Mississippi Advisory Opinions August 30, 1989: 19890830 (August 30, 1989)

Advisory Opinion Text

July 31, 1986

February 4, 1986

November 16, 1984

March 4, 1985

December 28, 1984

January 3, 1986

October 29, 1984

JUNE 4, 1986

Honorable Lydia Quarles

P.O. Box 867

Starkville, Mississippi 39759

Ms. Debra Nunley

City Clerk

Post Office Box 71

Tishomingo, Mississippi 38873

Honorable Paul B. Henderson

Young, Scanlon & Sessums, P.A.

150 Court Square East

202 E. Government Street

Brandon, Mississippi 39042

Honorable Stanford Young

Attorney for City of Waynesboro

Post Office Box 372

Waynesboro, Mississippi 39367

Honorable Ray Mabus

State Auditor

Room 304 Sillers Building

Jackson, Mississippi 39205

Honorable Ed Pittman

Attorney General

Carroll Gartin Justice Building

Jackson, Mississippi

Honorable James K. Wetzel

Attorney for City of Gulfport

Post Office Drawer 1

Gulfport, Mississippi 39502

TO: Mississippi Municipalities

Mississippi Attorney General Office

P.O. BOX 220

JACKSON, MISS. 39205

Re: Coffee Purchases

Re: Municipal Funds

Dear Ms. Quarles:

Attorney General Mike Moore has received your letter requesting an opinion and has assigned it to me for research and reply. Your letter states the following matter for consideration:

“I currently serve as the City Attorney for the City of Starkville. I request an opinion as to whether it would be a violation of state law for the City of Starkville to purchase and provide for its employees and guests.”

Attached and incorporated herein, please find the prior opinion of this office to Ms. Debra Nunley dated July 31, 1986. Via references to earlier opinions on the issues, the Nunley opinion concludes that, as a general rule, municipalities may not expend public monies to purchase or provide coffee for city employees. However, the various opinions referenced by Nunley outlined in number of occasions where the purchase of coffee may be an appropriate expenditure.

With warm personal regards, I am

Sincerely,

Mike Moore, Attorney General.

ATTACHMENT

Dear Ms. Nunley:

Attorney General Pittman has received your letter of request for an opinion and has assigned it to me for research and reply. Your request presents three questions which are set forth and answered sequentially.

1. Town purchasing coffee and coffee supplies for town employees, mayor and board of aldermen?

This question is answered in the attached opinion to Paul B. Henderson, dated February 4, 1986, which states that we know of no authority for municipalities to purchase coffee and coffee supplies for municipal employees and which states this office's opinion on expenditure of municipal funds for coffee and coffee supplies.

2. Advertising: We have in the past purchased an ad in the Northeast Mississippi Junior College Athletic Program, can we still do this?

The mayor and board of aldermen of a municipality are authorized to expend money for the purpose of advertising pursuant to Miss.Code Ann. § 17–3–1 (1972) which states:

The board of supervisors of any county in Mississippi, and the mayor and board of aldermen or board of commissioners of any municipality in the State of Mississippi, may in their discretion, set aside, appropriate and expend moneys, not to exceed one mill of their respective valuation and assessment for the purpose of advertising and bringing into favorable notice the opportunities, possibilities and resources of such municipality or county.

The type of advertising contemplated by § 17–3–1 is set forth in Miss.Code Ann. § 17–3–3 (1972) as follows:

Advertising pursuant to section 17–3–1 shall include newspaper and magazine advertising and literature, publicity, expositions, public entertainment or other form of advertising or publicity, which in the judgment of such board or boards will be helpful toward advancing the moral, financial and other interests of such municipality or county.

Attached to the Henderson opinion, supra, is a memorandum issued by the State Auditor construing § 17–3–1 and § 17–3–3 .

If the Town of Tishomingo makes a factual finding that purchasing an ad in the Northeast Mississippi Junior College Athletic Program would advertise and bring into favorable notice the opportunities, possibilities, and resources of the town and would be helpful “toward advancing the moral, financial and other interests of” the town, then such an ad may be purchased.

3. Bank Overdrafts: In our small town usually around the 15th of the month we have to make transfers from some of the accounts till the first of the month. Can our bank legally charge the town an overdraft?

Responsive to your question is Miss.Code Ann. § 21–39–13 (1972), as amended, which states:

No warrant shall be signed, removed from the warrant book or delivered by the clerk until there is sufficient money in the fund upon which it is drawn to pay the same and all prior unpaid warrants drawn upon that fund, whether delivered or not.

If this office can be of further assistance to you, please let us know.

Sincerely,

Edwin Lloyd Pittman Attorney General

ATTACHMENT

Dear Mr. Henderson:

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:

“Our firm represents the City of Richland, Mississippi. I have been requested by the Mayor and Board of Aldermen of the City of Richland to request an opinion concerning the following:

Does the City have the authority to purchase coffee and supplies for employees out of municipal funds since the enactment of Home Rule?

In the event that your office determines that it is permissible to purchase coffee and supplies under some circumstances but not under others, I would appreciate your outlining under what circumstances and for what purposes such purchases would be authorized and the necessary findings to be made by the governing authority.”

In the attached opinion to Honorable Stanford Young, dated November 16, 1984, this office stated that there is no statutory authority for the expenditure of municipal funds for the purpose of providing coffee for employees of the municipality. That position was also stated in an opinion to Honorable Ray Mabus dated March 4, 1985. The attached opinion to Honorable James K. Wetzel, dated January 3, 1986, concerns the legality of such expenditure subsequent to the enactment of “Home Rule”.

As stated in the Wetzel opinion, Home Rule, Miss.Code Ann., § 21–17–5, specifically does not authorize the governing authorities of a municipality to “grant any donation.” The Supreme Court in Craig v. Mercy Hospital–Street Memorial , 45 So.2d 809, 815, 209 M 427, (1950) sugg. of error overruled, 47 So.2d 867, 209 M 490 defined donation as “a transfer of property from the owner to another without any consideration in return.” In the case of Golding v. Salter , 107 So.2d 348, 234 M 567 (1958) the Court held that the giving of Christmas bonuses to employees was an invalid donation and held that the payments were gifts despite testimony of defendants that the amounts were intended as a reward for faithful service. Further, Section 96 of the Mississippi Constitution states:

The legislature shall never grant extra compensation, fee, or allowance, to any public officer, agent, servant, or contractor, after service rendered or contract made, nor authorize payment, or part payment, of any claim under any contract not authorized by law; but appropriations may be made for expenditures in repelling invasion, preventing or suppressing insurrections.

In response to the second part of your request concerning when it is permissible to purchase coffee, please see the following attached opinions of this office:

1) Opinion to Benjamin E. Griffith dated November 25, 1985, concerning purchase of coffee for prisoners;

2) Opinion to James M. Hall dated January 27, 1984, concerning purchase of coffee by the board of supervisors;

3) Opinion to Judge B.B. Wilkes dated April 13, 1984 concerning purchase of coffee for jurors.

If this office can be of any further assistance, please do not hesitate to call.

Sincerely,

Edwin Lloyd Pittman Attorney General

ATTACHMENT

Dear Mr. Young:

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

Your letter states:

“At the request of the Mayor and Board of Alderman of the City of Waynesboro, I have been asked to request an opinion from the Attorney General's office on the following question:

“ ‘Is it permissible for a municipality to purchase coffee for the benefit of the city employees, where all expenses and expenditures are carefully and fully documented.’ ”

The Mississippi Supreme Court has repeatedly held that a municipality is a creature of the Legislature and has only such powers and authority as may be granted to it by express or implied provisions of law. Delta Electric Power Association v. Mississippi Power & Light Company , 149 So.2d 504, 250 Miss. 482 (1963); City of Jackson v. Freeman–Howie, Inc ., 121 So.2d 120, 239 Miss. 84 (1960); Logan v. City of Clarksdale, 128 So.2d 537, 240 Miss. 716 (1961); Day v. Klein , 82 So.2d 831, 225 Miss. 191 (1955); Davenport v. Blackmur , 186 So. 321, 184 Miss. 836 (1939); Bishop v. City of Meridian, 79 So.2d 221, 223 Miss. 703 (1955); Mayor & Board of Aldermen of City of Natchez v. Engle , 51 So.2d 564 (1951); Hattiesburg Firefighters Local 184 v. City of Hattiesburg , 263 So.2d 767 (1972); and City of Jackson v. Luckett , 336 So.2d 776 (1976) .

In response to your inquiry we find no statute which either expressly or impliedly authorizes the expenditure of municipal funds for the purpose of providing coffee for employees of the municipality.

However, this is not to say that there is no lawful authority for a municipality to purchase coffee for certain purposes.

For example and as a matter of information we point out that there is specific statutory authorization for the expenditure of public funds for the purpose of advertising and bringing into favorable notice the opportunities, possibilities and resources of a municipality. Mississippi Code Annotated § 17–3–1 (1972) .

Furthermore, Section 17–3–3 specifically includes “public entertainment” as a type of advertising that may be utilized pursuant to the authority of Section 17–3–1 . Such public entertainment could include providing coffee for those attending activities which are conducted for the purpose of advertising a municipality pursuant to the aforementioned Code sections.

Very truly yours,

Edwin Lloyd Pittman Attorney General

ATTACHMENT

Dear Mr. Mabus:

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

Your letter states:

“This is a request for a formal opinion from your office concerning the use of public funds for the purchase of coffee, coffee supplies, soft drinks and other such items.

“As you know, your office issued an opinion dated April 13, 1984, to Judge B.B. Wilkes which set out certain guidelines for the purchase of coffee. Since the issuance of that opinion, this office has announced that it will take exception to the expenditure of public funds for the purchase of coffee after October 31, 1984, except in the case as outlined in your April 13 opinion. Several state agencies and school districts have asked this office about the legality of spending public funds for coffee, coffee supplies and soft drinks when they are host to meetings, accreditation seminars, teacher training workshops and similar events that involve persons other than the employees of the agency or school district. For example, one state agency is host to a number of meetings and believes that the purchase of coffee would be reasonably related to the mission of the agency, and thus legally authorized, even though the enabling statutes of the agency do not specifically mention such an expenditure. These types of expenditures were not addressed by your April 13 opinion. While it appears to this office that such expenditures are related to the mission of these entities, we are understandably reluctant to approve such expenditures without an opinion from your office. “For a public entity to purchase coffee, coffee supplies, soft drinks or similar items, does that entity have to have specific statutory authority to make such expenditure or can it be sufficient authority if the governing body or head of the entity determines that such expenditure would be reasonably related and incidental to the organization, mission and function of the entity?”

In an opinion addressed to Honorable James M. Hall, dated January 27, 1984, we stated that we knew of no authority which would allow a county board of supervisors to expend county funds to provide coffee or any other refreshments for the benefit of county officers or employees or for the public generally.

In an opinion addressed to Honorable B.B. Wilkes, dated April 13, 1984, we expressed the opinion that Mississippi Code Annotated § 9–1–37 (1972) authorizes the expenditure of county funds for the purpose of providing coffee for jurors provided the court certifies to the appropriate board of supervisors that such purchase is necessary for the proper operation of said court.

In an opinion addressed to Honorable Stanford Young, dated November 16, 1984, we stated that we found no statute which either expressly or impliedly authorizes the expenditure of municipal funds for the purpose of providing coffee for municipal employees. In that opinion we noted that Sections 17–3–1 and 17–3–3 authorize the expenditure of public funds by counties and municipalities for purposes of advertising and bringing into favorable notice the opportunities, possibilities and resources of a municipality (or county) and that “public entertainment” is specified as a type of advertising that may be utilized and could include the purchase of coffee for those attending activities conducted for advertising purposes pursuant to the aforementioned statutes.

It remains the opinion of this office that counties and municipalities may not lawfully expend public funds for the purchase of coffee for their officers and employees on a daily basis as stated in the Hall and Young opinions.

Your request concerns the purchase of coffee, coffee supplies, and soft drinks for persons attending “meetings, accreditation seminars, teacher training workshops and similar events that involve persons other than the employees of state agencies or school districts which conduct such activities.

In response to your specific question, it is our opinion that state agencies and school districts in an effort to achieve a particular goal or perform a particular function which has been imposed upon them by legislative enactment(s) may lawfully purchase coffee, coffee supplies, and soft drinks to be consumed by the participants in a meeting, seminar, workshop, or similar event provided the proper responsible officer or governing entity makes the determination, consistent with the facts, that the activity in question is reasonably related and incidental to said goal or function.

Very truly yours,

Edwin Lloyd Pittman Attorney General

ATTACHMENT

Dear General Pittman:

This is a request for a formal opinion from your office concerning the use of public funds for the purchase of coffee, coffee supplies, soft drinks and other such items.

As you know, your office issued an opinion dated April 13, 1984, to Judge B.B. Wilkes which set out certain guidelines for the purchase of coffee. Since the issuance of that opinion, this office has announced that it will take exception to the expenditure of public funds for the purchase of coffee after October 31, 1984, except in the case as outlined in your April 13 opinion. Several state agencies and school districts have asked this office about the legality of spending public funds for coffee, coffee supplies and soft drinks when they are host to meetings, accreditation seminars, teacher training workshops and similar events that involve persons other than the employees of the agency or school district. For example, one state agency is host to a number of meetings and believes that the purchase of coffee would be reasonably related to the mission of the agency, and thus legally authorized, even though the enabling statutes of the agency do not specifically mention such an expenditure. These types of expenditures were not addressed by your April 13 opinion. While it appears to this office that such expenditures are related to the mission of these entities, we are understandably reluctant to approve such expenditures without an opinion from your office.

For a public entity to purchase coffee, coffee supplies, soft drinks or similar items, does that entity have to have specific statutory authority to make such expenditure or can it be sufficient authority if the governing body or head of the entity determines that such expenditure would be reasonably related and incident to the organization, mission and function of the entity?

I look forward to hearing from you at your earliest convenience.

Sincerely, RAY MABUS State Auditor

ATTACHMENT

Dear Mr. Wetzel:

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

Your letter states:

“As City Attorney for the City of Gulfport, I have been requested by the City Council to request an Attorney General's opinion as it pertains to Section 21–17–5 of the Mississippi Code of 1972, as amended by Chapter 487 of the 1985 Legislature, which is also known as ‘Home Rule’. My specific question deals with how this new legislation will affect expenditures which would be made by the City Council pertaining to donations to organizations where there is no specific legal authority to support a donation or contribution to a charitable institution by statute, and also for other expenditures, such as dues for civic clubs, flowers sent to an individual or group for specific occasion, and refreshments for receptions and banquets and other entertainment expenses which, if by resolution, the City Council decided to resolve to make these expenditures, and whether in light of the new Home Rule, the City Council could resolve to expend monies on these behalves where there is no specific statutory authority for said expenditures and there are no specific statutes specifically setting out that these monies cannot be spent for said purposes.

“As you may be aware, on or about October 29, 1984, the State Auditor's office sent out a memorandum (copy attached) to all Mississippi municipalities advising that those certain expenditures set out above could not be made without specific statutory authority and not to make such expenditures without statutory authority. However, as of July 1, 1985, the legislation mentioned above came into effect which states that, ‘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, it 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.’ Therefore, in light of this new legislation, the City Council of Gulfport would like an opinion as to whether or not they could, by resolution, resolve to expend monies for items set out above, and also for such things as purchase of coffee and coffee supplies for the guests transacting business at City Hall or touring the City Hall.” (Emphasis added)

Mississippi Code Annotated § 21–17–5 as amended by Chapter 487, Laws of 1985 provides:

“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.” (Emphasis added)

The above quoted statute requires that any donation of municipal funds must be specifically authorized by another statute or law of the State of Mississippi.

Clearly the outright donation of municipal funds to an organization would not be lawful unless there is specific statutory authorization for same. For examples see Sections 21–19–41 through 21–19–59.

However, we point out that Section 17–3–1 authorizes the expenditure of municipal funds not to exceed one mill of the assessed valuation of the municipality making such expenditures for the purpose of advertising and bringing into favorable notice the opportunities, possibilities and resources of said municipality. Section 17–3–3 specifically provides that advertising pursuant to Section 17–3–1 shall include, inter alia, “publicity, expositions, public entertainment or other form of advertising or publicity which in the judgment of such board ... will be helpful toward advancing the moral, financial and other interests of such municipality ...”.

Very truly yours,

Edwin Lloyd Pittman Attorney General

ATTACHMENT

FROM: Ray Mabus

SUBJECT: Audit Position on Selected Expenditures

Over the last several months, a number of questions have been raised about the legality of certain expenditures and the position of the State Auditor's office on these expenditures. Many of these expenditures, while made without statutory authority, have been allowed in the past or the law has not been enforced.

This memorandum addresses spending questions that our auditors continue to find when conducting audits. Because of the nature and history of these types of expenditures, the decision of the State Auditor's office to take an audit exception to these expenditures will be prospective only. In financial audits of governmental entities, this office will comment on such expenditures prior to October 31, 1984, but will not seek recovery unless gross abuse is discovered or officials have routinely ignored repeated warnings from auditors to cease making these expenditures. Any of the expenditures which are described in this memorandum which are made after November 1, 1984, will be the subject of an audit exception and recovery of the expenditures will be pursued.

As you know municipal governments are limited to expenditures that are authorized by specific laws. Sections 21–17–1 and 21–17–7, Miss.Code Ann. (1972), and other statutes specify the purposes for which municipalities can spend public money.

Advertising Municipal Resources:

Sections 17–3–1 and 17–3–3, Miss.Code Ann. (1972), regulate the advertising of municipal resources. The primary determination as to whether an expenditure complies with these statutes is made by a board of Aldermen (Commissioners, Selectmen, etc.). The key criteria is whether the expenditure would “bring into favorable notice the opportunities, possibilities and resources of a municipality. Any advertisement must satisfy this criteria to be allowed. This criteria requires that the “opportunities, possibilities and resources” be specific and identifiable. For example, simply proclaiming that a certain municipality is “a great place to live” would not fit the criteria; the content of the advertisement must say why the municipality is a great place to live and advertise the specific “opportunities, possibilities and resources” that explain the why. In limited instances, contributions to organizations and expenditures for banquets or receptions may qualify as advertising resources if such expenditures would “bring into favorable notice the opportunities, possibilities and resources” of a municipality. Total expenditures for these items shall not exceed the tax revenue generated by one mill.

Purchase of Coffee and Coffee Supplies:

According to an April 13, 1984 Attorney General's opinion, Section 9–1–37, Miss.Code Ann. (1972), authorizes the expenditure of county funds for the purchase of coffee and supplies for jurors, provided that the court certifies to the board of supervisors that the purchase of coffee for jurors is necessary for the proper operation of the court. Except for this expenditure, the State Auditor's office knows of no authority for the purchase of coffee and coffee supplies with public funds.

Donations to Organizations:

Contributions and donations of public funds are authorized and regulated by specific statutes [e.g., Section 19–5–93, Miss.Code Ann. (1972) ]. If there is no specific legal authority to support a donation or contribution to a charitable or other organization, it cannot be allowed.

Personal Use of Official Automobiles:

Officials and employees of governmental entities who have access to automobiles and other motor vehicles owned by a governmental entity are not allowed to use these automobiles or other motor vehicles for personal travel, including commuting from one's residence to one's office building. The only exception to this policy involves those officials and employees who are required, by the nature of their job, to report directly to a worksite, other than the official office building, or who routinely respond to business calls after normal working hours.

Exceeding Budget Line–Items:

The provisions of a municipal budget adopted by the governing authority in accordance with Section 21–35–5 & 21–35–17, Miss.Code Ann. (1972), may not be exceeded. When it shall appear to the governing authorities that revenues may fall short of estimated collections or expenditures may exceed budget estimates, it is at this time that the municipal budget should be amended pursuant to Section 21–35–25, Miss.Code Ann. (1972) . To assist the governing authorities in making financial decisions, it is important for city clerks to prepare and distribute the reports required by Section 21–35–13.

Unmarked Municipal Police Cars:

Section 25–1–87, Miss.Code Ann. (1972), requires all municipal motor vehicles to be marked. There is no exception for municipal police cars to be unmarked as is provided for sheriffs' cars by Section 19–25–15. Because a strict enforcement of this law would seriously undermine the investigative efforts of municipal police departments, this office will allow municipalities to leave a limited number of its police cars unmarked solely for undercover investigative operations pending the Legislature's consideration of this issue in January.

ATTACTMENT

Dear MR. CARTER:

I'M REQUESTING AN WRITTEN OPINION ON THE FOLLOWING ITEMS:

1. TOWN PURCHASING COFFEE AND COFFEE SUPPLIES FOR TOWN EMPLOYEES, MAYOR AND BOARD OF ALDERMAN?

2. ADVERTISING: WE HAVE IN THE PAST PURCHASED AN AD IN THE NORTHEAST MISSISSIPPI JR. COLLEGE ATHLETIC PROGRAM, CAN WE STILL DO THIS?

3. BANK OVERDRAFTS: IN OUR SMALL TOWN USUALLY AROUND THE 15th OF THE MONTH WE HAVE TO MAKE TRANSFERS FROM SOME OF THE ACCOUNTS TILL THE FIRST OF THE MONTH. CAN OUR BANK LEGALLY CHARGE THE TOWN AN OVERDRAFT?

MR. CARTER, PLEASE GET BACK TO ME AS SOON AS POSSIBLE ON THESE MATTERS.

THANK YOU, DEBRA NUNLEY CITY CLERK