September 2009

AGRICULTURAL COMMISSION

The Mississippi Department of Agriculture and Commerce is authorized to prohibit same gender marriages on Museum property. (Spell, 9/25/2009)(#004)(OP-09-00510)

CONSTABLE

In a civil case in which there are two (2) defendants residing in the county in which the suit was filed the constable would receive a fee of $35.00 for the uniform total fee plus a fee of $5.00 for the additional defendant served in that county. (King, 9/25/2009)(#045)(OP-09-00516)

COUNTY EMPLOYEES

Where road workers were hired by the county at a specific salary level "or wage," any additional duties performed during normal working hours must be assumed to be within the scope of employment and part of the prescribed duties for which the employees are already receiving compensation. However, if the supervisors believe the compensation is insufficient for the work being performed, the employees' salaries or wages may be adjusted accordingly. (Daughdrill, 9/11/2009)(#053A)(OP-09-00513)

CRIMINAL LAWS

A person operating a motor vehicle at speeds of 100 plus miles per hour may, if the facts warrant, also be charged with reckless of careless driving. (Branch, 9/25/2009)(#057)(OP-09-00509) A defendant represented by counsel who waives indictment by criminal information is qualified for participation in a pre-trial intervention program as though he had been indicted. (Smith, 9/25/2009)(#057)(OP-09-00508) Absent a knowing and intelligent waiver no indigent may be imprisoned for any length of time without assistance of counsel. (McNeil, 9/25/2009)(#057)(OP-09-00507) If a vehicle in a forfeiture proceeding in circuit court is ordered returned to the owner or a third party the allowance of storage fees to the sheriff would be a decision for the court to make. If the court orders the vehicle forfeited payment of storage costs and costs of liquidation are allowed pursuant to Section 49-21-181 of the Mississippi Code. (Jones, 9/25/2009)(#057)(OP-09-00541)

DEPARTMENT OF WILDLIFE, FISHERIES, & PARKS

The Commission and the Department of Wildlife, Fisheries and Parks are the appropriate State Agencies authorized and empowered under state law to protect and conserve threatened and endangered species within the State. They are empowered to use any of their resources, including the Museum of Natural Sciences, for these purposes. (Polles, 9/11/2009)(#269)(OP-09-00527)

ELECTIONS-QUALIFICATIONS TO VOTE

A conviction of the crime of conspiracy to commit murder is not disenfranchising. (King, 9/25/2009)(#072)(OP-09-00572)

INSTITUTIONS OF HIGHER LEARNING

Authority granted to the Bureau of Comprehensive Long-Range Economic Planning is sufficient to include studying a strategic development plan specifically for the Mississippi Delta, which plan was first developed by a now defunct task force. (Hines, 9/18/2009)(#094)(OP-09-00506)

INTERLOCAL AGREEMENTS

Interlocal Cooperation Agreement between the City of Oxford, Mississippi and the University of Mississippi regarding tourism and the expansion of Oxford-University Stadium is approved. (Gurley, 9/4/2009)(#277)(OP-09-00528) The Interlocal Agreement involving Wayne County, George County, Greene County and Clarke County regarding the Regional Railroad Authority of East Mississippi is approved. (Mendenhall, 9/21/2009)(#277)(OP-09-00577) Approval of Interlocal Agreement between the Cities and Chiefs of Police of Tupelo, Pontotoc, Amory, Booneville, Fulton, Okolona and Baldwyn and the Counties and Sheriffs of the Counties of Lee, Chickasaw, Monroe, Itawamba, Pontotoc, and Prentiss establishing the North Mississippi Narcotics Unit/2009-2010. (Bostick, 9/21/2009)(#277)(OP-09-00490) Interlocal Agreement between Lauderdale County and Town of Marion to apply for funding under the PSIC Grant to fund interoperable radio communications between public safety agencies of the county and city is approved. (Barry, 9/21/2009)(#277)(OP-09-00521) Interlocal Agreement between Lawrence County and Town of Silver Creek to apply for funding under the PSIC Grant to fund interoperable radio communications between public safety agencies of the county and city is approved. (Rogers, 9/21/2009)(#277)(OP-09-00501) Interlocal Agreement between Lawrence County and Town of New Hebron to apply for funding under the PSIC Grant to fund interoperable radio communications between public safety agencies of the county and city is approved. (Rogers, 9/21/2009)(#277)(OP-09-00502) Interlocal Cooperative Agreement between City of Vicksburg and Warren County for construction of monument for Purple Heart Recipients is approved. (Thomas, 9/25/2009)(#277)(OP-09-00430) Interlocal Agreement between Covington County and the City of Collins to apply for funding under the PSIC Grant to fund interoperable radio communications between public safety agencies of the county and city is approved. (Sanford, 9/25/2009)(#277)(OP-09-00530) Interlocal Cooperative Agreement between Simpson County and the City of Magee for collection of taxes by the county for the town is approved. (Welch, 9/21/2009)(#277)(OP-09-00505) Interlocal Cooperative Agreement between Newton County and the Town of Lake for collection of taxes by the county for the town is approved. (Seal, 9/21/2009)(#277)(OP-09-00500)

MISCELLANEOUS

Section 49-17-737 contemplates that mayors appoint someone other than themselves to serve on the Hancock County Utility Authority. (Rafferty, 9/25/2009)(#115)(OP-09-00548)

MUNICIPALITIES

A mayor of a code charter municipality may veto the termination of a municipal officer or employee by the board of aldermen. A mayor may not veto a decision of a board of aldermen not to appoint or re-appoint an individual to a municipal position. (Holder, 9/25/2009)(#149)(OP-09-00558) Where the municipal prosecutor, due to recusal, is unable to handle the appeal of a municipal criminal case to county court by the defendant, then the municipality is responsible for appointing and paying a special prosecutor. (Hawkin, 9/25/2009)(#142)(OP-09-00553) A volunteer fire department is considered to be a private, non-profit corporation and is not considered to be a "municipal fire department" nor under the control and supervision of the municipality. (Holder, 9/24/2009)(#142)(OP-09-00559) In light of the additional facts provided, the proposed construction may not constitute a violation of the subject deed. However, the proposed construction of the cross could possibly expose the municipality to substantial liability for violations of the First Amendment of the United State Constitution. (Baum, 9/17/2009)(#142)(OP-09-00471) A municipality may perform work on private property for the purpose of maintaining and preventing flooding on city streets and to correct unsafe conditions or alleviate erosion or flooding. In addition, a municipality is authorized, upon the issuance of an emergency declaration, to use its equipment and employees to remove debris and to perform any other necessary and needed services to prevent the spread of disease or any other health hazard to the community at large. (Bryant, 9/18/2009)(#142)(OP-09-00511) A municipality may reduce a utility bill unreasonably increased because of unforseen circumstances and for which a customer did not receive the benefits of a utility service. There is no statutory prohibition against a refund of erroneously-paid charges to a customer by a municipality and such refund may be made by permitting a credit toward the payment of future utility service bills or by payment in installments, provided that such method of payment is consistent with the negotiated settlement. (Turner, 9/11/2009)(#142)(OP-09-00512) The City of Gulfport may adopt a policy requiring the council clerk and deputy council clerk to sign a non-disclosure or confidentiality agreement containing reasonable restrictions regarding the non-disclosure of information obtained as a result of their employment. Such an agreement cannot preclude a council clerk or deputy council clerk from disclosing information that is required to be disclosed by law. (Brannon, 9/18/2009)(#142)(OP-09-00514) A municipality may act as its own general contractor and may "subcontract" individual phases of a project to upgrade a sportsplex provided the separate contracts are not made for the purpose of circumventing the bid laws and are in accordance with all other statutes regarding public construction and public purchasing. (Carter, 9/11/2009)(#142)(OP-09-00538) COBRA payments may not be made directly to a third part administrator instead of the municipality. (Murdock, 9/4/2009)(#142)(OP-09-00503) The City of D'Iberville is not required to have a civil service commission. (Hornsby, 9/4/2009)(#146)(OP-09-00517)

OPEN/MEETINGS/OPEN RECORDS

Public records containing information that is not exempt or privileged which are provided to one vendor must be provided to other vendors, provided the request is made in conformance with the Mississippi Public Records Act. (Morgan, 9/18/2009)(#272)(OP-09-00535)

PUBLIC PURCHASES CONTRACTS AND BIDDING

Governing authorities may not bind a successor board to a contract for waste water management beyond the terms of office of the current governing authorities. Such contract is voidable at the option of the new board and is subject to the mandates imposed in Section 31-7-13(r), even when the scope of the contract is limited to the provision of professional services alone. (St.Pe, 9/18/2009)(#280)(OP-09-00515) Change orders must be necessary or incidental to the scope of the contract as originally bid, must not be a new undertaking outside the original scope of the construction contract, must be commercially reasonable and not made to circumvent the public purchasing statutes and the resulting increase or decrease in cost must be reasonable. (Brannon, 9/11/2009)(#280)(OP-09-00504) A public entity may consider factors other than the monetary amount of a bid in making a determination of "lowest and best bid". With respect to the submission of a single bid, there is no prohibition barring a public entity from accepting a bid when only one bid has been submitted. A fundamental principle of the competitive bidding process is that all bidders must be treated alike. (Dye, 9/11/2009)(#280)(OP-09-00495)

SCHOOLS

The amendments of Section 31-7-13 relating to American Recovery and Reinvestment Act ("ARRA") projects apply to school construction paid from the proceeds of qualified school construction bonds ("QSCB's"). If ARRA projects were previously advertised and awarded in accordance with existing State law at that time, there is no requirement under Section 31-7-13 to readvertise such projects. School districts must comply with the reporting requirements of Section 31-7-13 for such projects as soon as possible once an official determination has been made by the respective school board to issue QSCB's. Purchases of commodities and equipment with ARRA funds are not required to be advertised for bids, if an exception to the bid requirements under paragraph (f) of Section 31-7-13 is applicable. (Young, 9/11/2009)(#175)(OP-09-00536) Since 37-9-55 specifically provides that applications from contract employees to be released from their contract must be made to and approved by the school board. Such duty may not be delegated to the superintendent. (Null, 9/25/2009)(#179)(OP-09-00565) Blanket surety bonds may be provided for members of the board of trustees of a municipal separate school district in accordance with Section 37-6-15. (Oakes, 9/11/2009)(#211)(OP-09-00493)

SEPARATION OF POWERS

An alderman may work in a municipal school district provided it is not in the position of superintendent, school attendance officer or other position that exercises substantial policy making powers at the core of the executive branch of government. (Blackmon, 9/18/2009)(#271)(OP-09-00542) Even where no conflicts of interest may exist, the separation of powers doctrine will operate to disqualify an official from serving in two different branches of government. (Holleman, 9/18/2009)(#271)(OP-09-00540)

SHERIFFS-AUTHORITY

Only the board of supervisors may approve increases or decreases to the various categories in the sheriff's budget and the sheriff is without authority to move funds from one category to another with board approval. (Rainey, 9/25/2009)(#213)(OP-09-00476)

SUPERVISORS

Where the amount is included in the certified copy of the order adopted by the school board, filed with the levying authority pursuant to Section 37-61-9, the levying authority shall determine the mileage rate necessary to generate funds equal to the dollar amount requested by the school board. Failure by the Board of Supervisors to faithfully perform their duties under law could result in an action filed in a court of competent jurisdiction against the supervisors' official bond. (Ferguson, 9/25/2009)(#220)(OP-09-00526) Board of Supervisors inadvertent failure to list on the county road registry a road heretofore considered a county road and maintained by the county, as such, does not, in and of itself, amount to abandonment of a public road. Since no formal abandonment procedures have been effectuated, the board would be authorized to make a finding on its minutes that the road was erroneously omitted from the map and registry, and add it to the registry and continue to maintain the road. (Morgan, 9/11/2009)(#231)(OP-09-00524)