TECHNICALITIES
A QUESTIONS AND ANSWERS

Technicalities is a monthly publication of Office of the State Auditor, Department of Technical Assistance. The purpose of this newsletter is to communicate information concerning inquiries to the Office of the State Auditor. The interpretations herein are those of the Department of Technical Assistance.

This is a compilation of the questions and answers found in the issues of Technicalities that are available online.

January | February | March | April | May | June | July | August | September | October | November | December


January 2008

Return to top of page


Q: May a court order a defendant to post an appearance bond to guarantee the defendant´s compliance with court ordered appearances, probation, community control, payment plans (fines, restitution, etc.), or other supervision?
A: Yes. Section 99-5-39 (S.B. 2756, 2007 regular session) allows this security and supervision. The bond must be posted by a bail bondsman and the bond may be called by the court when the clerk of the court or probation officer notifies the court that the defendant has violated the conditions of the order. If the bondsman does not produce the defendant to the court or sheriff within 72 hours, the bond is forfeited subject to usual appearance bond procedures.

Q: If an officer fails to qualify for an elected or appointed office after having been elected or appointed, what happens?
A: With some exceptions, the previous officer continues in office. Section 25-1-7.

Q: Must a governing authority solicit bids for employee health insurance?
A: No. Section 25-15-101 & 103 authorize the purchase of insurance, but does not impose a procedure for the purchase. The routine purchase law (Section 31-7-13) does not apply to insurance.

Q: May a county sheriff´s department and local municipalities join together, both funds and employees, to form a county-wide investigative division?
A: Yes, they may do so via a valid interlocal agreement adopted pursuant to Section 17-13-1, et seq. This agreement could include deputizing the municipal officers by the sheriff. (Attorney General´s Opinion to Bates dated December 14, 2007)

Q: May a county or municipality assess ad valorem taxes on a leasehold interest of a business enterprise which leases commercial space from a regional housing authority?
A: Yes, a county or municipality may assess ad valorem taxes on the leasehold interest of a business enterprise which leases commercial space from a regional housing authority. (Attorney General´s Opinion to Monroe dated December 14, 2007)


Return to top of page


Q: If a court determines a person is not legally holding an office, are the actions (votes, motions, filings, etc.) the person participated in legal regarding other persons affected by or interested in the action?
A: Yes. See Section 25-1-37, Acts of de facto officers valid.

Q: Where can someone review and obtain a copy of the Annual Exception Report issued by the State Auditor´s Office?
A: The Annual Exception Report issued in accordance with Sections 7-7-77, 79, 217 and 219 can be reviewed and copied from the State Auditor´s website by going to www.osa.ms.gov/documents.asp and then selecting “exception report” from the report type drop-down menu and the desired fiscal year from the year drop-down menu.

Q: Does an airport authority have the authority to enter into an agreement with a municipality for the purposes of making improvement to a municipal street and to maintain landscaping and to remove trash along the municipal street?
A: No. An airport authority has no authority to enter into an agreement with a municipality to construct improvements to a municipal street and to remove trash from the municipal right-of-way. An airport authority has only those powers expressly provided by statute and those powers which are necessarily implied. (Attorney General´s Opinion to Faneca dated February 8, 2008)

Q: When soliciting quotes for a commodity purchase of over $ 5,000 to $ 25,000, must other competitive bidders´ offers be kept confidential during the bid process?
A: Yes. Section 31-7-13 (b) requires "competitive" bids. This law defines "competitive" to require comparable identification of needs, and that bids be developed independently and without knowledge of other bids.

Q: Does state law provide for counties and municipalities to lease their mineral rights (oil, gas, mineral exploration and development)?
A: Yes. Section 17-9-1 grants authority under such terms and conditions as determined by the governing authorities and Chapter nine of Title 17.


March 2008

Return to top of page


Q: What is the current per mile reimbursement rate for official travel by state and local officers and employees?
A: Section 25-3-41 authorizes the federal reimbursement rate for state employees and a choice for local governments of $.20 per mile up to the federal rate per mile. The State Department of Finance and Administration has notified state agencies the federal rate was increased to $ .505 per mile effective March 19, 2008. To see this notification go to http://www.dfa.state.ms.us/Offices/PurTrav/Purchasing.htm and select "Travel Contracts & Information" under "Office of Travel".

Q: May a state entity, as a self-insured, self-maintained Workers´ Compensation insurer, after payment in full of a workers´ comp claim, reduce or waive the statutory lien it holds on amounts received by the claimant from the third party tortfeasor?
A: No. A state entity, as a self-insured workers´ compensation insurer, cannot waive or reduce the lien granted it by Section 71-3-71 on proceeds recovered by the claimant/insured from the tortfeasor. The amount of the claim is fixed and determined and therefore, not a “doubtful claim” and thus to waive or reduce it would violate Section 100 of the Mississippi Constitution. (Attorney General´s Opinion to Brown dated February 8, 2008)

Q: May governing authorities (counties, cities, etc.) agree to make partial payments when they enter contracts for public construction?
A: Yes. The terms of the payment arrangement must be set in the construction contract and in compliance with Section 31-5-25.

Q: Is the expiration date of professional license (Title 73, Miss. Code) of Miss. National Guard and U. S. Armed Forces Reserves members extended during their active duty time?
A: Yes. Section 33-1-39 provides an extension of up to 90 days after return from active duty.

Q: Is there any situation wherein a business would pay privilege tax on both number of employees per Section 27-17-9 and the inventory assessment table per Section 27-17-365?
A: No. Any person operating a “store”, as contemplated under Section 27-17-365, is only obligated to pay the privilege tax imposed by Section 27-17-365, and is not required to pay, in addition, the tax imposed in Section 27-17-9. (Attorney General´s Opinion to McKee dated March 7, 2008)


April 2008

Return to top of page


Q: May a county or city recognize Good Friday as a legal holiday?
A: Yes. Section 3-3-7(2) provides that in lieu of any one legal holiday provided for in Section 3-3-7(1), with the exception of the third Monday in January (Robert E. Lee and Martin Luther King, Jr.´s birthdays), the governing authorities of any municipality or county may declare, by order spread upon its minutes, Mardi Gras Day or any one other day during the year, to be a legal holiday.

Q: Does a new bill allow local governments to purchase real estate at less than the appraised value?
A: Yes, Senate Bill 2391 (effective March 25, 2008) amends Code Section 43-37-3 to allow governmental entities, including municipalities and counties, to pay the best negotiated price or appraised value, whichever is less, for the purchase of real property. Specifically, Code Section 43-37-3(c) now reads as follows: “The price that shall be paid for real property shall be the lesser of the best negotiated price or the approved appraisal of the fair market value or the price at which the property is offered for sale.”

Q: What fees may a District Attorney charge to issuers of worthless checks who voluntarily surrender themselves and sign a restitution agreement?
A: Section 97-19-75 provides prosecution may be deferred upon payment of a $40 service charge to the District Attorney and execution of a restitution agreement. “Restitution” shall mean the face amount of the check or money order, plus a service charge of $30 payable to the complainant.

Q: May governing authorities, such as a city, include a trade-in option in its bid specifications when purchasing equipment and consider such when awarding to the “lowest and best bidder”?
A: Yes. However, a governing authority, such as a city, must receive fair market value when disposing of surplus property to avoid making an unlawful donation. (Attorney General´s Opinion to Dye dated April 4, 2008)

Q: Does a motion pass when there were two affirmative votes, one recusal, one “no vote” and one abstention?
A: Yes. The motion in question passed. (Attorney General´s Opinion to Kramer dated April 11, 2008)

Q: May an abstaining public board member change his vote after the motion was voted upon and the results announced by the presiding officer?
A: No. (Attorney General´s Opinion to Kramer dated April 11, 2008)


May 2008

Return to top of page


Q: May the news media with video cameras maintain a presence in the polling places during an election?
A: The news media has no statutory right to maintain a presence in polling places. However, a brief video recording of a polling place which would not be disruptive of an election should be allowed. (Attorney General´s Opinion to Sanford dated April 4, 2008)

Q: Do you issue a garnishment if the amount due is less than one hundred dollars ($100.00)?
A: Section 11-35-23(3)(a) provides that except for judgments, liens, attachments fees or charges owned to the state or its political subdivisions, wages, salary or other compensation in the hands of the garnishee belonging to the defendant are not subject to the writ of garnishment if the writ is issued on a judgment based upon a claims or debt that is less than one hundred dollars ($100.00), excluding court costs. (Attorney General´s Opinion to Newcomb dated April 4, 2008)

Q: Does a new law allow counties and municipalities to borrow money to purchase motor vehicles for public safety (police, fire, etc.) purposes?
A: Yes. Senate Bill 2673, effective July 1, 2008 revised Section 17-21-51 to allow notes to be issued for up to five years. These notes are subject to the limitations and procedures detailed in Section 17-21-51 and 17-21-53.

Q: Does a new law allow counties and municipalities to retain a higher percentage of the fine collected in their courts for convictions of persons for driving without motor vehicle insurance?
A: Yes. Senate Bill 3024, effective July 1, 2008 revised Section 63-15-4 to allow counties and municipalities to retain fifty per cent of the fine collected (was twenty-five percent).


June 2008

Return to top of page


Q: What are the guidelines to be used by a Circuit Court Judge in making the determination of the indigency of a defendant?
A: Section 25-32-9 provides general guidelines to be considered by the Circuit Court. In essence, the Circuit Court may use any means available, including examination under oath, to inquire into the issue of indigency. (Attorney General´s Opinion to Chamberlin dated May 23, 2008)

Q: Does a new law increase the maximum benefit amount an employee may assign for use in a Cafeteria Benefit Plan?
A: Yes. House Bill 42, effective 7/1/08 revised Section 25-17-3 to increase the maximum benefit available from $ 5,000 to $ 10,000.

Q: Does a new law require detention centers (jails) to notify the school of a minor if he/she is detained?
A: Yes. House Bill 348, effective 7/1/08 revised Section 43-21-321 to require this notice if a student is detained for one or more school days.

Q: Do governing authorities have to publish notice when a construction contract is complete?
A: No. Section 31-5-53 was revised in 2004 to remove the publication requirement for the one year time limit for claims against performance and payment bonds.

Q: Has a new law mandated that municipalities and counties adopt building codes promulgated by the Miss. Building Codes Council?
A: Yes. House Bill 1465, effective 7/1/08 revised Section 17-2-5 to require counties and municipalities (that adopt building codes after 7/1/08) to adopt codes promulgated by the Miss. Building Codes Council. If construction codes published before 1/1/2000 were adopted, they must be replaced by 7/1/10.


July 2008

Return to top of page


Q: Has the reimbursement rate for mileage been increased?
A: Yes, effective August 1, 2008 the federal mileage reimbursement rate has been raised from 50.5 cents per mile to 58.5 cents per mile.

Q: Does a new law limit the amount of combined leave and workers compensation pay a "state" employee may receive when paid due to a job related inability to work?
A: Yes. Senate Bill 2977, effective July 1, 2008 revised Section 25-3-95 to limit the total compensation to 100 % of the employee´s usual pay. Note: counties, municipalities, etc. that adopt personal and sick leave policies identical to the state´s may also be subject to this limitation [Sec. 25-11-103 (i)].

Q: Must municipalities and counties hold special public hearings if they intend to propose a budget that will require and ad valorem tax increase and/or adopt an ad valorem tax levy that will result in an increase in ad valorem taxes?
A: Yes. Section 27-39-203 requires a budget increase hearing and Section 27-39-205 requires a tax levy increase hearing. These hearings may be combined with each other; and in municipalities combined with the Section 21-35-5 budget hearing and its requirements.

Q: Are municipalities and counties required to give public notices of its ad valorem tax increase budget and levy hearings?
A: Yes. These hearing may only be held after two weekly advertisements containing a very specific format for the publication. This means the decision to propose ad valorem tax increases must be made soon; and publication of the hearings starts early in August. (Sec. 27-39-203 and 27-39-205)


August 2008

Return to top of page


Q: Does Senate Bill 2988, enacted in the 2008 legislative session, require state agencies, political subdivisions, and instrumentalities of the state, including municipalities, counties, community and junior colleges, Institutions of Higher Learning and school districts to implement the new E-Verify system by July 1, 2008, or is the date of implementation based upon the number of employees of the public entity?
A: July 1, 2008 is the deadline for all state agencies and political subdivisions to comply with the E-Verify System, regardless of the number of employees. For more information about E-Verify, go to the “U. S. Citizenship and Immigration Services” website at www.uscis.gov. (Attorney General´s Opinion to Pickering dated August 22, 2008)

Q: Must the municipal clerk/tax collector and county tax collector make a local privilege tax report at the end of the fiscal year?
A: Yes. Section 27-17-493 requires the Local Privilege Tax Register to be submitted for examination and approval. The register is submitted to the board in municipalities and to the county auditor (Chancery Clerk) in counties. This report must be made no later than the 20th of October.

Q: Must county and municipal tax collectors make an October filing of a certified list of property sold for taxes (ad valorem, special assessments, cleaning property, etc.)?
A: Yes. Section 27-41-79 require County Tax Collectors to file this list with the Chancery Clerk by the second Monday in October. Section 21-33-63 requires municipal tax collectors to file the list with the municipal clerk within 20 days of the tax sale and the clerk to file a certified copy with the Chancery Clerk of the County within 30 days of the sale.

Q: Does the new Ethics Law change how the Open Meeting and Open Record laws are enforced?
A: Yes. Senate Bill 2983, effective July 1, 2008, assigned authority to the Ethics Commission to address complaints in these areas. A summary of this bill as interpreted by the Ethics Commission is available at their web site: http://www.ethics.state.ms.us/ethics/ethics.nsf .

Q: If a traffic ticket was written prior to July 1, 2008 but is paid after July 1, 2008 should the court assessments in HB 1405 be collected?
A: Yes. The assessments provided in HB 1405, Chapter 549 of the 2008 Legislative Regular Session, would be applied on or after July 1, 2008 to any case on the date the court imposed a fine or other penalty on the violations covered by the Chapter. (Attorney General´s Opinion to Mullen dated August 15, 2008)


Return to top of page


Q: Does a utility district have the authority to forgive an underpayment for utility services due to a district billing error?
A: A utility debt may not be adjusted or forgiven when a customer has received the benefits of the utility service, regardless of the district´s error in billing. The method of recovery of an underpayment would be left to the discretion of the governing authorities, provided such does not result in a violation of the Mississippi Constitution´s prohibition of forgiveness of a debt. (Attorney General´s Opinion to Williams dated September 12, 2009)

Q: Is an auction company, which engages in the sale of all-terrain vehicles and motorcycles, subject to the trauma care fee on such sales as provided in House Bill 1405, 2008 Regular Session?
A: Retail sales of all terrain vehicles and motorcycles by auction companies, including sales to out-of-state purchasers, are subject to the point-of-sale fee for the trauma care system. There is not statutory exemption for sales by an auction company or sales to out-of-state purchasers. (Attorney General´s Opinion to Bounds dated September 5, 2008)

Q: When a municipal or county employee who is called to active duty for a period in excess of a year, is the municipality or county obligated to pay him for 15 days of military leave for each year of active duty?
A: The employee would be eligible to claim in each calendar year the 15 days of military leave provided for in Section 33-1-21, subject to provisions of the Uniform Services Employment and Reemployment Rights Act (USERRA). (Attorney General´s Opinion to Belk dated September 5, 2008).

Q: Are municipalities and participating counties authorized to collect the filing fee authorized in Section 25-60-5 (Local Government Records Document Filing Fee) on court filings in courts subject to their respective jurisdictions?
A: Municipalities and participating counties are authorized to collect a filing fee on court filings, including court documents, in any court subject to the jurisdiction of said municipality or county. (Attorney General´s Opinion to Holmes dated September 5, 2008)

Q: Has the State Auditor published information to assist local governments with understanding their options and procedures during disaster situations?
A: Yes. The “EMERGENCY ACCOUNTABILITY PLAN for Local Governments” provides guidance for emergency declarations, planning, policies, record retention, private property work, donations, purchasing, vehicle use, and many other procedures useful in disaster response. This publication may be found at the State Auditor´s web site under downloads @ http://www.osa.ms.gov.


October 2008

Return to top of page


Q: Must courts charge a defendant with "Local Court Assessments" costs if he/she is convicted of violating the Section 63-2-7 seat belt law?
A: Yes. The Attorney General´s Opinion addressed to Donny Joe Sparks on August 15, 2008 clarified that only "State Court Assessments" do not have to be paid when there is a conviction of the seat belt law.

Q: May law enforcement forfeiture funds be used to make necessary modifications to the communications or computer room of a police or sheriff´s department if the equipment is used solely for law enforcement purposes?
A: Yes. Law enforcement forfeiture funds may be used for any law enforcement purpose, but must be used to augment the existing budget and not to supplant it. (Attorney General´s Opinion to Bobo dated October 3, 2008)

Q: Does Section 43-37-3 allow a city or county to purchase real property for an amount greater than the fair market value of the property?
A: No. As amended by SB 2391 (2008 Reg. Sess.), Section 43-37-3 provides that purchases of real property may only be made for the lesser of the best negotiated price, the approved appraisal of fair market value, or the price at which the property is offered for sale. (Attorney General´s Opinion to Williams dated October 10, 2008)

Q: May a county work on municipal streets without charging the municipality?
A: Yes. Section 65-7-85 grants boards of supervisors authority to spend money for and work on municipal streets. Sections 65-7-79, 65-7-81, and 65-7-83 also provide for specific limited county work on municipal streets.

Q: When must a county work on municipal streets?
A: When the county and municipality have entered into a contract for the county to maintain the municipal streets in lieu of giving the municipality one half of the county road maintenance ad valorem taxes collected on property within the municipal limits as required under Sections 65-15-21 and 65-15-23.

Q: May municipalities and counties borrow or rent equipment and equipment operators from each other?
A: Yes. Section 17-5-15 allows such lending for public projects only. Each board must record the details of the agreement on its minutes.


Return to top of page


Q: Should social security numbers contained in documentation in court cases be removed from these records before they are made available to the public via the internet?
A: Local government bodies which possess public records containing social security numbers should establish in its public records policy a provision requiring the social security numbers be redacted before they are made available to the public on the internet. (Attorney General´s Opinion to McGinnis dated November 3, 2008)

Q: Can a Mississippi governing authority sell, transfer or trade property to out of state governing authorities, without necessity of competitive bids for less than fair market value, which could include sales for nominal consideration?
A: Yes, such sales, including those for nominal consideration, are authorized under Section 31-7-13(m)(vi). (Attorney General´s Opinion to Neyman dated October 31, 2008)

Q: May the governing authority of a county or municipality pay the cost of flu shots for its employees as part of an overall program to improve the health of its employees?
A: Yes, upon the appropriate finding by the applicable board, spread on its minutes, that such expenditure is necessary and accrues to the benefit of the governing authority, the board may pay the cost of flu shots for its employees. (Attorney General´s Opinion to Mozingo dated October 24, 2008)


Return to top of page


Q: When must a tax collector accept payment of real property ad valorem taxes?
A: No later than December 26. (Section 27-41-1)

Q: Must a tax collector accept payment of ad valorem taxes in partial payments?
A: No, partial payments must be allowed by board order. (Section 27-41-1)

Q: May a state agency or local government (city, county, school, etc.) purchase Christmas gifts for or give cash bonuses to its employees?
A: No. Section 96 of the Miss. Constitution of 1890, prohibits compensation that is not an obligation.

Q: May a local government accept a cash donation to be used to purchase gifts for employees?
A: No. After funds are accepted by a local government, they are restricted as other public funds. (Attorney General´s Opinion to Bruni dated May 15, 1998)

Q: Is a certificate of responsibility required for a construction project when a proposal, rather than a bid, is submitted by a party for construction project when the proposal is for more than $50,000.00 for a public project or more than $100,000.00 for a private project as set forth in Section 31-3-21?
A: Yes. A person must have a certificate of responsibility number when submitting either a bid or proposal on a project, both public and private, as contemplated in Section 31-3-21. (Attorney General´s Opinion to Sullivan dated October 24, 2008)

Q: Is there a separation of powers violation, pursuant to Art. 1, Section 2, of the Mississippi Constitution of 1890, if a county sheriff simultaneously serves as the mayor of a code charter city?
A: No. Both a sheriff and a code charter mayor serve in the executive branch of government. (Attorney General´s Opinion to Huffman dated November 7, 2008)

 

Return to top of page


Return to top of page