1.4 Open Meetings, Public Records, Rulemaking Participation & Declaratory Opinions

Why three “administrative” rules earn exam items

Candidates skim Chapter 3 because the headings sound clerical. That is exactly why the Pass/Fail JP exam can use them. Rules 3.3, 3.4, and 3.5 are the only places the Board tells a licensee how to interact with the Board itself — how to get a record, how to be heard on a rule the Board is writing, and how to ask, in advance and in writing, whether a planned course of conduct is lawful. Every one of those procedures has a number attached, and numbers are what a jurisprudence item can test.

This OpenExamPrep section is independent study material for the applicant Pass/Fail JP exam. It is not a Board, Center for Credentialing & Education (CCE), National Board for Certified Counselors (NBCC), or American Counseling Association (ACA) publication, and it does not claim approval by any of them.

Rule 3.3: Open Meetings Law and the public-records procedure

Rule 3.3 opens with the easy half. The Board shall adhere to the Open Meetings Law, Miss. Code Ann. § 25-41-3 (1972), as amended. Read that next to Rule 3.2.F, which says all meetings of the Board are open to the public and that citizens are encouraged to attend. A stem that has the Board deciding a licensee's fate in a members-only session, with no notice, is fighting both rules.

The longer half is the Mississippi Public Records Act of 1983 (§§ 25-61-1 et seq.) procedure. Rule 3.3 exists to provide reasonable written procedures on the cost, time, place, and method of access. It expressly does not apply to a record that is exempt from the Act or not covered by it, so “the Board must hand over anything I ask for” is wrong before you even reach the form.

What a requester must actually do:

• Make a written request, signed by the individual, mailed to the Executive Director of the Board.
• Type or clearly hand print it on letter-size paper.
• Specify in detail the public record sought, including where possible a description of the type of record, the title of the publication, and other information that helps locate it.
• State the purpose — what the requester proposes to do with the record (inspect, copy, and so on).
• State the date and time proposed for that activity and the number of persons scheduled to participate.
• Provide name, address, and home and office telephone number.

What the Board must then do:

• The Executive Director reviews the request, determines whether the records are exempt under the Act, and shall either produce the records or deny access within seven (7) working days of receipt.
• Inspection, copying, or mechanical reproduction happens in the Board's offices, or another reasonable place within the State of Mississippi that the Board designates.
• Where possible, nonexempt material is separated from exempt material and only the exempt material is withheld.
• A denial must be accompanied by a statement of specific reasons, and denials are kept on file for inspection by any person for three (3) years.

The requester also carries a follow-up duty that candidates forget: it is the applicant's duty to contact the Executive Director by phone before noon of the first working day preceding the proposed date to confirm the date is acceptable and, if not, to arrange a substitute date or time.

Money is its own cluster. The Executive Director may estimate the cost of searching, retrieving from storage, reviewing, shipping, and duplicating, and may require payment in advance. The copy charge is $1.00 per page, and a sheet printed front and back counts as two pages. Mailing is charged at the applicable rate, and if notice must go to a third party by certified mail with return receipt, that cost is charged to the requester. If the actual cost exceeds the estimate, the Executive Director may withhold delivery or delay inspection until the difference is paid. There is no charge for inspecting current Board records at the Board office; the cost of retrieving records from state storage facilities, and searching for them, is charged to the applicant. The Executive Director may waive the written-notice, time-and-method-of-access, and prepayment requirements whenever doing so is in the public interest.

Finally, Rule 3.3 carries the agenda rule that Rule 3.2.H repeats: an individual who wants to be included on the Board's agenda must submit a written request that the Board receives at least ten (10) working days prior to the regularly scheduled Board meeting. Ten working days is not ten calendar days, and it is not “call the office that morning.”

Rule 3.4: oral proceedings on proposed rules

Rule 3.4 is the public's microphone during rulemaking, adopted under Miss. Code § 25-43-3.104 and sourced to § 25-43-2.105. It applies to oral proceedings held so the public can make oral presentations on proposed new rules and amendments before the Board.

The trigger is a counting rule. The Board will conduct an oral proceeding on a proposed rule or amendment if requested by a political subdivision, an agency, or ten (10) persons, in writing, within twenty (20) days after the filing of the notice of the proposed rule. Three ways to qualify; one deadline. A single unhappy licensee writing on day 25 does not compel a hearing.

The mechanics:

• Request format. Printed, typewritten, or legible handwriting, on standard business letter-size paper (8½ × 11). A letter addressed to the Board and signed by the requestor(s) is acceptable.
• Notification. The date, time, and place are filed with the Secretary of State's office and mailed to each requestor. The proceeding is scheduled no earlier than twenty (20) days from that filing.
• Presiding officer. The Chairperson or a designee familiar with the substance of the proposed rule presides.
• Who may speak. Persons wishing to present notify the Board at least one business day beforehand and indicate the general subject. The presiding officer may, in discretion, allow people who did not give notice.
• Identification. Participants state names and addresses, identify any persons or organizations they represent, and give other information the presiding officer deems appropriate.
• Time limits. The presiding officer may limit individual presentations for orderly and expeditious conduct, and may grant additional time to a speaker presenting the views of others as well as their own — the rule's built-in incentive to consolidate.
• No interruptions, except by the presiding officer where orderly conduct requires it.
• Submissions become the property of the Board and are then subject to the Board's public records request procedure under Rule 3.3. What you hand up at a rulemaking hearing is not a private letter.
• The Board may record the proceeding by stenographic or electronic means.

Connect this to the news items a candidate may have seen. When the Board posts a proposed rule for comment — the Rule 4.3 filing dated 01/29/2026, for example — Rule 3.4 is the procedure by which the profession is heard before that text becomes effective. Proposed is not effective. Study the effective compilation.

Rule 3.5: declaratory opinions

A declaratory opinion is the Board answering, in writing and in advance, whether a statute it administers or a rule it promulgated applies to your specified facts. Rule 3.5 is adopted under Miss. Code § 25-43-2.103 and is read together with the Mississippi Administrative Procedures Law; if the two conflict, the Administrative Procedures Law governs.

Who may ask. Any person with a substantial interest in the subject matter. The rule defines that phrase: an individual, business, group, or other entity directly affected by the Board's administration of the laws within its primary jurisdiction. “Primary jurisdiction” means the Board has a constitutional or statutory grant of authority in the subject matter at issue. Idle curiosity is not standing.

What it can cover. The applicability, to specified facts, of (1) a statute administered or enforceable by the Board or (2) a rule promulgated by the Board. The Board will not opine on a statute or rule outside its primary jurisdiction.

How to ask — the form trap. The request must be printed, typewritten, or in legible handwriting, on 8½ × 11 paper, and may take the form of a letter to the Board. It must be mailed or delivered to the Board office at 239 North Lamar Street, Suite 402, Jackson, MS 39201, marked ATTN: DECLARATORY OPINION REQUEST, and it must clearly state that it is a request for a declaratory opinion. No oral, telephone, or email requests will be accepted for official opinions. Name, address, and signature of the requestor must be included. A well-written email to the Board's general inbox is not a Rule 3.5 request.

The clocks. Within forty-five (45) days after receipt of a complying request, the Board shall, in writing, do one of three things:

1. Issue a declaratory opinion on the specified statute or rule as applied to the specified circumstances;
2. Decline to issue one, stating the reasons; or
3. Agree to issue one by a specified time, but not later than ninety (90) days after receipt of the written request.

The 45-day period begins running on the first Mississippi business day on or after the request is received. Then comes the clock candidates miss: a declaratory opinion does not become final until sixty (60) days after issuance. Before that, the Board may withdraw or amend it for any reason that is not arbitrary or capricious — including a determination that the request failed the rule's requirements or that the opinion contains a legal or factual error.

When the Board may refuse. Rule 3.5.D gives the Board good-cause discretion and then lists sixteen circumstances, including but not limited to these high-yield ones: the question is unclear; litigation or other adjudication is pending or anticipated that may answer it; the statute or rule is already clear; the facts supplied are insufficient; the request fails the rule's form requirements; the issue is moot, abstract, or hypothetical; no controversy exists; the request challenges the legal validity of a statute or rule; the request concerns past conduct rather than planning future conduct; no clear answer is determinable; the question involves a criminal statute or facts that may constitute a crime; the answer would require disclosing privileged or protected information; the question is pending before or answered by an Attorney General's opinion; a similar request is pending elsewhere or answering would be the unauthorized practice of law; the opinion could adversely affect the State's or the Board's interests in pending or expected litigation; or the question involves eligibility for a license, permit, or certificate for which a statutory or regulatory application process already exists.

That last one is the practical trap for this audience. “Will the Board accept my degree?” and “Do my out-of-state hours count?” are application questions, routed through the P-LPC/LPC application and the Rule 4.9 pre-licensure determination, not through a declaratory opinion.

Third parties and publicity. The Board may notify any person, agency, or entity that an opinion has been requested, and may receive and consider their data, facts, arguments, and opinions. Both the requests and the opinions are available for public inspection and copying under the Public Records Act and the Rule 3.3 procedure, indexed by name and subject, except where the content is confidential or exempt.

Effect — what the opinion buys you. The Board will not pursue any civil, criminal, or administrative action against a person who is issued a declaratory opinion and who, in good faith, follows the direction of the opinion and acts in accordance with it — unless a court of competent jurisdiction holds that the opinion is manifestly wrong. That is real protection, and it is conditional. Ignoring the opinion, or acting on a version of the facts you did not submit, is outside the shield.

Jurisprudence scenario: the licensee who emailed a question

An LPC in Meridian wants to launch a coaching product and is unsure whether it falls inside the practice of counseling/psychotherapy as Rule 1.4 and § 73-30-3 define it. She emails the Board's general inbox, writes “please send me a declaratory opinion,” and starts advertising two weeks later because nobody replied. She also asks a colleague to phone the office and “get the records on the last three cases like mine.”

Split the errors. The email is not a Rule 3.5 request — the rule says no oral, telephone, or email requests are accepted for official opinions, and the request must be signed, on letter-size paper, mailed or delivered, and marked ATTN: DECLARATORY OPINION REQUEST. Because no complying request was ever filed, the 45-day clock never started, and the good-faith protection never attached. Advertising on the strength of silence is exactly the position Rule 3.5.K was written to reward only for people who actually follow an issued opinion.

The phone call fails Rule 3.3 for the same structural reason: a public-records request must be written and signed, mailed to the Executive Director, and must specify the record in detail, the purpose, the proposed date and time, the number of participants, and contact numbers. Had she filed it correctly, the Executive Director would have had seven working days to produce or deny, a denial would have carried specific reasons and been kept on file three years, and copies would have run $1.00 per page with front-and-back sheets counted as two.

Change the facts once more. If her real question were “will the Board accept my out-of-state supervised hours,” a declaratory opinion is the wrong instrument — Rule 3.5.D excludes questions about eligibility for a license where a statutory or regulatory application process already determines it. That is an application question, or a Rule 4.9 pre-licensure determination if the issue is a criminal record.

Exam traps for this section

• Treating an email or phone call as a valid declaratory-opinion or public-records request.
• Confusing the 45-day first-response window with the 90-day outer limit on a promised opinion, or forgetting the 60-day finality window entirely.
• Reading the good-faith protection as absolute; a court holding the opinion manifestly wrong removes it.
• Assuming ten calendar days for the meeting-agenda request; the rule says ten working days.
• Assuming any number of complainants triggers a rulemaking oral proceeding; it takes a political subdivision, an agency, or ten persons, in writing, within 20 days of the notice filing.
• Believing the Board must produce exempt records; Rule 3.3 does not reach records exempt from the Public Records Act.