September 2008

ARCHIVES & HISTORY

The statutory amendment to Mississippi Code Annotated Section 25-60-5, provided by Senate Bill 2770 (Laws of 1997, Regular Session), authorizes municipalities and participating counties to collect the filing fee imposed by said section on any court filings filed in any court subject to its respective jurisdiction. (Holmes, 9/5/2008)(#015)(OP-08-00445)

CORONERS (MEDICAL EXAMINERS)

A county-owned vehicle may not be used by a coroner to travel to and from a private job. (Weaver, 9/22/2008)(#047)(OP-08-00444)

COUNTY OFFICERS

The office of county surveyor is an elected constitutional office. Where no one qualifies to run, the county board of supervisors is required to make an interim appointment and take such action required by law to fill the vacancy as with other vacancies in county elective offices. The office of county surveyor is fee-paid; thus the county is not responsible for the compensation of county surveyors. (White, 9/5/2008)(#053)(OP-08-00453)

COURTS

A judge must disqualify himself in a proceeding in which his son is acting as a lawyer pursuant to Canon 3 of the Code of Judicial Conduct. (Pounds, 9/19/2008)(#056)(OP-08-00487) The youth court is authorized to institute informal adjustment by referral to public or private agencies which may provide benefits, guidance or services to the child, his parent, guardian or custodian. (Mord, 9/5/2008)(#056)(OP-08-00447) One who claims possession of property under a foreclosed deed of trust or mortgage may use the remedy of unlawful entry and detained to remove an individual from the property. (Erby, 9/5/2008)(#056)(OP-08-00459) If an objection is filed to a grand jury subpoena seeking the production of documents, the grand jury should file a motion to compel to be heard by the Circuit Court. (Lawrence, 9/12/2008)(#056)(OP-08-00405) A justice court may set bond with conditions on a felony. In the event the defendant violated the conditions of the bond, jurisdiction to revoke or modify the bond would lie with the Circuit Court. (Dearman, 9/12/2008)(#056)(OP-08-00463) A justice court may charge a fee not exceeding $50.00 for the dismissal of any criminal affidavit pursuant to Section 25-7-25 (2). (Branch, 9/19/2008)(#056)(OP-08-00468) The Mississippi Secretary of States Office provides regulations concerning seals to be used by notaries public. (Avila, 9/26/2008)(#056)(OP-08-00483)

DEPARTMENT OF WILDLIFE, FISHERIES, & PARKS

Where the amount of a reforestation project described in a MDWFP appropriations bill exceeds the $100,000 threshold in Section 25-9-120, the project must be awarded in conformance with the rules and regulations of the Personal Service Contract Review Board. (Polles, 9/22/2008)(#269)(OP-08-00477)

ECONOMIC DEVELMENT DISTRICTS

The Lamar County Economic Development District may sell the property described in accordance with the procedures described for the disposal of surplus property contained in Section 19-7-3 (Smith, 9/26/2008)(#266C)(OP-08-00490)

ELECTIONS-BALLOTS

Where the Secretary of State issues a sample ballot which violates the order of offices set out in Section 23-15-367(2), the chairman of the county election commission has the authority and duty to place the offices on the county's official ballots in the order required by Section 23-15-367. (Bracey, 9/10/2008)(#063A)(OP-08-00516)

INDIANS

Membership in the United Cherokee Nation does not result in transfer of jurisdiction in child custody matters. Furthermore, we are of the opinion that unless otherwise ordered by a U.S. court, Indian children who do not reside on an Indian reservation are subject, along with their parents, to the laws of Mississippi and the jurisdiction of Mississippi courts. (Davis, 9/5/2008)(#270)(OP-08-00410)

INTERLOCAL AGREEMENTS

The Interlocal Cooperation Agreement between Jasper County and the Town of Louin for collection of all municipal ad valorem taxes is approved. (Ishee, 9/19/2008)(#277)(OP-08-00469) Interlocal Cooperation Agreement between the City of Jackson and Hinds County for the resurfacing of streets within the city limits is approved. (Johnson, 9/12/2008)(#277)(OP-08-00475) Interlocal Cooperation Agreement between the Gulfport-Biloxi Regional Airport Authority and the City of Gulfport for airport road improvements/maintenance. (Long, 9/12/2008)(#277)(OP-08-00509) Interlocal Cooperation Agreement between the Gulfport-Biloxi Regional Airport Authority and the City of Gulfport for 8th Avenue Access Road is approved. (Long, 9/11/2008)(#277)(OP-08-00508) Approval of Interlocal Agreement between Newton County and Town of Decatur for collection of ad valorem taxes. (Mangum, 9/17/2008)(#277)(OP-08-00533) Approval of Interlocal Agreement between Leake County, the Sheriff of Leake County and the Leake County Board of Education providing law enforcement assistance. (Webb, 9/18/2008)(#277)(OP-08-00460) Approval of Interlocal Agreement between Newton County and Town of Hickory for collection of ad valorem taxes. (Mangum, 9/17/2008)(#277)(OP-08-00534) Approval of Interlocal Agreement between Newton County and City of Newton for collection of ad valorem taxes. (Mangum, 9/17/2008)(#277)(OP-08-00482) Approval of Interlocal Agreement between West Point School District and the City of West Pont, where city will provide to the personnel to the school district for traffic control at entrances to the schools. (Storey, 9/5/2008)(#277)(OP-08-00466) Approval of Interlocal Agreement between Marion County, the Sheriff of Marion County, , the town of Bassfield, the Police Chief of Bassfield and the Office of the District Attorney providing for the establishment of the Pearl River County Narcotics Task Force of 2008-2009 (McDermit, 9/4/2008)(#277)(OP-08-00414) Interlocal Agreement between the City of Jackson and Hinds County for 2008 Byrne Justice Assistance Grant is approved. (Pugh, 9/23/2008)(#277)(OP-08-00495) Approval of Interlocal Agreement between Clay County and West Point concerning a flash cam for the Clay County sheriff's office. (Ross, 9/9/2008)(#277)(OP-08-00422)

JUSTICE COURT JUDGES

From and after October 1, 2008 a justice court judge?s salary is the greater of (A) the amount paid to a member of the board of supervisors in the same county in which the justice court judge resides or (B) 103% of the salary currently authorized for justice court judges in that county. (Knight, 9/5/2008)(#100)(OP-08-00435) The language in Section 75-17-7 plainly states a judgment rendered on a contract must award interest at the interest rate specified in the contract. The judge does not have discretion to change the interest rate. The interest starts as of the date of the judgment and ends when the judgment is paid. (Avila, 9/26/2008)(#100)(OP-08-00481)

MISS. AUTHORITY FOR EDUCATIONAL TELEVISION

In a lease by EdNet of state-owned and licensed channels to a third party (or parties), the third party may use the channels for any purpose and is not limited to educational television. However, any consideration received by EdNet for use of the bandwidth must be used to further the stated purpose of 37-63-9 of providing educational television services to educational institutions an interested citizen in the state. Also, such lease, done without consideration, would amount to donation in violation of Section 66 of the Mississippi Constitution, as would allow the third party access to all state-owned transmission equipment and facilities without consideration. (Clark, 9/26/2008)(#118)(OP-08-00395)

MUNICIPALITIES

A municipal tennis pro may not collect fees for private lessons, tennis clinics and camps conducted on municipal tennis courts during times in which the tennis pro is on duty and being paid a salary by the city. (Pollard, 9/12/2008)(#149A)(OP-08-00473) Subject to any limitations established under USERRA, a municipal employee who is a military reservist called to an extended period of active duty is entitled to claim each calendar year the employee remains under military orders the 15 days of military leave described in Section 31-1-21 (Belk, 9/5/2008)(#149A)(OP-08-00467) A municipality may settle a doubtful claim, pursuant to Section 25-1-47, provided that a legitimate, lawful, bona-fide claim has been presented to the municipality and it has made the requisite factual findings. Such settlement would not result in a violation of Section 96 of the Mississippi Constitution as the compensation would, presumably, be made as a settlement of a claim as contemplated in Section 25-1-47 and not "additional" or "extra" compensation. (Whittington, 9/19/2008)(#142)(OP-08-00501) A municipality may join, pursuant to its home rule authority found in Section 21-17-5, a local credit union established under Section 81-13-1 et seq., provided it meets the requirements for membership set forth in Section 81-13-13. (Hubbard, 9/19/2008)(#142)(OP-08-00461) A utility debt may not be adjusted nor forgiven when a customer has received the benefits of the utility service, regardless of a municipality's error in billing, as such would result in a violation of Article 4, Section 100 of the Mississippi Constitution. The method of recovery of any underpayment is best left to the discretion of the governing authorities, provided that such does not result in a violation of the Mississippi Constitution. (Williams, 9/12/2008)(#142)(OP-08-00478) A municipal park commission must make the factual determination as to whether a proposed expenditure is legitimate, subject to judicial review. (McAlpin, 9/12/2008)(#142)(OP-08-00489) When a municipality seeks to increase its ad valorem millage rate, pursuant to Section 27-39-205, it may not exceed the amount of the ad valorem millage increase it provides in its published notice. (Butler, 9/19/2008)(#142)(OP-08-00517) The city council of a mayor-council municipality may not suspend employees. The city council may request information from and employee and compel a response. (Mitchell, 9/5/2008)(#142)(OP-08-00479)

OPEN/MEETINGS/OPEN RECORDS

The proposed tour of the courthouse to be conducted by three members of the board of supervisors will constitute a meeting under the Open Meetings Law. (O'Donnell, 9/12/2008)(#272)(OP-08-00446)

OTHER STATE AGENCIES, BOARDS & COMMISSIONS

The Beaver Control Advisory Board nor the Mississippi Wildlife, Fisheries & Parks Commission has no authority, pursuant to Miss. Code Ann. Section 49-7-201, to require a fee that exceeds the statutory limit for participation in the Beaver Control Program. Furthermore, we are of the opinion that upon payment of the statutory participation fee by Rankin County, the Beaver Control Advisory Board is obligated to provide beaver control assistance to Ranking County pursuant to state law. (Slay, 9/19/2008)(#218C)(OP-08-00448)

PUBLIC LANDS DIVISION (OFFICE OF SECRETARY OF STATE)

Under 29-15-7, where the shoreline is undeveloped, the Public Trust Tidelands boundary is the current mean high water line. Where the shoreline is developed or there have been encroachments, the determinable mean high water line nearest the effective date of the Coastal Wetlands Protection Act is used as the starting point for establishing the Public Trust Tidelands boundary. The statutory procedure set out in Section 29-15-7 by which the Secretary of State establishes the tidelands boundary is binding on all public and private entities. (Gemmill, 9/22/2008)(#102)(OP-08-00426)

SALES TAX (CITY-COUNTY)

Sales of all-terrain vehicles and motorcycles by auction companies, including sales to out of state purchasers, are subject to the point-of-sale fee for the trauma care system. (Bounds, 9/5/2008)(#256A)(OP-08-00486)

SCHOOLS

A School District may borrow 16th Section principal funds in accordance with Section 29-3-113 and place them in the District Maintenance Funds to replenish funds expended in the construction of school buildings. As provided in Sections 29-3-111 and-113, School District funds derived from timber sales may be expended for any purpose authorized by law. (Rogers, 9/23/2008)(#191)(OP-08-00494) Section 37-151-5(m) of the Mississippi Code Annotated (1972) specifies computing years of teaching experience through an educational setting outside of a public or private school for speech-language pathologists and audiologists, exclusively. (Dedeaux, 9/26/2008)(#206)(OP-08-00527) Pursuant to Section 37-15-31(1) of the Mississippi Code of 1972, the decision made by the transferor board and the transfer board to allow the transfer of a student from one school district to another school district is final. "Final" means unappealable. However, the consent to the transfer can be revoked by the school board of either school district. A school board cannot enter into a transfer contract that would deprive a subsequent board of its rights and powers. (Boleware, 9/10/2008)(#209)(OP-08-00449) If the remaining members of a county board of education fill a vacancy on the board by making an interim appointment, the appointee will serve the remainder of the term without the necessity of conducting a special election since the next county general election will not be conducted until November, 2010 which is the election at which a member will be elected for a new term. If the remaining members cannot agree on an interim appointment, a special election to fill the vacancy must be held on the special Election Day in November, 2009. (Munn, 9/22/2008)(#210)(OP-08-00522)

SHERIFFS-MISCELLANEOUS

The language in Section 47-1-59(2) is provides that the cost of guarding a hospitalized prisoner is to come out of the county's general fund and not the sheriff's budget. (CARRITHERS, 9/12/2008)(#216)(OP-08-00471)

SUPERVISORS

Neshoba County Board of Supervisors is authorized, pursuant to Miss. Code Ann. Section 19-3-40, to 1) allow county employees who are required to have commercial drivers' licenses to use county vehicles to take the driver's exam, and 2) use public funds to pay for these employees' required physicals in connection with obtaining and maintaining commercial drivers' licenses so long as the board's actions are approved in the official minutes. (White, 9/19/2008)(#220)(OP-08-00454) Section 65-7-121, as exclusive method for abandonment of public roads, does not provide for county to be compensated for abandoning a road, nor does it permit county to "refund" that money in event road is re-opened in the future. While we are aware of no legal prohibition against county accepting landowner's compensation in settlement of current dispute as to legal status of road as public or private, county would be prohibited from agreeing, as part of that settlement, to refund the landowner in the future should the county choose to "re-open" the road as a public road, since such would amount to an unlawful pledge of the state's credit and an unlawful donation. (Cox, 9/26/2008)(#231)(OP-08-00513)

TAXES-ASSESSMENTS

An estimate of future income is a legitimate factor that must be considered in applying the income approach in assessment evaluation. (Seard, 9/5/2008)(#235)(OP-08-00474)