June 2012

BOARD OF PUBLIC CONTRACTORS

The Board of Public Contractors is authorized to expend certain funds appropriated in SB2995 (2012 Reg. Sess.) for employee education, in accordance with pertinent statutes and regulations. (Cardin, 6/29/2012)(#031)(OP-12-00313)

CIRCUIT COURTS

Whether the circuit court's Community Service Program can supplement the salaries of a circuit court administrator and staff attorney who work on the Program is a question which falls within the purview of and must be submitted for approval to the Administrative Office of Courts. (Landrum, 6/29/2012)(#043)(OP-12-00310)

COUNTIES-CLASSIFICATION

A county may replace a culvert if it is necessary to preserve and maintain the county roads and rights-of-way. A county, pursuant to Section 19-5-92.1 may replace or make necessary repairs to a culvert or, in the alternative, clean or clear a drainage ditch if the board makes a finding- consistent with the facts and spread upon its minutes-that the actions will promote the health, comfort and convenience of the inhabitants of the county. (Nowak, 6/29/2012)(#049)(OP-12-00319) It is permissible for the county to reimburse landowners for damages and injury resulting from the work performed by the county pursuant to Section 19-5-92.1 in cleaning or clearing a drainage structure. The county can make repairs to the damaged property or reimburse landowners for the costs of repair. (Neyman, 6/13/2012)(#049)(OP-12-00273) A county's right of re-entry for the purpose of cutting grass and weeds, and removing rubbish; personal property and other debris is two (2) years. Notice to the landowner should include language stating that the county has a right to reenter the property after the hearing for twelve (12) months or one (1) year for purposes of removing dilapidated buildings, dilapidated fences and outside toilets and twenty-four (24) months for the purposes of cutting grass and weeds and removing rubbish, personal property and other debris on the land. (Nowak, 6/15/2012)(#049)(OP-12-00306)

COURTS

A Justice Court Judge may consider the constitutionality of statutes. (Knight, 6/27/2012)(#056)(OP-12-00189)

CRIMINAL LAWS

A criminal offense in a justice court having two judicial districts must be tried in the district where the offense occurred. Therefore, if a traffic ticket is filed in the wrong district the court should dismiss the ticket without prejudice and the officer should file a new ticket in the proper district. (Ross, 6/13/2012)(#057)(OP-12-00267) Firearms seized by law enforcement and introduced into evidence should be disposed of pursuant to the terms of Section 97-37-3 of the Mississippi Code. The weapons may be sold at auction with the proceeds used to buy bulletproof vests for the seizing law enforcement agency. (Carr, 6/13/2012)(#057)(OP-12-00250)

E-911

The DeSoto County 911 Commission may use 911 funds to assist in the construction of communication tower facilities jointly with the DeSoto County Regional Utility Authority (DCRUA), after which DCRUA will actually retain ownership of the facilities, but the Commission will have the exclusive right to possession and control thereof. (Holland, 6/29/2012)(#062C)(OP-12-00282)

ENGINEERS & LAND SURVEYORS

Building design may be performed by both licensed architects and any registered professional engineer determined by the Engineering Board to be so qualified. (Brister, 6/29/2012)(#078)(OP-12-00209)

HOSPITALS-COMMUNITY

Whether the board of trustees retained any authority to terminate a pharmacy consultant contract negotiated and entered into by the administrator is a question of interpretation of the administrator's contract, as well as the termination provisions of the pharmacy consultant contract. (Tenner, 6/13/2012)(#092)(OP-12-00287) Neshoba County and the Neshoba County General Hospital are authorized to dispose of certain surplus real property owned by the county and the hospital under Section 19-7-3 if the requisite findings are made, without advertising for bids and without going through the process for sale of hospital property set out in Section 41-13-15. (White, 6/13/2012)(#092)(OP-12-00215) INTERLOCAL AGREEMENTS Interlocal Agreement and Addendum between Harrison County and the City of Biloxi for Tax Assessments, Tax Collections, and Tax Redemptions is approved. (Holleman, 6/29/2012)(#277)(OP-12-00334) Interlocal Governmental Cooperation Agreement between Sharkey County and Washington County for exchange of road and bridge equipment and materials is approved. (Woodard, 6/28/2012)(#277)(OP-12-00226) Interlocal Agreement between Natchez Water Works and the City of Natchez to provide engineering services to the City of Natchez is approved. (Brown, 6/12/2012)(#277)(OP-12-00268) Interlocal Agreement between Harrison County and Pearl River County, Mississippi regarding the sharing and/or combining of certain governmental operations to insure greater efficiency is approved. (Holleman, 6/1/2012)(#277)(OP-12-00253) Approval of Interlocal Agreement between Hinds County and Mississippi Agricultural and Livestock Theft Bureau concerning 800 MHz Trunked Radio System (Martin, 6/1/2012)(#277)(OP-11-00348) The Interlocal Cooperation Agreement between Pike County, Amite County, the City of McComb and the Pike County Economic Development District for the creation of the Scenic Rivers Development Alliance is approved. (Dowdy, 6/15/2012)(#277)(OP-12-00305) Interlocal Agreement between DeSoto County, Mississippi, The City of Hernando, The City of Horn Lake, The City of Olive Branch, and The City of Southaven for Reciprocal use of animal shelters. (Nowak, 6/25/2012)(#277)(OP-12-00316) Interlocal Governmental Cooperation Agreement between Harrison County and Pass Christian to allow for the sharing and combining of certain governmental operations is approved. (Holleman, 6/28/2012)(#277)(OP-12-00210) Interlocal Governmental Cooperation Agreement between Harrison County and Pass Christian Public School to allow for the sharing and combining of certain governmental operations is approved. (Holleman, 6/28/2012)(#277)(OP-12-00307) Interlocal Governmental Cooperation Agreement between Hancock County and Picayune regarding the collection of taxes by the county for the city is approved. (Ladner, 6/28/2012)(#277)(OP-12-00295) Interlocal Agreement between Pearl River County School District and the City of Picayune regarding the use of seed, soil and plants for horticulture education is approved. (Russell, 6/19/2012)(#277)(OP-12-00292) Interlocal Agreement between Adams County, the City of Natchez and the Natchez-Adams School District for a Joint Recreation Program and Facilities is approved. (Brown, 6/20/2012)(#277)(OP-12-00301) Interlocal between Columbus and Lowndes County relating to multi-jurisdictional drug task force is approved. (Turnage, 6/28/2012)(#277)(OP-12-00343)

LIQUOR LAWS

Senate Bill 2497 is not effective until such time it receives U.S. Department of Justice approval. Collecting petition signatures in support of calling a referendum on the matter prior to such approval could be challenged in or invalidated by a court of law. The term “alcoholic beverage” by definition, excludes beer and light wine. (Dunlap, 6/29/2012)(#109)(OP-12-00318)

MUNICIPALITIES

Where the provisions of a municipal special or private charter conflict with general law, the specific provisions of a special charter will take precedence over the provisions of the general municipal law. (Barton, 6/15/2012)(#139)(OP-12-00298) A municipality may transfer the subject sewer-related property to DCRUA, provided that the municipality complies with the requirements of Mississippi Code Annotated Section 21-27-33. (Dye, 6/13/2012)(#142)(OP-12-00261) Beginning July 1, 2012, we find nothing that would prevent a municipality from conducting post-accident drug and alcohol testing on an employee who has sustained an injury at work or asserts a work- related injury for workers' compensation purposes in accordance with Section 71-3-121. (Murdock, 6/13/2012)(#142)(OP-12-00288) A municipality may operate such retail facilities as are needful for the convenient use of the municipal harbor. (Holmes-Hines, 6/15/2012)(#142)(OP-12-00264) A mayor does not have the authority to "line-item" veto a portion of an ordinance of the board of aldermen. Once the mayor has "received" the ordinance, he/she has ten days to issue a veto of such ordinance, in accordance with Mississippi Code Annotated Section 21-3-15. Any attempt to later veto the ordinance, i.e., a "second veto", would be considered unsuccessful, as the mayor lacks the authority to veto such ordinance, once the ten day period runs. A mayor does not have the authority to demote a municipal employee or to reduce municipal employee salaries. Likewise, a mayor has no authority to appoint a police officer to be the police chief, as that authority specifically rests with the board of aldermen. (Cockerham, 6/11/2012)(#142)(OP-12-00262) A municipality may not donate municipal personal property to a non-profit corporation without specific statutory authority to do so. (Dye, 6/12/2012)(#142)(OP-12-00263) The Town of Caledonia should acquire the necessary easement and settle the claim by compensating the landowner pursuant to Section25-1-47(2) or hiring a landscaper to repair the damage resulting from the installation of the utilities lines. If the Town decides to settle the claim by making the repairs, it is not required to solicit or accept bids because landscaping is considered a service, which is exempt from the bidding requirements of Section 31-7-13. (Smith, 6/15/2012)(#142)(OP-12-00244) No authority exists which would authorize a governing authority to retroactively grant a tax exemption dating back to a prior time. (Williams, 6/28/2012)(#142)(OP-12-00302) If the appropriate factual findings are made by and placed in the minutes of the governing authority, Section 21-19-49 authorizes the City to waive permit or inspection fees as such would constitute an in-kind donation. (Mallette, 6/27/2012)(#142)(OP-12-00311) An alderman does not implicitly cast his/her vote simply by making a motion or seconding a motion. The alderman would still be required to cast his/her vote when the vote is called for by the mayor. (Montgomery, 6/29/2012)(#142)(OP-12-00314)

PUBLIC PURCHASES CONTRACTS AND BIDDING

Although the insurance adjuster solicited and received bids directly from the contractors for both reconstruction and remediation of a county-owned building that suffered fire damage, the reconstruction contract is subject to the bidding requirements of Section 31-7-13 if it exceeds $5,000.00 because it is a public construction contract. The determination of whether the remediation contract for smoke damage and clean-up is also a construction contract subject to the bid laws is a determination that must be made by the Board of Supervisors, depending on the nature of the work to be performed under the contract. (Whitehead, 6/29/2012)(#280)(OP-12-00299)

SCHOOLS

A community college is authorized to make expenditures for awards for exceptional performance by students, employees and others. However, in order to do so, the college's board of trustees must first make a finding that awards is necessary for the successful operation of the college. Then, expenditures for awards must result from a contractual obligation which (1) exists prior to an individual’s performance, (2) is based on predetermined objective standards, and (3) is subject to a stated maximum amount. (Clark, 6/15/2012)(#172)(OP-12-00275) If the aggregate amount of revenue from the Mississippi Gulf Coast Community College district's counties will be less than the previous year's revenue, then the four mill and three mill limitations in Section 37-29-437 must yield to the minimum revenue requirement in Section 27-39-320. (Holleman, 6/27/2012)(#172)(OP-12-00281) The newly formed school board appoints the superintendent of the reconstituted municipal separate school district. There is no authority for the municipal governing authorities to exercise any legal authority over the general operation of a municipal separate school district. (Barton, 6/29/2012)(#180)(OP-12-00333) A contract to install synthetic turf on a public school football field is a project that is subject to the bid requirements of 31-7-13. Thus, the school district cannot enter into a contract with a turf contractor which has proposed a method of selling ads to offset the entire cost of the project, without advertising for bids. (Donovan, 6/15/2012)(#180)(OP-12-00259) For informational purposes we offer the following discussion in response to your questions regarding the constitutionality of certain religious activities in public schools. (Tollison, 6/15/2012)(#187)(OP-12-00280)

SUPERVISORS

The Hancock County Port and Harbor Commission determines whether a specific act by its members constitutes a legitimate duty of the Commission for which a per diem, mileage and travel expenses is appropriate. (Ladner, 6/13/2012)(#220)(OP-12-00291) Section 19-3-42 authorizing county maintenance of a private drive used a school bus turn around would authorize application of ground asphalt as "gravel," but such maintenance must only be performed on a "gravel or shell" driveway, and thus the county would not be authorized to apply the ground asphalt to a paved asphalt driveway used as a bus turnaround. (Allen, 6/12/2012)(#220)(OP-12-00270) There is no authority for a county board of supervisors to use county equipment and employees for the benefit of a non-profit corporation providing food to the poor. The county may allow advertisements for the county to be placed in a brochure by a nonprofit pursuant to Section 17-3-1, and may provide in-kind services to the nonprofit as payment for such advertising, in the form of county employees and vehicles, but such services must be limited in value to, and must not exceed, the value of the cost of advertising. (Rhodes, 6/14/2012)(#220)(OP-12-00297) Providing garbage cans free of charge to private citizens would amount to an unauthorized donation. (Rhodes, 6/15/2012)(#220)(OP-12-00296) Under the authority granted to counties by Section 19-7-3, the Lincoln County Board of Supervisors is authorized to set a minimum price for the sale of a tract of real property containing timber and declining to sell the property for lower than that price. Accordingly, should the county not receive the minimum bid; the County could choose to sell the timber and the raw land separately. However, the County would not be authorized to advertise the property to be sold as a whole with the timber, and at public sale receive bids (1) on the timber only, (2) on the land with the timber severed, and (3) on the land with the timber intact, and take the bid that brings the most money. (Allen, 6/13/2012)(#220)(OP-12-00269) The Water Pollution Control Revolving Loan Fund Program does not grant independent authority for a county to own and operate a water or sewer system-rather; those statutes merely provide a funding mechanism for political subdivisions to construct water pollution control projects. Accordingly, a county may borrow funds from the Program for construction of a water pollution control project, including a sewer system, and the county may maintain ownership of the system, but the system must be operated by a city, a utility district or some other entity authorized by law to operate such system. (Jacks, 6/29/2012)(#220)(OP-12-00326) Multifamily residential garbage generators who have contracted privately for garbage collection services should not be counted in determining the number of customers to be billed to a county by a cooperative service district with whom the county has contracted to collect and dispose of garbage. (Meek, 6/13/2012)(#224)(OP-12-00274) If the Board now completes the laying out and road designation procedure pursuant to Section 65-7-57 which it began in 2008 but through oversight never completed, the Board may make a finding regarding this oversight and declare that the road is a county road. (Davis, 6/29/2012)(#231)(OP-12-00300)