Cassibry v. State, 52781
| Decision Date | 07 October 1981 |
| Docket Number | No. 52781,52781 |
| Citation | 404 So.2d 1360 |
| Parties | Napoleon "Nap" L. CASSIBRY, II v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Alvin M. Binder, Binder, Kirksey & DeLaughter, Jackson, Harold J. DeMetz, Gulfport, for appellant.
Bill Allain, Atty. Gen. by Karen A. Gilfoy, Asst. Atty. Gen., Jackson, for appellee.
Before SMITH, P. J., and BOWLING and HAWKINS, JJ.
This is an appeal by Napoleon "Nap" L. Cassibry from a misdemeanor conviction in the Circuit Court of Harrison County of violating Mississippi Code Annotated § 97-11-19 (Supp.1980), prohibiting a legislator from being interested in a contract with the state authorized by any law passed during his term of office or within one year after the expiration of such term. We affirm.
The issues raised on this appeal are:
(1) Whether the appropriation bill, voted on by the defendant, authorized a contract within the meaning of Mississippi Code Annotated § 97-11-19;
(2) Whether § 97-11-19 is unconstitutionally vague and therefore invalid;
(3) Whether the defendant was entitled to immunity as a matter of law because of his meeting with members of a Legislative Committee; and
(4) Whether the Circuit Court erred in refusing to permit defense counsel to examine a prosecuting witness's statement given to the Attorney General's office during the investigatory stage.
Under Title XX of the U.S. Code the United States Government has adopted comprehensive programs to assist handicapped children. 1 Such programs envision developing the intellectual, emotional, physical, mental, and social capacities of pre-school handicapped children; encouraging the participation of the parents of such children in their development; and acquainting the communities to be served with the children's problems and potentialities. Such children include those handicapped because of visual, hearing, or motor impediments, mental retardation, emotional disturbances, or of environmental, cultural or economic disadvantages. These programs have been generally called "Title XX Social Services."
Mississippi has taken advantage of these Federal programs through our State Department of Public Welfare, with this Department contracting for and supervising Mississippi Code Annotated § 43-1-17 provides:
their administration with various organizations in the communities of our State. The Department under monetary appropriation laws of the Legislature provides a percentage of the Federal funds to dispense to the needy and administer these Title XX Social Services, the major portion being federally funded.
The state department of public welfare shall cooperate with the federal government, its agencies and instrumentalities, in carrying out the provisions of any federal acts concerning public welfare, and in other matters of mutual concern pertaining to public welfare, including the adoption of such methods of administration as are found by the federal government to be necessary for the efficient operation of plans for public assistance and welfare services in accordance with the provisions of the Federal Social Security Act, as amended....
This is the basic statute under which the State Department of Public Welfare acts in cooperating with the Federal Government in rendering various social services to the inhabitants of Mississippi, including those provided under Title XX of the U.S. Code.
The defendant was elected to the Mississippi Legislature as a State Senator in November, 1975, to Post 2 of District 32, Harrison County, for a full four year term beginning the first Monday in January, 1976. He served until February, 1979, when he resigned. 2
On March 25, 1977, as a member of the State Senate he voted "aye" on House Bills 1389 and 1390, which became law on April 11, 1977, effective July 1, 1977, as chapters 227 and 228, Mississippi Laws, 1977. Both laws are appropriation laws, the first being an appropriation to the State Department of Public Welfare for the purpose of providing assistance and services, as required by law, for the fiscal year 1978; and the second, an appropriation to the Department for the purpose of providing for the purchase of services for the fiscal year 1978. The fiscal year 1978 commenced July 1, 1977, and ended June 30, 1978. 3
In 1977-78 the State Department of Public Welfare had 220 contracts with various agencies, associations and local districts throughout Mississippi for the purpose of assisting needy and handicapped inhabitants. At that time, Fred W. St. Clair was the Department's Commissioner. 218 of these contracts were with nonprofit organizations, including school districts, planning and development districts, and local community organizations organized to operate and deliver specific humanitarian services. These nonprofit organizations were reimbursed by the Department for actual expenditures on a monthly basis. In order to be reimbursed, these organizations were required to submit monthly statements itemizing every expenditure, with supporting documentation, which in turn was checked by Department personnel.
Two of the 220 total contracts were entered into with profit corporations, one being Developmental Learning Associates, Incorporated (DLA). The defendant, Senator Cassibry, was involved with this corporation.
The Articles of Incorporation of DLA dated July 20, 1977, reflect that this was a corporation organized for profit under the Mississippi Business Corporation Act, with a capitalization of $5,000, consisting of 50 common shares with a par value of $100 each. On July 21, 1977, the Articles were certified by the Secretary of State, and the Board of Directors named were W. C. Maples, Henry V. Leon, Lillian A. Hayden and Max Edrington. The stated corporate purposes were "to ... conduct educational and training activities that relate to learning disabilities and/or deficiencies, behavior modification, and motivation enhancement The defendant was the attorney for this corporation from its inception; he prepared the Articles and submitted the document to the Secretary of State for approval.
in children and adults, together with consultation to improve understanding and attitudes through education."
Shortly prior to the formation of DLA, Commissioner St. Clair informed Mr. Cassibry that while the Department was legally authorized to contract with a profit corporation as well as a nonprofit organization, the Department suggested a nonprofit corporation. Mr. Cassibry informed the Commissioner that since professionals were involved, it would not be worthwhile or in their best interest to form a nonprofit corporation. 4 The Commissioner then agreed to contract with DLA as a profit corporation and to pay the corporation the fixed amount of $369,500.00. Thus, rather than being reimbursed actual expenditures, DLA was to submit periodic statements of services rendered, to be paid pursuant to the contract.
The legal division of the Welfare Department also recommended that a performance bond be required of DLA in the amount of the contract. Mr. Cassibry, however, prevailed upon the Department to reduce the performance bond to $10,000.00. 5
On August 1, 1977, the Department and DLA entered into a contract for the period August 14, 1977 August 14, 1978, with DLA to be paid for all services rendered, the total compensation $369,500.00. As a prerequisite to the contract the Department required a detailed proposal from DLA setting forth the area to be served, its needs, and how DLA proposed to meet them. This proposal was made a part of the contract. (R. 393-430).
Under the proposal DLA obligated itself to provide social services and training to 1,281 handicapped children in George, Hancock, Harrison, Jackson, Pearl River and Stone Counties. The proposal begins by noting the professional recognition of the growing number of public problems encountered as a result of underprivileged and handicapped children whose growth and development are stunted through inattention and neglect in their early years, rendering them incapable of independence and productivity when they mature.
DLA proposed to identify these problems in early childhood of 1,281 children, deal with them through specialized training, and thereby have far-reaching impact on the children, their families and the State. Individualized training would be provided, breeding confidence, motivation for more learning, and responsibility. The program was to reach children who were ignored, or not otherwise adequately treated or trained by public or private institutions or methods. From the Head Start centers of the six counties serving 3,417 children, approximately 1,281 handicapped children, ranging from three to 5.11 years in age, with behavioral or social maladjustment were to be selected from observation and specialized testing, and thereafter trained and treated, so as to alleviate their handicapping conditions.
The proposal states that "the DLA Staff, with unique background, training, experience, and interest in these children will bring the best expertise to serve these handicapped children." (R. 387).
There were 39 Head Start centers in the six counties. DLA agreed to conduct two orientation sessions of two hours each for the teachers and administrators at each center, for which it was to be paid a total of $15,600.00 ($200.00 per session). The same was also to be conducted for the children's parents.
The 1,281 children were to be divided into 196 groups. For each of these groups, DLA obligated itself to conduct one four hour session each month for 9 months at a The total of the above charges amounted to $318,536.00. DLA then had a total estimated administration charge of $50,964.00, making the total contract price $369,500.00. DLA was to make periodic or monthly statements setting forth which of the above services had been rendered, and was to be compensated accordingly.
charge of $154 per session,...
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