Mississippi Advisory Opinions June 30, 1986: 19860630 (June 30, 1986)

Advisory Opinion Text

Mayor L. D. Boone

Post Office Box 310

Grenada, Mississippi 38901

Dear Mayor Boone:

Attorney General Pittman has received your letter of request for an opinion and has assigned it to me for research and reply. Your request states:

“Thank you for your detailed response to our inquiry regarding City / County jail ownerships. It is clear that we may jointly construct and operate a multi-government prison unit and that it may be built by a private organization.

Regarding the operation of a jail system thru contract with a private organization; you state there is no authority available to allow this. The question then arises could the City only using the Home Rule provision contract the operation of a jail by a private organization?”

Pursuant to Miss. Code Ann. § 47-1-39 (1972), the governing authorities of a municipality have the power and authority “to construct and maintain a municipal prison, and to regulate the keeping of the same and the prisoners therein.” Authority is additionally provided by Miss. Code Ann. § 21-19-5 (1972) which gives the governing authorities of a municipality “power and authority to erect, establish and regulate hospitals, workhouses, and houses of correction...”

Miss. Code Ann. § 21-17-5 (1972), as amended, provides for municipal home rule and gives broad authority to municipal governing authorities as follows:

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, and shall have the power to adopt any orders, resolutions or ordinances with respect to such municipal affairs, property and finances for which no provision has been made by general law and 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.

This section shall not authorize the governing authorities of a municipality 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, or (g) grant any donation; unless such actions are specifically authorized by another statute or law of the State of Mississippi.

Although the city may contract for the operation and maintenance of a municipal jail by a private organization under “home rule”, such would necessarily depend in view of the above statutes on the particular contract being considered. Close supervision over said jail should be maintained by the municipal authorities to avoid potential areas of liability which may arise out of private operation, in addition to the liability which might attach to the city and its officials generally as a result of jail operation by the municipality.

We recommend that you work closely with your city attorney on this program should you decide to implement it.

Sincerely,

Edwin Lloyd Pittman Attorney General