Bill Text: MS HB122 | 2012 | Regular Session | Introduced
Bill Title: Sunshine Act; create for agencies hiring attorneys.
Spectrum: Partisan Bill (Republican 40-0)
Status: (Introduced - Dead) 2012-02-09 - Ruled Improperly Before House [HB122 Detail]
Download: Mississippi-2012-HB122-Introduced.html
MISSISSIPPI LEGISLATURE
2012 Regular Session
To: Judiciary A
By: Representatives Gunn, Baker, Lamar
House Bill 122
AN ACT TO PROVIDE THAT THE GOVERNOR, LIEUTENANT GOVERNOR, SPEAKER OF THE HOUSE OF REPRESENTATIVES, ATTORNEY GENERAL, SECRETARY OF STATE, STATE TREASURER, STATE AUDITOR, COMMISSIONER OF AGRICULTURE AND COMMERCE, COMMISSIONER OF INSURANCE, AND THE EXECUTIVE DIRECTOR OF ANY STATE AGENCY, BOARD, COMMISSION, DEPARTMENT OR INSTITUTION, IS AUTHORIZED TO APPOINT OR EMPLOY SPECIAL COUNSEL TO REPRESENT THAT OFFICER OR AGENCY, BOARD, COMMISSION, DEPARTMENT OR INSTITUTION; TO PROVIDE THAT LITIGATION ON BEHALF OF A STATE AGENCY MUST RECEIVE THE APPROVAL OF THE AGENCY HEAD; TO REVISE THE AUTHORITY OF THESE OFFICERS TO RETAIN SPECIAL COUNSEL AND TO GRANT A LIMITED FUNDS ESCALATION; TO PROVIDE THAT THE PERSONAL SERVICE CONTRACT REVIEW BOARD SHALL MAINTAIN CERTAIN CONTRACTS FOR APPOINTED OR EMPLOYED OUTSIDE COUNSEL ENTERED INTO BY THESE OFFICERS AND AGENCIES; TO AMEND SECTIONS 7-1-5, 7-5-1, 7-5-5, 7-5-7, 7-5-21, 7-7-211, 7-7-225, 25-9-120, 69-1-14 AND 83-1-5, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) For purposes of this section, "officer" means the Governor, Lieutenant Governor, Speaker of the House of Representatives, Attorney General, Secretary of State, State Treasurer, State Auditor, Commissioner of Agriculture and Commerce, Commissioner of Insurance, and executive director of any state agency, board, commission, department or institution.
(2) Any officer is authorized to appoint or employ special counsel of the officer's choice other than the attorney employed in the Office of the Attorney General and assigned by the Attorney General and other than an attorney employed in state service who may be recommended by the State Personnel Board, to represent that officer or the entity he leads or represents. An attorney appointed as special counsel shall not be an attorney in the state service, and may be compensated on a fee basis. An attorney employed as special counsel may be an attorney in the state service and shall be compensated on a salary basis. The special counsel may assist the officer in any or all legal matters, including, but not limited to, the preparation for, prosecution, or defense of any litigation in the state or federal courts or before any federal or state commission or agency in which the appointing or employing entity is a party or has an interest. The approval of the Attorney General is not required for an appointment or employment under this section. Unless compensation is paid pursuant to a contingent fee agreement, the appointed or employed special counsel's compensation shall be paid out of any funds appropriated or otherwise available to the officer.
(3) The officer is further entitled, without a determination as required in subsection (4), to retain special counsel of the officer's choice under this section if, in the officer's opinion, any conflict of interest exists with the Office of the Attorney General. If appointed special counsel has been retained under this subsection, the Attorney General shall withdraw from representation of that officer, but the Attorney General may continue to appear in any other capacity.
(4) Before an attorney may be appointed or employed as special counsel under the provisions of this section, the officer must first determine and make a written finding that the needed legal services cannot be adequately performed by the attorneys and supporting legal staff members in state service who are assigned to the officer by the Attorney General.
(5) (a) An attorney appointed as special counsel under the provisions of this subsection shall be compensated for his or her legal services on an hourly basis, unless the legal services being sought can reasonably be obtained from attorneys in the private practice of law only under a contract providing for a contingent fee, or because there are not appropriated funds available to pay the estimated amounts required under a contract providing only for the payment of hourly fees.
(b) Any contract, in which the anticipated fee is in excess of One Hundred Thousand Dollars ($100,000.00), for the legal services of appointed special counsel under this subsection shall be forwarded by the officer to the Personal Service Contract Review Board created under Section 25-9-120. Unless the officer specifies in writing to the board reasons which may negatively affect the interests of the state in relation to the matter for which the contract was executed, all such contracts shall be delivered to the board within five (5) days of the execution of the contract, and placed on the website of the board within five (5) days of the board's receipt of the contract, and such contracts shall remain on the website during the pendency of the matter for which the contract was executed. Under no circumstances shall such contracts not be submitted to the board for placement on the board's website within five (5) days of the filing of any lawsuit or appearance by such contracting law firm or attorney in the matter for which the contract was executed.
(6) The following provisions shall apply to any contract for the services of appointed special counsel:
(a) Any contract for services of special counsel, whether providing for set, hourly or contingent fees, must require that the contracting attorney or law firm appointed as special counsel keep current and complete written time and expense records that describe in detail the time and expenses incurred each day in performance of the contract.
(b) At the conclusion of the matter for which the legal services were obtained, the contracting attorney or law firm appointed as special counsel shall prepare a complete written statement that describes the outcome of the matter, states the amount of any recovery, shows the contracting attorney's or law firm's computation of the amount of all fees and expenses, and contains the final complete time and expense records required under this subsection. The officer shall keep and maintain these records, shall forward copies of these records to the Personal Service Contract Review Board, and shall provide an annual report that shall be an open and public record, detailing all litigation pursued with appointed special counsel. This report shall include a description of the litigation, name of counsel retained, description of the terms and conditions by which outside counsel was retained, compensation, a description of the outcome of the matter, the amount of recovery, the contracting attorney's or law firm's computation of the amount of all fees and expenses and the final and complete time and expense records.
(7) The officer may reallocate appropriated funds in the budget of such officer for the purpose of allowing the officer to retain appointed special counsel to pursue any legal matters consistent with this act. The officer shall notify the Legislative Budget Office of any such budget reallocation and shall ensure that the office receives timely, detailed and accurate information about the amount and use of the authority granted under this subsection.
(8) The officer shall provide a docket of all cases using appointed or employed counsel under this section to the Personal Service Contract Review Board, which must be open to the inspection of the public during normal business hours and available online. The docket shall contain the information required in Section 7-5-21.
SECTION 2. Section 7-1-5, Mississippi Code of 1972, is amended as follows:
7-1-5. In addition to the powers conferred and duties imposed on the Governor by the Constitution and by the laws as elsewhere provided, he shall have the powers and perform the duties following:
(a) He is the supreme executive officer of the state.
(b) He is the commander in chief of the militia of the state and may call out the militia to execute the laws, to suppress insurrections or riots, and to repel invasions.
(c) He shall see that the laws are faithfully executed.
(d) He is to supervise the official conduct of all executive and ministerial officers.
(e) He is to see that all offices are filled and the duties of the offices are performed or, in default thereof, apply such remedy as the law allows; and if the remedy is inadequate, he shall inform the Legislature at its next session.
(f) He shall make appointments and fill vacancies as prescribed by law.
(g) Whenever any suit or legal proceeding is pending that affects the title of the state to any property, or that may result in any claim against the state, he may direct the Attorney General to appear on behalf of the state and protect its interest.
(h) He may require the Attorney General, or district attorney of any district, to inquire into the affairs or management of any corporation existing under the laws of this state, or doing business in this state under the laws of the state.
(i) He may require the Attorney General to aid any district attorney in the discharge of his duties.
(j) He may offer rewards, not exceeding Two Hundred Dollars ($200.00), for persons with mental illness who have escaped and are dangerous, and such other rewards as are authorized by law.
(k) He may require any officer or board to make special reports to him upon demand in writing.
(l) He shall transact all necessary business with state officers, shall require them to be present at their respective offices at all reasonable business hours, and may require information, in writing, from any such officer relating to the duties of his office.
(m) When deemed advisable upon proceedings for the arrest in this state of fugitives from justice from other states or countries, he may commission a special officer to arrest the fugitive in any part of the state.
(n) He may bring any proper suit affecting the general public interests, in his own name for the State of Mississippi, if after first requesting the proper officer so to do, the officer refuses or neglects to do the same.
(o) He may appoint or employ special counsel in accordance with Section 1 of this act.
SECTION 3. Section 7-5-1, Mississippi Code of 1972, is amended as follows:
7-5-1. (1) The Attorney General provided for by Section 173 of the Mississippi Constitution shall be elected at the same time and in the same manner as the Governor is elected. His term of office shall be four (4) years and his compensation shall be fixed by the Legislature. He shall be the chief legal officer and advisor for the state, both civil and criminal, and is charged with managing * * * litigation on behalf of the state. No arm or agency of the state government shall bring or defend a suit against another such arm or agency without prior written approval of the Attorney General. He shall have the powers of the Attorney General at common law and, except as provided in subsection (2) of this section, is given * * * power to bring or defend a lawsuit on behalf of a state agency, the subject matter of which is of statewide interest, and he shall intervene and argue the constitutionality of any statute when notified of a challenge thereto, pursuant to the Mississippi Rules of Civil Procedure. His qualifications for office shall be as provided for chancery and circuit judges in Section 154 of the Mississippi Constitution.
(2) No legal action on behalf of any officer as defined in Section 1 of this act, including a suit to recoup funds expended by an agency, may be taken until ten (10) days' written notice of the proposed legal action is given to the officer or agency, board, commission, department or institution. Upon the expiration of the notice period, the Attorney General may institute suit with or without the consent of the officer or agency, board, commission, department or institution. If the officer or agency, board, commission, department or institution does not consent to the legal action, an appointed or employed special counsel may be retained by such officer or agency, board, commission, department or institution pursuant to Section 1 of this act.
SECTION 4. Section 7-5-5, Mississippi Code of 1972, is amended as follows:
7-5-5. (1) The Attorney General shall appoint nine (9) competent attorneys, each of whom shall be designated as an assistant attorney general. The assistants shall each possess all of the qualifications required by law of the Attorney General and shall have power and authority under the direction and supervision of the Attorney General to perform all of the duties required by law of that officer; and each shall be liable to the pains and penalties to which the Attorney General is liable. The assistants shall serve at the will and pleasure of the Attorney General, and they shall devote their entire time and attention to the duties pertaining to the department of justice as required by the general laws. The compensation of the within enumerated assistant attorneys general and all other regular assistants authorized by law shall be fixed by the Attorney General, not to exceed the compensation fixed by law for such assistants.
(2) (a) The Attorney General is hereby authorized, empowered and directed to designate three (3) of the * * * assistant attorneys general to devote their time and attention primarily to defending and aiding in the defense in all courts of any suit, filed or threatened, against the State of Mississippi, against any subdivision thereof, or against any agency or instrumentality of the state or subdivision, including all elected officials and any other officer or employee thereof. When the circumstances permit, the assistants may perform any of the Attorney General's powers and duties, including, but not limited to, engaging in lawsuits outside the state when in his opinion same would help bring about the equal application of federal laws and court decisions in every state and guaranteeing equal protection of the laws as guaranteed every citizen by the United States Constitution.
(b) To further prosecute and insure such purposes, the Attorney General is hereby further expressly authorized, empowered and directed to appoint or employ such additional special counsel as * * * may be necessary or advisable, on a fee or contract basis pursuant to the provisions of Section 1 of this act.
(3) The Attorney General may discharge any assistant attorney general, special assistant attorney general or appointed or employed special counsel at his pleasure and appoint another in his stead. The assistant attorneys general shall devote their entire time and attention to the duties pertaining to the Department of Justice under the control and supervision of the Attorney General.
SECTION 5. Section 7-5-7, Mississippi Code of 1972, is amended as follows:
7-5-7. The Governor may engage counsel to assist the Attorney General in cases to which the state is a party when, in his opinion, the interest of the state requires it, subject to the action of the Legislature in providing compensation for such services.
Pursuant to the provisions of Section 1 of this act, the Attorney General is hereby authorized and empowered to appoint and employ special counsel, on a fee or salary basis, to assist the Attorney General in the preparation for, prosecution, or defense of any litigation in the state or federal courts or before any state or federal commission or agency in which the state is a party or has an interest.
The Attorney General may designate such special counsel as special assistant attorney general, and may pay such special counsel reasonable compensation provided that he complies with the requirements of Section 1 of this act.
The Attorney General may also employ special investigators on a per diem or salary basis, to be agreed upon at the time of employment, for the purpose of interviewing witnesses, ascertaining facts, or rendering any other services that may be needed by the Attorney General in the preparation for and prosecution of suits by or against the State of Mississippi, or in suits in which the Attorney General is participating on account of same being of statewide interest.
The Attorney General may pay travel and other expenses of employees and appointees made hereunder in the same manner and amount as authorized by law for the payment of travel and expenses of state employees and officials.
The compensation of appointees and employees made hereunder shall be paid out of the Attorney General's contingent fund, or out of any other funds appropriated to the Attorney General's office.
SECTION 6. Section 7-5-21, Mississippi Code of 1972, is amended as follows:
7-5-21. The Attorney General shall keep a docket of all causes in which he is required to appear or is appearing, either through his office or through counsel retained as appointed or employed special counsel, which must * * * be open to the inspection of the public during regular business hours and must show the style of the case and the county, district, and court in which the causes have been instituted and tried, the cause number of the action, and whether they be civil or criminal. If civil, the docket must show the nature of the demand, the stage of the proceedings, the name and address of any appointed or employed special counsel, a memorandum of the judgment when prosecuted to judgment, any process issued thereon, whether satisfied or not, and if not satisfied, the return of the sheriff. If criminal, the docket must show the nature of the crime, the mode of prosecution, the stage of the proceedings, a memorandum of the sentence when prosecuted to a sentence, the execution thereof, if executed, and, if not executed, the reasons of delay or prevention. The docket information shall be available on the Attorney General's website.
SECTION 7. Section 7-7-211, Mississippi Code of 1972, is amended as follows:
7-7-211. The department shall have the power and it shall be its duty:
(a) To identify and define for all public offices of the state and its subdivisions generally accepted accounting principles as promulgated by nationally recognized professional organizations and to consult with the State Fiscal Officer in the prescription and implementation of accounting rules and regulations;
(b) To provide best practices, for all public offices of regional and local subdivisions of the state, systems of accounting, budgeting and reporting financial facts relating to said offices in conformity with legal requirements and with generally accepted accounting principles as promulgated by nationally recognized professional organizations; to assist such subdivisions in need of assistance in the installation of such systems; to revise such systems when deemed necessary, and to report to the Legislature at periodic times the extent to which each office is maintaining such systems, along with such recommendations to the Legislature for improvement as seem desirable;
(c) To study and analyze existing managerial policies, methods, procedures, duties and services of the various state departments and institutions upon written request of the Governor, the Legislature or any committee or other body empowered by the Legislature to make such request to determine whether and where operations can be eliminated, combined, simplified and improved;
(d) To postaudit each year and, when deemed necessary, preaudit and investigate the financial affairs of the departments, institutions, boards, commissions or other agencies of state government, as part of the publication of a comprehensive annual financial report for the State of Mississippi. In complying with the requirements of this paragraph, the department shall have the authority to conduct all necessary audit procedures on an interim and year-end basis;
(e) To postaudit and, when deemed necessary, preaudit and investigate separately the financial affairs of (i) the offices, boards and commissions of county governments and any departments and institutions thereof and therein; (ii) public school districts, departments of education and junior college districts; and (iii) any other local offices or agencies which share revenues derived from taxes or fees imposed by the State Legislature or receive grants from revenues collected by governmental divisions of the state; the cost of such audits, investigations or other services to be paid as follows: Such part shall be paid by the state from appropriations made by the Legislature for the operation of the State Department of Audit as may exceed the sum of Thirty Dollars ($30.00) per man hour for the services of each staff person engaged in performing the audit or other service, which sum shall be paid by the county, district, department, institution or other agency audited out of its general fund or any other available funds from which such payment is not prohibited by law.
Each school district in the state shall have its financial records audited annually, at the end of each fiscal year, either by the State Auditor or by a certified public accountant approved by the State Auditor, except that, beginning with audits of fiscal year 2010 activity, the State Auditor shall conduct the audit of each school district at least once every four (4) years. If financial and personnel resources are not made available to the State Auditor for the purpose of ensuring that school districts are audited by the State Auditor at least once every four (4) years then, beginning with the audits of fiscal year 2010 activity, no certified public accountant shall be selected to perform the annual audit of a school district who has audited that district for three (3) or more consecutive years previously. Certified public accountants shall be selected in a manner determined by the State Auditor. The school district shall have the responsibility to pay for the audit, including the review by the State Auditor of audits performed by certified public accountants;
(f) To postaudit and, when deemed necessary, preaudit and investigate the financial affairs of the levee boards; agencies created by the Legislature or by executive order of the Governor; profit or nonprofit business entities administering programs financed by funds flowing through the State Treasury or through any of the agencies of the state, or its subdivisions; and all other public bodies supported by funds derived in part or wholly from public funds, except municipalities which annually submit an audit prepared by a qualified certified public accountant using methods and procedures prescribed by the department;
(g) To make written demand, when necessary, for the recovery of any amounts representing public funds improperly withheld, misappropriated and/or otherwise illegally expended by an officer, employee or administrative body of any state, county or other public office, and/or for the recovery of the value of any public property disposed of in an unlawful manner by a public officer, employee or administrative body, such demands to be made (i) upon the person or persons liable for such amounts and upon the surety on official bond thereof, and/or (ii) upon any individual, partnership, corporation or association to whom the illegal expenditure was made or with whom the unlawful disposition of public property was made, if such individual, partnership, corporation or association knew or had reason to know through the exercising of reasonable diligence that the expenditure was illegal or the disposition unlawful. Such demand shall be premised on competent evidence, which shall include at least one (1) of the following: (i) sworn statements, (ii) written documentation, (iii) physical evidence, or (iv) reports and findings of government or other law enforcement agencies. Other provisions notwithstanding, a demand letter issued pursuant to this paragraph shall remain confidential by the State Auditor until the individual against whom the demand letter is being filed has been served with a copy of such demand letter. If, however, such individual cannot be notified within fifteen (15) days using reasonable means and due diligence, such notification shall be made to the individual's bonding company, if he or she is bonded. Each such demand shall be paid into the proper treasury of the state, county or other public body through the office of the department in the amount demanded within thirty (30) days from the date thereof, together with interest thereon in the sum of one percent (1%) per month from the date such amount or amounts were improperly withheld, misappropriated and/or otherwise illegally expended. In the event, however, such person or persons or such surety shall refuse, neglect or otherwise fail to pay the amount demanded and the interest due thereon within the allotted thirty (30) days, the State Auditor shall have the authority and it shall be his duty to institute suit, and the Attorney General shall prosecute the same in any court of the state to the end that there shall be recovered the total of such amounts from the person or persons and surety on official bond named therein; and the amounts so recovered shall be paid into the proper treasury of the state, county or other public body through the State Auditor. In any case where written demand is issued to a surety on the official bond of such person or persons and the surety refuses, neglects or otherwise fails within one hundred twenty (120) days to either pay the amount demanded and the interest due thereon or to give the State Auditor a written response with specific reasons for nonpayment, then the surety shall be subject to a civil penalty in an amount of twelve percent (12%) of the bond, not to exceed Ten Thousand Dollars ($10,000.00), to be deposited into the State General Fund;
(h) To investigate any alleged or suspected violation of the laws of the state by any officer or employee of the state, county or other public office in the purchase, sale or the use of any supplies, services, equipment or other property belonging thereto; and in such investigation to do any and all things necessary to procure evidence sufficient either to prove or disprove the existence of such alleged or suspected violations. The Department of Investigation of the State Department of Audit may investigate, for the purpose of prosecution, any suspected criminal violation of the provisions of this chapter. For the purpose of administration and enforcement of this chapter, the enforcement employees of the Department of Investigation of the State Department of Audit have the powers of a law enforcement officer of this state, and shall be empowered to make arrests and to serve and execute search warrants and other valid legal process anywhere within the State of Mississippi. All enforcement employees of the Department of Investigation of the State Department of Audit hired on or after July 1, 1993, shall be required to complete the Law Enforcement Officers Training Program and shall meet the standards of the program;
(i) To issue subpoenas, with the approval of, and returnable to, a judge of a chancery or circuit court, in termtime or in vacation, to examine the records, documents or other evidence of persons, firms, corporations or any other entities insofar as such records, documents or other evidence relate to dealings with any state, county or other public entity. The circuit or chancery judge must serve the county in which the records, documents or other evidence is located; or where all or part of the transaction or transactions occurred which are the subject of the subpoena;
(j) In any instances in which the State Auditor is or shall be authorized or required to examine or audit, whether preaudit or postaudit, any books, ledgers, accounts or other records of the affairs of any public hospital owned or owned and operated by one or more political subdivisions or parts thereof or any combination thereof, or any school district, including activity funds thereof, it shall be sufficient compliance therewith, in the discretion of the State Auditor, that such examination or audit be made from the report of any audit or other examination certified by a certified public accountant and prepared by or under the supervision of such certified public accountant. Such audits shall be made in accordance with generally accepted standards of auditing, with the use of an audit program prepared by the State Auditor, and final reports of such audits shall conform to the format prescribed by the State Auditor. All files, working papers, notes, correspondence and all other data compiled during the course of the audit shall be available, without cost, to the State Auditor for examination and abstracting during the normal business hours of any business day. The expense of such certified reports shall be borne by the respective hospital, or any available school district funds other than minimum program funds, subject to examination or audit. The State Auditor shall not be bound by such certified reports and may, in his or their discretion, conduct such examination or audit from the books, ledgers, accounts or other records involved as may be appropriate and authorized by law;
(k) The State Auditor shall have the authority to contract with qualified public accounting firms to perform selected audits required in paragraphs (d), (e), (f) and (j) of this section, if funds are made available for such contracts by the Legislature, or if funds are available from the governmental entity covered by paragraphs (d), (e), (f) and (j). Such audits shall be made in accordance with generally accepted standards of auditing. All files, working papers, notes, correspondence and all other data compiled during the course of the audit shall be available, without cost, to the State Auditor for examination and abstracting during the normal business hours of any business day;
(l) The State Auditor shall have the authority to establish training courses and programs for the personnel of the various state and local governmental entities under the jurisdiction of the Office of the State Auditor. The training courses and programs shall include, but not be limited to, topics on internal control of funds, property and equipment control and inventory, governmental accounting and financial reporting, and internal auditing. The State Auditor is authorized to charge a fee from the participants of these courses and programs, which fee shall be deposited into the Department of Audit Special Fund. State and local governmental entities are authorized to pay such fee and any travel expenses out of their general funds or any other available funds from which such payment is not prohibited by law;
(m) Upon written request by the Governor or any member of the State Legislature, the State Auditor may audit any state funds and/or state and federal funds received by any nonprofit corporation incorporated under the laws of this state;
(n) To conduct performance audits of personal or professional service contracts by state agencies on a random sampling basis, or upon request of the State Personal Service Contract Review Board under Section 25-9-120(3);
(o) To appoint or employ special counsel pursuant to the provisions of Section 1 of this act.
SECTION 8. Section 7-7-225, Mississippi Code of 1972, is amended as follows:
7-7-225. The State Auditor * * *, when conducting agency audits, shall test to determine whether or not the state institutions of higher learning and any state agency which does not draw warrants on the Treasury have complied with the provisions of Section 1 of this act with regard to any contract for legal services.
SECTION 9. Section 25-9-120, Mississippi Code of 1972, is amended as follows:
25-9-120. (1) Contract personnel, whether classified as contract workers or independent contractors shall not be deemed state service or nonstate service employees of the State of Mississippi, and shall not be eligible to participate in the Public Employees' Retirement System, or the state employee health plan, nor be allowed credit for personal and sick leave and other leave benefits as employees of the State of Mississippi, notwithstanding Sections 25-3-91 through 25-3-101; 25-9-101 through 25-9-151; 25-11-1 through 25-11-126; 25-11-128 through 25-11-131; 25-15-1 through 25-15-23 and for the purpose set forth herein. Contract workers, i.e., contract personnel who do not meet the criteria of independent contractors, shall be subject to the provisions of Section 25-11-127.
(2) There is hereby created the Personal Service Contract Review Board, which shall be composed of the State Personnel Director, the Executive Director of the Department of Finance and Administration, or his designee, the Commissioner of Corrections, or his designee, the Executive Director of the Mississippi Department of Wildlife and Fisheries, or his designee, and the Executive Director of the Department of Environmental Quality, or his designee. The State Personnel Director shall be chairman and shall preside over the meetings of the board. The board shall annually elect a vice chairman, who shall serve in the absence of the chairman. No business shall be transacted, including adoption of rules of procedure, without the presence of a quorum of the board. Three (3) members shall be a quorum. No action shall be valid unless approved by the chairman and two (2) other of those members present and voting, entered upon the minutes of the board and signed by the chairman. Necessary clerical and administrative support for the board shall be provided by the State Personnel Board. Minutes shall be kept of the proceedings of each meeting, copies of which shall be filed on a monthly basis with the Legislative Budget Office.
(3) The Personal Service Contract Review Board shall have the following powers and responsibilities:
(a) Promulgate rules and regulations governing the solicitation and selection of contractual services personnel including personal and professional services contracts for any form of consulting, policy analysis, public relations, marketing, public affairs, legislative advocacy services or any other contract that the board deems appropriate for oversight, with the exception of any personal service contracts entered into for computer or information technology-related services governed by the Mississippi Department of Information Technology Services, any personal service contracts entered into by the Mississippi Department of Transportation, and any contract for * * * accountant, auditor, physician, dentist, architect, engineer, veterinarian and utility rate expert services. Any such rules and regulations shall provide for maintaining continuous internal audit covering the activities of such agency affecting its revenue and expenditures as required under Section 7-7-3(6)(d), Mississippi Code of 1972;
(b) (i) Approve all personal and professional services contracts involving the expenditures of funds in excess of One Hundred Thousand Dollars ($100,000.00); and
(ii) Maintain all contracts and related documents for legal services submitted to it and perform related responsibilities in accordance with the provisions of Section 1 of this act.
(c) Develop standards with respect to contractual services personnel which require invitations for public bid, requests for proposals, record keeping and financial responsibility of contractors. The Personal Service Contract Review Board may, in its discretion, require the agency involved to advertise such contract for public bid, and may reserve the right to reject any or all bids;
(d) Prescribe certain circumstances whereby agency heads may enter into contracts for personal and professional services without receiving prior approval from the Personal Service Contract Review Board. The Personal Service Contract Review Board may establish a preapproved list of providers of various personal and professional services for set prices with which state agencies may contract without bidding or prior approval from the board;
(e) To provide standards for the issuance of requests for proposals, the evaluation of proposals received, consideration of costs and quality of services proposed, contract negotiations, the administrative monitoring of contract performance by the agency and successful steps in terminating a contract;
(f) To present recommendations for governmental privatization and to evaluate privatization proposals submitted by any state agency;
(g) To authorize personal and professional service contracts to be effective for more than one (1) year provided a funding condition is included in any such multiple year contract, except the State Board of Education, which shall have the authority to enter into contractual agreements for student assessment for a period up to ten (10) years. The State Board of Education shall procure these services in accordance with the Personal Service Contract Review Board procurement regulations;
(h) To request the State Auditor to conduct a performance audit on any personal or professional service contract;
(i) Prepare an annual report to the Legislature concerning the issuance of personal service contracts during the previous year, collecting any necessary information from state agencies in making such report.
(4) No member of the Personal Service Contract Review Board shall use his official authority or influence to coerce, by threat of discharge from employment, or otherwise, the purchase of commodities or the contracting for personal or professional services under this section.
SECTION 10. Section 69-1-14, Mississippi Code of 1972, is amended as follows:
69-1-14. (1) The Commissioner of Agriculture and Commerce is hereby authorized and empowered to employ an attorney to represent the Department of Agriculture and Commerce and to fix his compensation subject to the approval of the State Personnel Board. Said attorney shall be a full-time employee of the Department of Agriculture and Commerce and shall be furnished such office space and clerical assistance as shall be necessary. In addition to his duties with the Department of Agriculture and Commerce, said attorney shall represent the Board of Animal Health, the Mississippi State Fair Commission and the Mississippi Central Market Board. The salary and expenses of said attorney shall be paid from any funds available to the Department of Agriculture and Commerce, the Board of Animal Health, the Mississippi Fair Commission and the Mississippi Central Market Board in a ratio commensurate with the services provided by said attorney to each of the said agencies.
(2) The Department of Agriculture and Commerce, the Board of Animal Health, the Mississippi Fair Commission and the Mississippi Central Market Board are hereby authorized and empowered to expend such sums from any funds available for the purposes of paying the salary and expenses of the attorney provided for in subsection (1).
(3) In addition, the commissioner is authorized to appoint or employ special counsel pursuant to the provisions of Section 1 of this act.
SECTION 11. Section 83-1-5, Mississippi Code of 1972, is amended as follows:
83-1-5. The commissioner shall receive a compensation to be fixed by law. He is hereby authorized to employ a clerk and stenographer and an actuary at a salary to be fixed by law; and in addition shall be allowed a sufficient sum for traveling expenses and for extra clerical help.
Further, the commissioner may appoint or employ special counsel pursuant to the provisions of Section 1 of this act.
SECTION 12. This act shall take effect and be in force from and after July 1, 2012.
