Mississippi Advisory Opinions April 06, 2007: No. 2007-00158 (April 06, 2007)

No. 2007-00158.

Dear Mr. White:

Attorney General Jim Hood has received your request for an official opinion and has assigned it to me for research and response. Your letter reads as follows:

This request for an official opinion concerns issues surrounding the ownership of the Neshoba County General Hospital and Nursing Home, a facility owned by Neshoba County and operated by the Neshoba County General Hospital and Nursing Home Board of Trustees. Neshoba County operates this hospital and nursing home pursuant to Chapter 14 of Title 41 of the Mississippi Code Annotated. However, in November of 1984 a petition was filed by citizens of Neshoba County desiring the Board of Supervisors to submit a proposition to the County electorate regarding the sale and/or lease of the Neshoba County general Hospital and Nursing Home. The petition read as follows:

Should ownership of Neshoba County General Hospital and Neshoba County Nursing Home remain in Neshoba County, and continue to be operated as a community hospital and nursing home, and not be sold or leased without first submitting the issue to the people by election.

The petition was rejected by the Board of Supervisors and the citizens behind the petition appealed. The matter found its way to the Mississippi Supreme Court in May of 1988 in the form of Dr. J. H. Leigh, et. al vs. Board of Supervisors of Neshoba County, Mississippi, 525 So. 2d 1326 (Miss. 1988), a copy of which is attached hereto for your convenience. A new Board of Supervisors had taken office by the time the Mississippi Supreme Court ruled on the matter and on June 2, 1988, the new Board of Supervisors enacted an Order Expressing Intention of Neshoba County, Mississippi to Comply with Case Number 57, 735 of the Supreme Court of Mississippi. A copy of said Order is also enclosed for your viewing and convenience. Said Order stated that the Neshoba County Board of Supervisors would follow the mandates of the above referenced Leigh vs. Board of Supervisors of Neshoba County. The Order, much like the discussion of the Mississippi Supreme Court in Leigh, apparently places a voter approval restriction on the Board of Supervisors as to its ability to sell the hospital and nursing home.

Presently, the Board of Supervisors of Neshoba County and the Board of Trustees of the Neshoba County General Hospital and Nursing Home are pursuing making expansive improvements to the hospital and nursing home facility. However, the cost requested by the medical professionals at the hospital and nursing home to make the facility modern exceeds the bonding limits of Neshoba County. Further, interest has been expressed to pursue selling or leasing the hospital and nursing home. Therefore, the question arises, in light of the restriction placed on the Board by Leigh, and the 1988 Order, may the Board of Supervisors lease the hospital?

Upon further investigation into this matter, I find that an election regarding the sale would likely create a dilemma I hope you may be able to address. Should the Board hold an election before the County electorate concerning whether ownership of the hospital shall remain in Neshoba County or a private entity, a majority vote would determine if the Board could sell the hospital. Assuming the election favored ownership remaining in the County and the County therefore continuing to operate the hospital, the county would then need to raise the necessary mondey, likely by way of general obligation bonds, to make the necessary improvements. However,, a protest to the letting such bonds would require a second vote, which would require obtaining a three-fifths approval of voters to authorize the letting of said bonds for hospital improvement. Therefore, a possible and likely result is the County not having the ability to sell the hospital and nursing home, nor being able to let bonds to make improvements thereto.

Under this unique situation, what authority doe the Board of Supervisors have to prevent this dilemma?

In essence, the Mississippi Supreme Court in the Leigh opinion upheld the validity of the following proposition that was submitted to the Board of Supervisors in accordance with the referendum process contained in Miss. Code Ann. Section 19-3-55 (1972):

Should ownership of Neshoba County General Hospital and Neshoba County Nursing Home remain in Neshoba County, and continue to be operated as a community hospital and nursing home, and not be sold or leased without first submitting the issue to the people by election.

After the filing of the petition in November of 1984, the Legislature has made several amendments to the community hospital statutes. In particular, Miss. Code Ann. Section 41-13-15 (1972) was first amended in 1985 to provide for a referendum where a petition containing 1500 or twenty per cent (20%) of the qualified voters of the county are presented to the county board of supervisors asking for an election be held on the question of a lease of a community hospital. Subsequent amendments provided for similar referenda procedures for the sale, lease with the option to sell, and lease without the option to sell the community hospital.

Under the provisions of Section 19-3-55, twenty-five percent of the county's voters must sign the petition requiring the proposition to be either placed on the ballot or, at the option of the supervisors, having the proposition put in force and effect by passing an order.

Under Section 43-13-15, the threshold of petition signatures needed to require an election before the sale or lease a community hospital is, as noted above, only 20% or 1500 of the qualified voters of the county, whichever is less.

It is our opinion that absent an order from the Supreme Court modifying its Leigh opinion, or legislative action providing similar relief, Neshoba County must hold a referendum on the question of leasing the community hospital, before leasing same.

With regard to your second question, we find no provision of current state law which would remove or modify the 3/5ths voter approval requirement for the sale of general obligation bonds following the filing of a "protest petition."

Please let me know if you would like to discuss this matter or if I can be of further assistance.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By: Reese Partridge Assistant Attorney General