Mississippi Advisory Opinions March 29, 1989: 19890329 (March 29, 1989)

Advisory Opinion Text

J. Gordon Flowers, Esq.

Gholson, Hicks & Nichols

Post Office Box 1111

Court Square Towers

Columbus, Mississippi 39703

Sir:

Attorney General Mike Moore has received your request for an official opinion of this office, and he has assigned it to the undersigned for research and reply.

In your letter, a copy of which is attached, you present two questions, viz:

1) Would the entry of the proposed construction contract by the city and its utilities commission between April 1, 1989 and July 3, 1989 violate Miss.Code Ann. § 21–35–27 since that statute states in part “the provisions of this section shall not apply to a contract ... entered into pursuant to § 31–7–13”?

RESPONSE: Miss.Code Ann. § 21–35–27 (Supp.1988) states in part as follows: “The provisions of this section shall not apply to a contract, lease or lease purchase contract entered into pursuant to § 31–7–13”. The word “contract”, for purposes of § 21–35–27, will include construction contracts under § 31–7–13. It is the opinion of this office that the provisions of § 21–35–27 do not apply to construction contracts made and entered into under § 31–7–13.

2) Would the proposed contract between the city and the utilities commission and contractor violate Miss.Code Ann. § 21–35–27 since the utilities commission would fund the project?

RESPONSE: § 21–35–27 applies to budgets made by the governing authority for its municipality. If the utility commission budget comprises no part of the municipality's budget, § 21–35–27 will have no application to expenditures on obligations made against the utility commission's budget.

We trust this opinion will be of assistance to you.

Sincerely,

Mike Moore, Attorney General.

ATTACHMENT

March 1, 1989

Mr. John R. Henry

Office of Attorney General

Carroll Gartin Justice Building

P.O. Box 220

Jackson, Mississippi 39205

Re: Attorney General's Opinion–Gardner Blvd. Sewer Project–Columbus, Mississippi

Dear Mr. Henry:

As I reported to you in my telephone conversation, our firm represents the City of Columbus, Mississippi (“the City”) and the Utilities Commission of the City of Columbus, Mississippi (“the Utilities Commission”). The City is governed by the Mayor and members of the City Council. Pursuant to statutory authority, the City enacted appropriate ordinances to form the Utilities Commission to govern the affairs of the utilities of the City. Since its formation, the Utilities Commission has had that obligation. Members of the Utilities Commission are appointed by members of the City Council of the City. The budget of the Utilities Commission for operation of the Light and Water Department of the City is not a part of the City's budget.

The Utilities Commission currently has a proposed sewer expansion project for Gardner Boulevard and related areas in Columbus, Mississippi. The project would be funded through Utility Commission funds. The project would be bid pursuant to Miss.Code Ann. § 31–7–13(g)

The Mayor and members of the City Council are currently in the last year of their term of office with municipal elections this spring. Based on the above, I propose the following questions:

1. Would the entry of the proposed construction contract by the City and its Utilities Commission between April 1, 1989 and July 3, 1989 violate Miss.Code Ann. § 21–35–27 since that statute states in part “the provisions of this section shall not apply to a contract ... entered into pursuant to § 31–7–13 ”?

2. Would the proposed contract between the City and the Utilities Commission and contractor violate Miss.Code Ann. § 21–35–27 since the Utilities Commission would fund the project?

Please let me know if you have any additional questions.

Sincerely, Gholson, Hicks & Nichols.