May 2012

CHANCERY CLERKS

The Mississippi Ethics Commission is charged by statute with issuing advisory opinions regarding potential conflicts of interest. We are forwarding a copy of your request letter to the Mississippi Ethics Commission for response. (Joiner, 5/11/2012)(#041)(OP-12-00236)

CORONERS (MEDICAL EXAMINERS)

A coroner's vehicle should be marked with blinking, oscillating or rotating amber lights and may use alternating flashing headlights when responding to any emergency. (Barnett, 5/22/2012)(#047)(OP-12-00148)

COURTS

A municipal judge is appointed by the board of alderman and is paid by the city. (Buck, 5/4/2012)(#056)(OP-12-00230) Cameras are not allowed in justice courtrooms unless they meet the exceptions in Canon 3B (12) of the Code of Judicial Conduct. (Lyons, 5/4/2012)(#056)(OP-12-00229)

ELECTIONS-GENERAL

Pursuant to Section 23-15-229, municipal poll managers are to be paid a minimum of Seventy-five Dollars ($75.00) for working the polling place on election day, and the governing authorities of the municipality may, in their discretion, pay poll managers up to an additional Twenty-five Dollars ($25.00). Furthermore, the manager who acts as the officer delivering election day materials from the courthouse to the polling place shall be entitled to receive an additional Ten Dollars ($10.00), and the manager who acts as the returning officer shall be allowed an additional Ten Dollars ($10.00). (Gabriel, 5/22/2012)(#067)(OP-12-00252)

HOSPITALS-COMMUNITY

A member of a board of a public entity cannot change or rescind his vote on a matter already voted upon unless the matter is presented again to the board for a vote on a new motion, such as motion to reconsider. This can be done at any time, either prior to adjournment of the meeting or at any subsequent meeting, even after approval of minutes. (McDonald, 5/21/2012)(#092)(OP-12-00245) Hospital is authorized to enter into a five (5) year contract with a provider of emergency room services. (McDonald, 5/20/2012)(#092)(OP-12-00246)

INTERLOCAL AGREEMENTS

Interlocal Agreement between the City of Meridian and Lauderdale County for the joint and cooperative efforts for road, land and access work on the public streets of the City is approved. (Barry, 5/25/2012)(#277)(OP-12-00276) Interlocal Agreement between Amite County and Franklin County for the housing of inmates is approved. (Halford, 5/29/2012)(#277)(OP-12-00290) Interlocal Governmental Cooperation Agreement between Pike County and the Town of Osyka regarding collection of ad valorem taxes is approved. (Dowdy, 5/29/2012)(#277)(OP-12-00176) Approval of Interlocal Agreement between DeSoto County and the cities of Olive Branch and Southaven providing for the 2012 Byrne Justice Assistance Grant. (Sorrell, 5/23/2012)(#277)(OP-12-00272) The Second Amendment to Second Amended Regional Economic Development Alliance Agreement, adding the issuance of refunding bonds as a project under the Agreement regarding the Bass Pro Shops/Bloomfield Project is approved. (Johnston, 5/2/2012)(#277)(OP-12-00233) Interlocal Governmental Cooperation Agreement between Harrison County and the Gulfport School District for the purpose of combining certain governmental operations is approved. (Holleman, 5/29/2012)(#277)(OP-12-00202) Interlocal Governmental Cooperation Agreement between Harrison County and the City of D'Iberville regarding collection of ad valorem taxes by the County on behalf of the City is approved. (Holleman, 5/29/2012)(#277)(OP-12-00203) Interlocal Governmental Cooperation Agreement between Pike County and the Town of Summit for collection of ad valorem taxes is approved. (Dowdy, 5/29/2012)(#277)(OP-12-00175) Interlocal Governmental Cooperation Agreement between Pike County and the City of McComb for collection of ad valorem taxes is approved. (Dowdy, 5/29/2012)(#277)(OP-12-00178) Interlocal Governmental Cooperation Agreement between Pike County and the City of Magnolia for collection of ad valorem taxes is approved. (Dowdy, 5/29/2012)(#277)(OP-12-00177) Interlocal Governmental Cooperation Agreement between Harrison County and the City of Biloxi for the purpose of combining certain governmental operations is approved. (Holleman, 5/29/2012)(#277)(OP-12-00201) Interlocal Governmental Cooperation Agreement between Harrison County and the City of D'Iberville for the purpose of combining certain governmental operations is approved. (Holleman, 5/29/2012)(#277)(OP-12-00204) Interlocal Agreement between DeSoto County, Mississippi and the Horn Lake Creek Basin Interceptor Sewer District regarding purchases of materials is approved. (Nowak, 5/22/2012)(#277)(OP-12-00239) Approval of Interlocal Agreement between DeSoto County and the City of Horn Lake providing for a regional response team. (Neyman, 5/30/2012)(#277)(OP-12-00289) Approval of Interlocal Agreement between DeSoto County and the City of Hernando providing for a regional response team. (Neyman, 5/30/2012)(#277)(OP-12-00260)

LEGISLATIVE

Amendments to 17-2-7 and 17-2-9 contained in H.B. 773 would not apply retroactively and thus, structures listed in those statutes which were previously exempt would be required to come into compliance with the local Floodplain Management Ordinance. (Ross, 5/1/2012)(#104)(OP-12-00207)

MISS. EMPLOYMENT SECURITY COMMISSION

The Department of Employment Security is authorized to submit a portion of the debt to the State Fiscal Officer for collection under Section 7-7-43. (Garrett, 5/11/2012)(#261)(OP-12-00193)

MUNICIPALITIES

With regard to insecure or dangerous buildings, walls, and other erections, a municipal governing authority has the authority under Section 21-19-21 to either take down and remove the buildings, walls, and superstructures that are insecure or dangerous and assess the costs to the owner, or to demand that the owner remove or render the same secure and safe at the cost of the owner. (Burchfield, 5/4/2012)(#142)(OP-12-00151) A mayor may veto any action of the board of aldermen, except for a negative vote. Pursuant to Mississippi Code Annotated Section 21-3-15(b). The statutory provision contemplates the presentation of a written ordinance to the mayor, once it has been approved by the board of aldermen. Once the written ordinance is received by the mayor, his/her authority to veto said ordinance is triggered and the ten day time period for mayoral veto begins to run. If a separate written ordinance is not delivered to and received by the mayor, then it is, in effect, deemed received upon approval of the minutes. (Austin, 5/21/2012)(#142)(OP-12-00214) A governing authority may reconsider any action taken by it, provided that the reconsideration does not impair contractual obligations already entered into by the board or work to the harm or detriment of those legally entitled to rely on and actually relying on the board's previous action. In this case, a vote to rescind the termination of the referenced employee would be equivalent to a rehiring of said employee. Furthermore, the mayor may veto an action to rescind a previous vote by the board of aldermen, as her/she is authorized to veto any action of the board of aldermen, other than a negative one. (Austin, 5/22/2012)(#142)(OP-12-00242) The governing authorities of the municipality may accept the dedication of the subject streets, should it desire to do so, upon making the requisite factual findings and may maintain such streets as other municipal streets. With respect to the placement of the gates at the entrance/exit of the subdivision, the municipality may permit such placement, provided that it finds that the gate is necessary to preserve good order or to prevent injury to persons or property and that the public streets remain fully and equally accessible to all members of the general public. In response to your inquiry regarding the construction standards of the streets, it would be within the discretion of the governing authorities whether to require the streets to be brought up to current standards. (Stockton, 5/22/2012)(#142)(OP-12-00243) Mayors have an affirmative duty to insure that municipal ordinances are enforced. Questions of liability involve mixed issues of law and fact which can only be resolved by a court of competent jurisdiction. (Riley, 5/4/2012)(#142)(OP-12-00213) There is no authority for a municipality to issue a tax deed to the proposed individual county tax sale purchaser without collecting property assessments or delinquent taxes that are due and owing to it. There is no authority to reduce the amount of delinquent taxes or assessments owed to a municipality even when the fair market value of the subject property is less than the amount owed it, as such would be considered a release or remittance of liability owed to the municipality. (Hollingsworth, 5/1/2012)(#142)(OP-12-00194) The municipality, in its discretion, may set aside municipal property to be used for the operation of the farmers' market, however, barring a statutory exemption, must receive fair market value for such use, so as to not result in an unlawful donation. In regard to the dedication of municipal assets and expenditures, the municipality is specifically authorized to expend monies for the purpose of establishing and operating a farmers' market. (Mallette, 5/1/2012)(#142)(OP-12-00216) When no newspaper has a business office within the corporate limits of a municipality and the municipal governing authorities determine that more than one newspaper meets the statutory requirements to publish legal notices for the municipality, each of those newspapers would be entitled to submit bids for a contract to make such publications. (Sorrell, 5/1/2012)(#142)(OP-12-00198) A municipality is authorized to make improvements to private property, provided that such improvements are for the purpose of preventing erosion or other drainage problems. (Tyner, 5/29/2012)(#142)(OP-12-00249)

OPEN/MEETINGS/OPEN RECORDS

If an alderman request copies of the town's bank statements to compare with the claims docket, the alderman should be provided with the bank statements. Generally, a town's bank statements are not exempt from inspection under the Mississippi Public Records Act. (Custom, 5/29/2012)(#272)(OP-12-00257)

PLANNING & DEVELOPMENT DISTRICTS

An economic development authority is not authorized by 19-5-99 to first construct, or provide funds for the construction of, a building, donate that building to a private industry, then purchase that same building from the industry and lease/purchase the facility back to the industry. (Ashore, 5/29/2012)(#167A)(OP-12-00186)

PORT COMMISSION

Based on the clear amended language of Section 59-11-3(2), members of the Hancock County Port and Harbor Commission are entitled to per diem compensation and reimbursement of mileage and actual travel expenses for performing duties of the Commission over and above the attendance of official meetings. Whether a specific act constitutes a legitimate duty of the commission for which per diem, mileage, and travel expenses is appropriate is a question of fact to be determined by the Hancock County Board of Supervisors. (Ladner, 5/4/2012)(#159)(OP-12-00222)

PUBLIC PURCHASES CONTRACTS AND BIDDING

The public entity is not obligated, nor authorized, to accept an increase in a bid price, regardless as, to the source of the increase. (Holmes, 5/4/2012)(#280)(OP-12-00218) Section 31-3-21(3) specifically requires that a non-resident bidder include a copy of the non-resident state's preference law with his/her bid. In the event that there is no state preference law, the non-resident bidder is not required to attach a copy of a non-existent law. Whether there is a state preference law is a determination to be made by the public entity. Section 31-3-21(3) makes no reference to court opinions or preference laws of political subdivisions of the state. (Williamson, 5/1/2012)(#280)(OP-12-00228)

RETIREMENT-PUBLIC EMPLOYEES

Where deductions for employee contributions were made and collected by the Town in error, the Town is authorized to return such amounts to the individual. However, employer contributions, made by the Town on behalf of the individual in error, remain the property of the Town and may not be paid to the individual. (Hallmark, 5/1/2012)(#170)(OP-12-00224)

SCHOOLS

The Newton Municipal School District is required to adhere to the requirements of Federal law if it chooses to hire non-immigrant workers. In doing so, the District would be responsible for paying all processing, including attorney fees, related to the approval of the H-1B application, and complying with state law when contracting with licensed or unlicensed personnel. (Logan, 5/11/2012)(#206)(OP-12-00058) No authority exists which allows a school board to re-instate a non-licensed employee who has been terminated by the superintendent. (Keith, 5/11/2012)(#211)(OP-12-00190)

SHERIFFS-AUTHORITY

Sheriff may deduct up to $10 per visit from an inmate's commissary fund to offset the actual cost of transportation as well as the actual costs of the medical care, for transporting an inmate to the doctor's office. (Akins, 5/22/2012)(#213)(OP-12-00160)

SUPERVISORS

County board of supervisors may contract with a private company to install indoor digital message boards which would display both useful county information, as well as advertising sold by the third party (Martin, 5/29/2012)(#220)(OP-12-00219) Pursuant to its home rule authority, a board of supervisors is authorized to adopt a policy requiring that candidates for county employment be subjected to comprehensive background checks, including verifying a potential employee's criminal history, motor vehicle history and whether they are on the state sex offender registry. Such checks may be performed by the Sheriff's department for the county. A drug-testing policy adopted by the board of supervisors does not have to be implemented by the sheriff, tax collector, tax assessor, chancery or circuit clerk, for their employees, if those elected officials choose to adopt their own system of personnel administration. (Nowak, 5/29/2012)(#220)(OP-12-00067) A county board of supervisors may lease land in excess of 2 acres for a county barn if the land and facility are used substantially and continuously for other official county purposes. (Clark, 5/1/2012)(#220)(OP-12-00196) While statutes of limitation in civil matters do not run against the county, they do run in favor of the county against claims of unpaid compensation. Therefore, a tax assessor/collector is entitled to unpaid compensation due him only for the past three (3) years. The three (3) year period begins to run when the claimant first had the right to demand payment from the county. (Moore, 5/1/2012)(#220)(OP-12-00211) This office has previously recognized the authority of a county to sell surplus property pursuant to Section 19-7-3 and likewise grant appropriate easements for ingress and egress to the subject property. Therefore, a county may lease surplus property pursuant to Section 19-7-3 and grant appropriate easements to the leased parcel. If the board wishes to amend its current lease or grant an easement to the property currently leased, it is under an obligation to follow the publication requirements found in Section 19-7-3(2)(a). (Gibson, 5/11/2012)(#220)(OP-12-00231) The county is authorized under Section 39-15-1 to contribute matching funds to the Foundation for the purposes stated, so long as the board of supervisors makes the appropriate findings. The statute allows for a dollar-for-dollar match of any funds contributed to the Foundation and does not limit the amount of county general funds which can be used for the match. (Coleman, 5/22/2012)(#226)(OP-12-00241) The provision of Section 95-13-1 of the Mississippi Code does not apply to Harrison County, Mississippi. (Holleman, 5/1/2012)(#227)(OP-12-00101) Unless a landowner's actions in removing the dirt or timber from the county road right-of-way adversely affects the roadway, the county would have no authority to prevent him from doing so. (Slover, 5/1/2012)(#231)(OP-12-00119)

TAXES

A board of supervisors is authorized to determine that a property owner does not owe penalties and interest for unpaid taxes under 27-41-11, when an error by the tax assessor resulted in the owner not having been assessed. (Mangum, 5/11/2012)(#236)(OP-12-00238) The Tax Assessor/Collector, as the employing officer, is responsible for implementing a system of personnel administration which ensures that his employees work the hours required by their positions and that their pay amounts accurately reflect the salary rate set by the Tax Assessor/Collector. (Allen, 5/4/2012)(#237)(OP-12-00199)

UTILITY DISTRICTS

A fire protection district is not required to include the county board of supervisors as a party to fire-service contracts with volunteer fire departments in the district's designated areas. Once funds are appropriated to the fire protection district by the county, the district has sole discretion as to how the funds are used, subject to the limitations imposed upon fire insurance rebate funds. The district does not have to seek the board of supervisor's approval before making expenditures on behalf of the District, nor does the board of supervisors have the authority, when paying requisitions on behalf of the District, to withhold payment of the requisitions. (Watt, 5/1/2012)(#266A)(OP-12-00200)

WATER DISTRICTS

Town Creek Master Water Management District is a political subdivision and is exempt from the payment of sales tax on purchases under code sections specified in MCA Section 27-65-105(a). (Sparks, 5/29/2012)(#266)(OP-12-00265)