Mississippi Advisory Opinions February 17, 1984: 19840217 (February 17, 1984)

Advisory Opinion Text

Honorable Harold T. Belton

Mayor

Town of Lake Center

Route 1

Box 330

Potts Camp, Mississippi 38659

RE: Municipal Officers

Dear Mayor Belton:

Attorney General Edwin Lloyd Pittman has received your letter and assigned it to me for research and reply.

In your letter you pose five questions which are set out below with responses:

Question 1 . Our board consist of Mayor and five Aldermen. One of the Aldermen serves as Vice Mayor. When Mayor, Vice Mayor and one Alderman is not at meeting is it legal for the three Aldermen present to hold an official meeting, pass ordinances, call elections, etc.?

Response : It is understood that Lake Center has a code charter form of municipal government which is regulated by the provisions of Chapter 3 of Title 21 of the Mississippi Code of 1972 Annotated (the “Code”.)

For this statutory type of municipal government a regularly convened meeting of the governing authorities to transact official business consists of the mayor and at least three aldermen or the mayor pro tempore and three aldermen.

Question 2 : Since I am not an attorney and we had none in our Town I was approved by our board to attend school conducted by Mr. Bob Church, at the University of Mississippi to prepare myself to hear misdemeanor charges in our town. I was approved by Mr. Church and the State to preform this duty.

After our Marshall arrested a relative of a board member and gave the arrested person a date to appear in court the arrested person failed to do so. Marshall told me he could not locate the person, even tho I would see him quiet often. His Mother pleaded with me to forget it, while she was the one who asked the Marshall to make the arrest. I asked the Marshall to resign but he refused. I asked the board to dismiss him but they would not at my request. (Later Marshall did resign.) After this misunderstanding about Marshall and Judge one of the Aldermen asked Judge Ernest Cunningham, Justice Judge, District 1 to hear our cases. I know him well and like him very much. However, he and I both are not sure if he can hear cases organizating in our town.

Response : Under the provision of Section 21-23-5 of the Code a municipality having a population of less than 10, 000 the governing authorities may at their discretion appoint a Justice Court Judge of the municipality's county to be the Municipal Judge.

Question 3 : Our Auditors advised us we should have paid receipts for everything we buy for the town. This we have done until recently. Our Town Clerk and myself have been signing all checks. Recently we had a problem with our squad car. One of the Aldermen and his relative agree to repair and gave us a bill on a piece of scratch paper. There was no receipt from the parts house, which is exactly what our auditor asked us to get.

I have refused to sign check to cover work or parts without parts receipts. Am I right or wrong?

Since I would not sign check 3 members of the board tried to pass a resolution allowing a private citizen, who hold no town office, authority to sign them. Since the Clerk and I are the only ones in our town under bond what should we do.

Response Section 31-7-13 of the Code is a statute generally governing public purchases. It provides in part that there are exceptions as to bid requirements, one such exception being repairs to equipment—including motor vehicles; and that invoices identifying the equipment, repairs made, parts, hours of labor and costs of labor are required.

The payment of repair costs is accomplished by presentation of a claim to the municipal governing authorities who must vote to approve payment if the claim is to be paid. The governing authorities' action on the matter must be duly recorded in the municipal minutes.

Claims are paid by the issuance of warrants. Under the provisions of Section 21-39-13 such warrants are to be signed for Lake Center by the mayor or a majority of the members of the Board of Aldermen and attested by the Municipal Clerk. A copy of that section is enclosed for reference.

Copies of Sections 21-39-15 and 21-39-17 of the Code are enclosed. These state penalties for payment of an unauthorized claim and for wrongfully signing a warrant.

Question 4 : When we first incorporated we had nothing. No money, furniture, equipment of any kind. I let them use a new portable electric typewriter for 29 months. Recently I picked the typewriter up and gave the town a bill for $5.00 per month for 29 months, which is the time they used it. I have nothing in writing as to an agreement but it seems to me no one would expect to use a piece of equipment for this length of time without paying the owner something. Is there anyway I could collect something for use of the machine? I doubt the rental asked would cover cleaning and adjusting.

Response : Section 25-4-105 (2) (a) of the Code provides in part that no public servant (includes municipal officers) shall be a contractor with the governmental entity of which he is a member. Section 25-4-105 (d) provides an exception to this where goods or services are reasonably available from two (2) or fewer commercial services.

This Code section is a codification of part of Chapter 469 of the General Laws of 1983.

Although Chapter 469 was enacted by the legislature and signed by the governor, Section 109 of the Mississippi Constitution remains in effect and provides:

“No public officer or member of the legislature shall be interested, directly or indirectly, in any contract with the state, or any district, county, city or town thereof, authorized by any law passed or order made by any board of which he may be or may have been a member, during the term for which he shall have been chosen, or within one year after the expiration of such term.”

It should be noted that Chapter 469 raises grave constitutional questions in view of Section 109 of the Constitution.

Question 5 : Normally at the end of a business meeting I announce meeting is ready for adjournment. One Alderman usually makes motion for adjournment and it is seconded then meeting ends. Do I as executive officer have authority to announce meeting is adjourned at any time I feel meeting is out of order and accomplishing nothing?

Response : A regular, official meeting of the municipal governmental authorities would be terminated by the motion of an alderman which is recorded and carried by a majority vote.

With kind regards, I am

Very truly yours,

Edwin Lloyd Pittman Attorney General.