Mississippi Advisory Opinions April 11, 2008: No. 2008-00169 (April 11, 2008)

Mississippi Attorney General Opinions

2008.

No. 2008-00169.

DOCK:2008-00169

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Dear Mr. Brown:

Attorney General Hood has received your request for an official opinion and it has been assigned to us for research and reply.

Questions Presented

May a county make a donation or expend funds towards the construction of a monument commemorating veterans in the Civil Rights Movement?

Response

While donations are generally prohibited under state law, a county board of supervisors may itself make expenditures towards the construction of civil rights monuments, if certain factual determinations are first made by the board.

Background

Your letter provides the following background:

The Board of Supervisors has received a petition signed by approximately 300 citizens which contains the following language:

"We, the undersigned, believe that the Civil Rights Movement was a pivotal event in the history of the United States and Oktibbeha County. Considering the sacrifices made by all the black and white people who battled for equal rights and justice for all, we the citizens of Oktibbeha County, respectfully request that the board of supervisors erect a suitable monument of remembrance, on the grounds of the Oktibbeha County Circuit Court Building, to commemorate these heroic veterans of the Civil Rights Movement."

The Board is aware that Mississippi Code Section 19-5-93 does not permit donations except for the specifically designated patriotic and charitable uses, and that Section 19-3-40 (home rule) permits counties to adopt orders not preempted by state, federal or constitutional law but that (2) (f) of that section forbids donations. The Board is aware of a prior opinion that proscribed donations of office or parking space to private charities, AG Docket 92-0168, as well as others not cited here.

The Board believes the request is worthy but does not want to go afoul of the law.

Applicable law and analysis

Based on the language of the citizens' request for the construction of the monument, it appears the citizens are not actually requesting a donation of public funds to a group or organization, but are instead are requesting that the Board of Supervisors expend public funds to construct the requested monument.

As pointed out in your letter, Section 19-5-93 lists several types of monuments and memorials for which counties are authorized to make donations and expenditures:

The board of supervisors of each county is hereby authorized, in its discretion, to donate money for the objects and purposes following, to wit:

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(k) Patriotic organizations and memorials. A sum not to exceed Five Thousand Dollars ($5,000.00) to build or aid any post of the American Legion, any chapter of the Daughters of the American Revolution, any chapter of the United Daughters of the Confederacy, or any post, unit or chapter of any patriotic organization within the county in building a memorial to the veterans of World War I and World War II; and a sum not to exceed One Thousand Dollars ($1,000.00) to aid in defraying the cost of the erection of suitable memorials to deceased soldiers, sailors and marines of the late world wars. Such appropriation may be made, even though no provision has been made therefor in the county budget.

In MS AG Op., Bowman (June 12, 1998), this office opined on a similar situation in a municipality where a specific statute (Miss. Code Ann. Section 21-19-55 (1972)) provides specific authority to a municipality to make donations to patriotic organizations towards the building of war memorials. There, we stated a municipality could make up the difference in the amount of money donated for the war memorial and the actual cost for the erection of the memorial.

Miss. Code Ann. Section 19-3-40 (1972) reads in pertinent part as follows:

(1) The board of supervisors of any county shall have the power to adopt any orders, resolutions or ordinances with respect to county affairs, property and finances, for which no specific provision has been made by general law and which are not inconsistent with the Mississippi Constitution, the Mississippi Code of 1972, or any other statute or law of the State of Mississippi; and any such board shall likewise have the power to alter, modify and repeal such orders, resolutions or ordinances. Except as otherwise provided in subsection (2) of this section, the powers granted to boards of supervisors in this section are complete without the existence of or reference to any specific authority granted in any other statute or law of the State of Mississippi...

(2) This section shall not authorize the board of supervisors of a county to (a) levy taxes other than those authorized by statute or increase the levy of any authorized tax beyond statutorily established limits, (b) issue bonds of any kind, (c) change the requirements, practices or procedures for county elections or establish any new elective office, (d) use any public funds, equipment, supplies or materials for any private purpose, (e) regulate common carrier railroads, (f) grant any donation, or (g) without prior legislative approval, regulate, directly or indirectly, the amount of rent charged for leasing private residential property in which the county does not have a property interest; unless such actions are specifically authorized by another statute or law of the State of Mississippi.

This office has opined that, pursuant to home rule (Section 19-3-40), counties may adopt orders and resolutions so long as they are not in direct conflict with other statutory provisions or the constitution. See MS AG Op., Nowak (January 11, 2008).

Conclusion

While it is the opinion of this office that Mississippi law would prohibit a donation to a group as described in your letter, an expenditure by the county towards the construction of the monument is authorized under Section 19-3-40, so long as the monument is constructed on county property. However, the Board of Supervisors must first make a factual finding, recorded in its minutes, that such expenditure is for a public purpose.

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

Sincerely yours,

JIM HOOD, ATTORNEY GENERAL

By: Reese Partridge

Assistant Attorney General