Mississippi Advisory Opinions February 11, 2010: No. 2011-00031 (February 11, 2010)

No. 2011-00031.

Dear Mr. Ramsay:

Attorney General Jim Hood received your request and assigned it to me for research and response.

Can the City of Gautier pay firemen a lump sum payment in December for attaining certain professional certifications earlier in the year?

Yes. The City of Gautier may pay firemen a lump sum payment in December for attaining certain professional certifications earlier in the year.

The City of Gautier has a contract with a union representing non-management members of the fire department. The contract provides for increased pay for firemen who attain certain certifications (EMT, etc.). The contract stipulates that the increased pay will be paid in a lump sum on the first of December each year.

For purposes of this opinion, we assume that the contract between the municipality and the union is valid and contains no provisions which are contrary to Mississippi law.

Pursuant to Section 21-17-5(1) of the Mississippi Code, municipalities are granted "home rule"authority:

(1) The governing authorities of every municipality of this state shall have the care, management and control of the municipal affairs and its property and finances. In addition to those powers granted by specific provisions of general law, the governing authorities of municipalities shall have the power to adopt any orders, resolutions or ordinances with respect to such municipal affairs, property and finances which are not inconsistent with the Mississippi Constitution of 1890, the Mississippi Code of 1972, or any other statute or law of the State of Mississippi, and 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 governing authorities of municipalities 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.

Section 21-17-5(2) imposes limits on "home rule" authority and provides:

(2) Unless such actions are specifically authorized by another statute or law of the State of Mississippi, this section shall not authorize the governing authorities of municipalities to (a) levy taxes of any kind or increase the levy of any authorized tax, (b) issue bonds of any kind, (c) change the requirements, practices or procedures for municipal elections or establish any new elective office, (d) change the procedure for annexation of additional territory into the municipal boundaries, (e) change the structure or form of the municipal government, (f) permit the sale, manufacture, distribution, possession or transportation of alcoholic beverages, (g) grant any donation, or (h) without prior legislative approval, regulate, directly or indirectly, the amount of rent charged for leasing private residential property in which the municipality does not have a property interest.

The Fifth Circuit Court of Appeals interpreted Mississippi's municipal "home rule" statute in JandB Entertainment, Inc. v. City of Jackson 152 F.3d 362 at 379 (5th Cir. 1998) stating:

The Mississippi Supreme Court has explained on several occasions that an ordinance is "inconsistent" with a state statute only if the two are in direct conflict, as determined by reference to the facts of the case at hand. [citations omitted]. Ordinances that supplement or address a different subject matter than a state statute are not inconsistent with the statute unless the state has explicitly provided that localities cannot further regulate a given area. [citation omitted]. Silence on the part of the state does not give rise to an inference that the state has prohibited localities from enacting ordinances further regulating an area.

Pursuant to the authorities cited above, the City of Gautier has broad authority to determine the manner in which it will pay its employees, subject to contractual or constitutional limitations. In the instance that you describe, the City of Gautier has a pre-existing contractual obligation to make additional payments to firemen after the firemen attain certain professional certifications. Since the contractual obligation is in existence prior to the time that the employees achieve the specified certifications, the arrangement results in a lawful incentive, as opposed to an extra payment or bonus which is prohibited under Section 96 of the Mississippi Constitution. See MS AG Ops. Weathers (Dec. 10, 2010) and Campbell (Apr. 12, 2010).

It is the opinion of this office that the City of Gautier may pay firemen a lump sum payment in December for attaining certain professional certifications earlier in the year.

Very truly yours,

JIM HOOD, ATTORNEY GENERAL

By:

Chuck Rubisoff

Special Assistant Attorney General