where the speaker stood on the issue, as well as where Bryant stood.
“So we feel like it’s important for every member to have the opportunity to vote,” Bryant said in an earlier interview.
With the Ethics Commission victory in hand, Bryant is expected to call a special session before July 1 to try to fund the program and reauthorize it for the new fiscal year.
Tom Hood, the executive director of the Ethics Commission, said the reversal was made in large part because of the Supreme Court ruling in 2002 in a case involving Rep. Bobby Howell, R-Kilmichael, who was at the time owner of a drug store. A lower court had ruled that Howell’s service in the Legislature was a violation of the state’ Constitution’s Section 109 that prevents public officials from an interest “directly or indirectly, in any contract” with a governmental entity.
Earlier court rulings on Section 109 issues in the 1980s resulted in educators not being able to serve in the Legislature.
The nine-member Supreme Court ruling, written by former Chief Justice Jim Smith and joined by five of the justices, not only stated that Howell could serve in the Legislature, but essentially that he could vote on Medicaid funding issues.
Smith reasoned that, while the Legislature funds the Medicaid program, there are other variables that determine how and where those funds are spent. For instance, federal officials play a role in Medicaid funding and a Medicaid recipient also decides which health care provider to seek out for services. The Ethics Commission, based at least in part on the Howell Supreme Court decision, opined in 2005 that a legislator could vote on an education appropriations bill even if his or her spouse was a school teacher.
But the Commission continued to rule that legislators employed by a for-profit company that treated Medicaid recipients could not vote on the appropriations bills – as late as December 2012 it issued that ruling.
But last week in taking up the issue again, Hood admitted “one of the rulings by the Ethics Commission is wrong,” meaning that either legislators whose spouses are school teachers can’t vote on education appropriations bills or legislators who work for a Medicaid provider can vote.
Ethics Commission member Bill Wheeler of Oxford disagreed. He said the two issues are not analogous because educators are not allowed to serve in the Legislature, but Medicaid providers are.
But he went on to say he definitely cannot understand the final part of the Ethics Commission ruling saying that legislators who work for Medicaid providers can vote no on expansion, but not yes.
The Ethics Commission opinion stated that adding an estimated 300,000 people to the Medicaid roles “would result in a pecuniary benefit to many Medicaid providers…However voting against a measure which would presumably benefit one’s employer cannot be a violation.”
Hood said, “If you add 300,000 Medicaid recipients, you can pretty well expect some of the Medicaid providers will benefit.”
Wheeler said if expanding the program is a pecuniary benefit then so is voting to continue the existing program, which has to be funded on an annual basis. It takes an affirmative vote by the Legislature each year to fund the existing program, and if that vote was not taken, the Medicaid providers, including those who employ legislators, would suffer financial consequences.
“All you are talking about is the degree of money,” Wheeler said. “…It is the same program. It would just be covering more people.”
Hood said that the legislators who asked for the opinion from the Commission wanted to know if they could vote no. If a legislator asked if he could vote yes on expansion, then the Ethics Commission might say that would be acceptable.
But in reading the ruling, the Ethics Commission did not seem to give itself any wriggle room.
The opinion reads, “While the commission advises the requestor to recuse himself or herself from any measure which would expand the Medicaid program, voting against the measure will violate” state conflict of interests prohibitions.
Of course, the Ethics Commission has been known to change its mind.
bobby.harrison@journalinc.com