On February 1, 2019 the Mississippi Ethics Commission cited the Bay St Louis City Council for violating the Mississippi Open Meeting law in the matter styled Noonan v Mayor and Councilmen of the City of Bay St Louis. In what is a recurring theme with a different cast of characters, the City conducted an improper executive session which resulted in the removal of Ellis Anderson from the Bay St Louis Historical Preservation Commission.
The opinion is not yet on the Ethics Commission website but I have seen portions of it. Essentially the Council and Mayor in the City of Bay St Louis are on the receiving end of an ethics compliant that mostly resulted from not receiving good legal advice from Board attorney Heather Ladner Smith, who failed to caution the Mayor and Council not to act on an item which was not contained on the official meeting agenda. Smith, the politically connected daughter of Hancock County Tax Collector Jimmie Ladner took over as City Attorney when Trent Favre was appointed County Court Judge.
According to Mrs. Noonan, Ms. Smith of the Butler Snow law firm is providing legal services to the City without a formal written contract, a practice the previous administration was advised to discontinue by the Office of the State Auditor.
While Slabbed gathers information to update this post, those so interested should click here for additional background.
Update: Here is the final opinion referenced yesterday. The Council was tagged with not doing their executive session correctly and cites Councilman Smith for trying to conduct deliberations with a majority of the board via email. As Lana Noonan noted in comments today, Councilman Smith was led down the primrose path by City Attorney Heather Ladner Smith.
In the city attorney’s response document I received back from Ethics, a notation by Councilman Smith attached to his email to Council as an exhibit stated by him that city attorney assisted with email.
M-18-013 Ethics by on Scribd
Well done, Lana.
This needs to stop. If your don’t know the rules gets someone in to direct you!
Pam,
If you knew how much that bad advice is costing you folks in the Bay, you’d flip$$$$!!!!!
Lana, reading through multiple comments on Slabbed by you makes me feel as if you cause more trouble than you do good. You don’t live in Bay St Louis so maybe it would be best to create issues in the city you do live in. Many of your comments and quotes cited in the post refer to Mrs Smith as “a politically connected daughter to Tax Assessor Jimmie Ladner” which is true she is the daughter of Jimmie Ladner, but that has nothing to do with her qualifications for the position she holds for the city. If anything Mr Ladner is not the reason Mrs. Smith is where she is at professionally due to his contacts but instead due to his parenting and creating a outspoken, influential, daughter who fights for what is right instead of against people like you. As said on another comment on a post, it seems as if you have a personal issue with either Mr. Ladner or his daughter Mrs. Smith and that is not a validated excuse to continuously blast Mrs. Smith on this cite. A major issue in Bay St Louis as well as other cities is the fact that people are quick to tear others down instead of work together to lift people up, and you Ms Lana are a pure example of someone who seeks to tear people down. I hope that you one day sit down and realize what words on a blog can do to people… make sure you’re always stating facts and not just opinions you have created about people. If you want better then be better!
Bad information from Butler Snow? To borrow and paraphrase, I am shocked, shocked I say, to discover bad advice going on here! Or, if you prefer:
madisontimberreceiver.com/federal-proceedings-18-cv-xxx/
Slap on the hand, don’t do it again.
Same thing found on previous councilman folgoo. Emails sent out.
This is true, the first time is a slap on the hand. The second time gets more serious and so forth and so on. The better thing is to do it right and avoid the problem altogether. Bad habits die hard in the Bay.
Ward 5 here! Falgoo was replying to email. One of these violations we’re told is improper agenda and improper termination of Ms. Ellis Anderson. What is other one? Anyone know? Other is why no open applications posted like last time for School Board, Library Board, P&Z and Historical Board?
Alliance
Reason for executive session was good just Not specific enough for executive session to general. Same reason as used many times throughout the years by previous councils, pending litigation.
Stated they did right by voting on the termination in open session and not behind closed doors. Nothing
Email was sent but no response. Should have blind copied council. Slap
Now Posting Statement
It was stated by Ice they had over a year to put their input in for the school board.
NONE NONE was put in and Racist Reed comes up with one when the nomination is being made and Ice stated he still has not seen it. They didn’t even know our school ratings and has the ignorance to state the board has nothing to do with this.
Shame on them 🤡🤡🤡
What was the diversity makeup of the board and who was president?
Let me fill you in
Singleton President – free trip to Colorado on school funds and was not a board member
Bell next president – rang up outside Attorney fees because he didn’t like the board attorney’s answers but not approved by board
Thomas
Kid
The🤡🤡🤡🤡 went after Farve on Ethics and AG , All came back BS
Allowed singleton to go on trip
Put unqualified superintendent in place, brother workin under her,2 assistant superintendents, one being singleton’s god child, other has st. Rose ties to Labot’s
And Farve
4-1 votes
🤡🤡🤡🤡 are Happy
Recent pay raise and bell kidd vote no
And ask how many school board meetings has the haters attended.
Only reason they would not vote for Farve was the color of his skin!
One used diversity
Another father son
Playing the field and race card with our children’s future
You call it.
A great man once stated
that one day he hopes a person is judged on their character not by the color of one’s skin.
Something like that.
Have not seen any appointment to the library, not sure you problem here.
P&Z Historical has been advertised many times.
Not sure where you been.
Just watched last nights meeting again.
Sad
Hey Doug
You are 100% correct
They need to learn from the slap on the hand.
Stone,
One other important reason the Executive Session was wrong is the individual they discussed and acted upon was not a city employee. Personnel discussions do meet the criteria for Ex. Sess. however, the Historic Preservation Commissioners are citizen volunteers, not city employees (personnel). In the city attorney’s response document I received back from Ethics, a notation by Councilman Smith attached to his email to Council as an exhibit stated by him that city attorney assisted with email. That was very disappointing and disturbing.
We will continue to demand of these public bodies that they conduct the public’s business in the confines of state law. Period. It is just as easy as their clandestine manner of doing business.
Lana, The executive session was not about a individual. Not sure where you get this from.
It was about pending litigation.
It seems that this historical person crossed the lines by telling people to go on private property and they could have this house. Posted on web pages also. No owners permission. Way over board. Owners pissed. Blame them.
Not the first time this person crossed the lines with developers or homeowners or contractors.
I’m sure this person was brought up because she had the city in a bind because of her arrogance ass.
Wicked witch of the Bay let
💩💩💩💩 go to her head and out grew them britches. Thought she was untouchable and do what she wants.
Thank you Larry.
Same woman that fights the Adams guy by her illegal rental on 3rd st.
And again smith helped smith with the motion , not the email. That’s her job.
And yes they need to take the slap and learn from this.
But they are not the left wing bats trying to take the city over.
My thoughts is still a lot of personal ill feelings here against me. Smith
I really have no interest in who is on the Historic Preservation Commission. It was the process that I had issues with and Ethics upheld it. Read the complaint and Final Order
You don’t get to make up your own rules because you don’t like someone.
This woman can not put the city in the positions she did.
Again she crossed the line.
Again executive session was pending / possible litigation.
Just not specific enough.
I for one wish they get rid of that committee.
I think the problem with the Executive Session is that it was based on pending legal actions against the city because of the Historic Preservation Commission. When David Wells requested the Litigation List, and finally got it from the Mayor, there were no pending legal actions listed pertaining to HPC. Get it now.
Something I just noticed:
“According to Mrs. Noonan, Ms. Smith of the Butler Snow law firm is providing legal services to the City without a formal written contract, a practice the previous administration was advised to discontinue by the Office of the State Auditor.”
I do not know what the auditor advised, but an “informal” contract when it comes to governing boards is, informally speaking, a no-no. Generally speaking, either a contract is, to use the legal terms, “spread upon the minutes” or it is not, and if not, there is no contract. Plus, such contracts must have certain terms to be contracts. There isn’t enough information given to offer informed opinions, but if I were doing research into this, I’d certainly want to know what if anything was “spread upon the minutes.” A lack of a representation agreement or lawyer/client relationship could be a source of all sorts of problems for both the city and Butler Snow. If Butler Snow failed to ensure that its
representation of the board was not formalized in a (mutually-binding and properly-ratified) contract under plain old contract law as it pertains to governing boards, yet it collected fees under what would be a non-existent contract, that would not come as a big surprise to me. For those who want to research it, search for the terms “contract” and “spread upon the minutes” with any reporter (West, etc.) or even Google Scholar for Mississippi law.
The contrast with her predecessor, who did have a written contract is stark. Maybe Butler Snow doesn’t have a stock contract for legal services available. I don’t know because I’m not a lawyer. CPAs can’t sneeze without an engagement letter.
Nun and Doug,
I am not sure Mrs. Smith has a contract with Solid Waste Authority in Hancock County either. Seems like I asked for it sometime back, and was told they had none for her services there. That can be checked out.
Waveland City Attorney is under contract. I obtained a copy through former City Clerk, Planchard, and Trent had Council sign lots of paperwork at meeting for both of his firms–Jones Walker and when he moved to Wise Carter. Hello!!!
Lazy Council in the Bay now. At least previous Council fought it out with Les and Don until they got one.
Those interested in boards and contracts (and/or developments in the SRHS fiasco) might wish to read a couple of recent opinions by the MSSC in that fiasco, Jackson County v KPMG and KPMG v Jackson County. They can be found on the Court’s website:
courts.ms.gov/Images/Opinions/CO134953.pdf
and
courts.ms.gov/Images/Opinions/CO133601.pdf
I would further offer that “informal contract” is not really a valid term or thing in “legal-speak” although in lay terms or common speech it is a reasonable, even if legally-inaccurate, term used to describe what is really just an informal agreement between entities. From a legal standpoint, there is either a contract or there is not. A contract, depending on the particular circumstances, can be written or oral, but generally speaking, a contract with a government board which would be a valid and enforceable contract if “spread upon the minutes” is not so if that contract is not spread upon the minutes. I offer no opinion on any particular contract between any of these parties because I do not have enough information to form one.
I will say it seems reasonable to expect an attorney who represents government boards be readily familiar with the law applicable to government boards as well as the various law and “rules” covering attorneys and legal representation, especially the basic contract law applicable. Again, I cannot and will not speak for any of the parties involved here but if I were approached to represent or work for a government board in any capacity or advising a party planning to work for a government board I’d not only expect and require a formal written contract but also ensure its proper entry into the minutes, and do so for a variety of reasons.
Excellent links Nun!
Generally speaking and see my reply below, in Mississippi, a contract that is valid and mutually-enforceable by and against the parties when signed by people authorized to sign it if the parties are, for example, an accountant and a corporation, would not be a valid and enforceable one between that accountant and a government board until it was “spread upon the minutes.” In such a case, signatures, authorized or not, isn’t enough. If I recall correctly (and I may not), even if an otherwise-unauthorized signer signs for the board (or it is unsigned), it becomes de facto authorized for that contract if the contract is then spread upon the minutes. Also as best as I recall, what is spread upon the minutes is the contract, not what the contract might otherwise recite. In other words, if the contract calls for 20 hours of accounting at $250 an hour, but the minutes reflect a change to 30 hours at $200 an hour, the minutes control (I recall scrivener’s error(s) are treated as in standard contract law; if the recording person errs and records “2” or “200” hours rather than “20” as plainly intended by all parties, 20 is the enforceable term).
None of the above is an opinion, legal or otherwise, merely vague recollection from applicable case law.
Thank you for your insights. I need to hop on MEC and do some catching up.
“The contrast with her predecessor, who did have a written contract is stark.”
I have no opinion about either attorney, but again, I’d suggest – but in no way advise – that if the predecessor’s “written contract” wasn’t “spread upon the minutes,” the predecessor did not have _a contract_ regardless of what some written document, signed or not, might otherwise indicate.
Nunya Doug Lana
May be wrong but if I remember correctly ms. Smith was ratified by council and fees were set and voted on by council.
Same fees they were paying mr. Trent.
Maybe wrong?
It’s time to pop a cold one and examine the minutes!
I will be down in the Bay at some point next week. I’ll try to clear time to stop in at City Hall to see for myself.
There is more to a contract than just an hourly rate. When Nun said the contract has to be spread upon the minutes he is meaning the written agreement between the City and Smith’s law firm.
Be careful confusing what “the contract” might say and what the minutes reflect as _the contract_.
It is my understanding (and this isn’t advice, legal or otherwise) that whatever is “spread upon the minutes” is _the contract_. If nothing is in the minutes, there is no _contract_, even if every member of the board signed something in blood. Similarly, if the written contract calls for X but the minutes reflect _the contract_ calls for Y, the language in the minutes is _the contract_. It is also my understanding that the party(ies) to a contract with a board are responsible for insuring it is properly and correctly “spread upon the minutes” and claims of “a board member told us…” or “we assumed the board did…” will not succeed in the courts if the minutes are deficient and a breach is alleged or a dispute arises. If my understanding is correct, it would be reasonable to require verification by the contracting party because the “spreading” occurs (or does not occur) in a public meeting and the minutes are public record, so verification is a simple matter.
It is also my understanding the potential hammer swings both ways: for example, a city board fails to spread what it intends as a contract with a painter to paint the front of city hall by expertly prepping and applying 3 coats of premium paint over 2 coats of premium primer for $10,000. It pays the painter and he doesn’t so much as hose the building down, spot-primes a few areas and slaps on the cheapest paint he can find, i.e., he does “paint the front of city hall” (i.e., there is no viable criminal claim). The board could file a complaint, but there is no _contract_ containing the intended specs because the board failed to spread it upon the minutes, and best as I recall, theories of recovery like “quantum meruit” (Google it) and unjust enrichment will not apply for or against boards.
Those who really want to know more about MS case law and how the courts have ruled can get a good overview by going to Goggle Scholar and searching MS law for the term (in quotes) “spread upon the minutes.” The opinions there won’t be annotated like on West, but the whole opinion is there and with MS case law, the language is generally pretty straightforward (i.e., the reader doesn’t need to be fluent in legalese/bullshit and Latin, with a Black’s Law Dictionary at hand). Really, though, the links above to the MS Supreme Court website hand down of the opinions in the SRHS debacle will give a lot of information on the subject.
A review of the minutes would verify that of a PRR for a copy of the contract.