Can a Mississippi community college spend public funds on PPE for students and employees without violating the constitutional ban on donations?

Plain-English summary

The attorney for East Central Community College's Board of Trustees asked whether the college could buy and provide personal protective equipment (PPE) to its students and employees without running afoul of Section 66 of the Mississippi Constitution. Section 66 prohibits a "donation in favor of any person or object" without a two-thirds legislative vote, and it has long been used to police whether public spending really serves a public purpose or just hands a benefit to a private individual.

The AG said yes, the college can buy and distribute PPE, as long as the board makes a determination that the purchase serves a statutory purpose, not the sole benefit of the recipients. Under Miss. Code Ann. § 37-29-67, the Mississippi Community College Board of Trustees has full power to do all things necessary for the successful operation of the district and to ensure educational opportunities for enrollees. Equipping students and staff with PPE so the campus can reopen safely fits squarely within that mandate. Any incidental benefit to individuals does not turn the purchase into a Section 66 donation.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Section 66 of the Mississippi Constitution provides: "No law granting a donation in favor of any person or object shall be enacted except by the concurrence of two-thirds of the members elect of each branch of the Legislature, nor by any vote for a sectarian purpose or use." Mississippi courts and AGs read this as a general prohibition on using public money to benefit private individuals or groups absent a public purpose.

The AG cites the office's standing position, articulated in MS AG Op., Brown (November 14, 2016): an expenditure is not an unlawful Section 66 donation if it is for a public or authorized purpose, even if private individuals receive incidental benefits. The line is between a payment whose primary purpose is public (lawful) and one whose primary purpose is private (a forbidden donation).

For community colleges, the authorizing statute is § 37-29-67, which gives the trustees "full power to do all things necessary to the successful operation of the district and the college or colleges or attendance centers located therein to insure educational advantages and opportunities to all the enrollees within the district." The opinion also references § 37-29-76 as a basis for "authorized expenditure[s]." In a pandemic, providing PPE so a campus can resume in-person operations is a textbook example of an action necessary to the successful operation of the district.

The opinion makes clear the board, not the AG, has to make the actual finding. The AG identifies the legal standard; the trustees have to apply it on the record. In practice, that means a vote spread on the minutes finding that the PPE purchase serves a statutory purpose tied to operating the college, not a desire to subsidize individual purchases of masks or hand sanitizer.

Common questions

Q: Does this opinion apply only to community colleges?
A: The Section 66 analysis (public purpose vs. private donation) applies to any Mississippi public body, but the specific authority cited (§ 37-29-67) is community-college-specific. K-12 districts, universities, and counties operate under their own enabling statutes, which generally support similar spending if the public-purpose finding is made.

Q: What kind of finding does the board need to make?
A: The opinion does not prescribe a form. As a practical matter, a vote of the trustees recorded in the minutes, identifying the statutory authority (§ 37-29-67) and the public purpose (safe campus operations), will satisfy the standard the AG describes.

Q: Does the board need a two-thirds legislative vote?
A: No, that requirement applies to legislative donations, not to expenditures by a public body acting within its authorized purposes. The AG's analysis avoids Section 66 entirely by concluding that a public-purpose expenditure is not a "donation."

Q: Could a community college give PPE to non-students or non-employees?
A: This opinion does not reach that question. Spending on the general public would require a different public-purpose justification and a separate analysis.

Q: What if a board distributes PPE without making a public-purpose finding first?
A: The AG's analysis depends on the determination being made. Without it, the expenditure is harder to defend if challenged. Boards considering similar spending should make the finding before, not after, the purchase.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Citations and references

Constitutional provisions:

• Mississippi Constitution, Section 66 (no donation without two-thirds legislative concurrence)

Statutes:

• Miss. Code Ann. § 37-29-67 (full power to operate community college district)
• Miss. Code Ann. § 37-29-76 (authorized expenditures)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2020/08/B.Mayo_July-31-2020-Providing-Personal-Protective-Equipment-to-Students-and-Employees.pdf

Original opinion text

July 31, 2020

Brian D. Mayo, Esq.
Attorney for the East Central Community College
Board of Trustees
Post Office Box 218
Newton, Mississippi 39345

Re: Providing Personal Protective Equipment to Students and Employees

Dear Mr. Mayo:

The Office of the Attorney General is in receipt of your request for the issuance of an official opinion.

Question Presented

Due to the COVID-19 pandemic, may the Board of Trustees ("Board") of East Central Community College ("ECCC") purchase and provide personal protective equipment ("PPE") for its students and employees, or would such purchase constitute an illegal donation under Section 66 of the Mississippi Constitution?

Brief Response

If the Board determines that PPE is necessary to achieve a statutory purpose and not for the sole benefit of the individual students and employees, ECCC may provide PPE to its students and employees.

Applicable Law and Discussion

Our office has consistently opined, that an expenditure for a public or authorized purpose, and not for the sole benefit of private individuals, is not an unlawful donation under Section 66 of the Mississippi Constitution, even if the expenditure results in incidental benefits to private individuals. MS AG Op., Brown (November 14, 2016).

As stated by your request, ECCC wishes to provide PPE to students and employees to allow for the campus to safely re-open in the fall. According to Miss. Code Ann. Section 37-29-67, the Mississippi Community College Board of Trustees "shall have the full power to do all things necessary to the successful operation of the district and the college or colleges or attendance centers located therein to insure educational advantages and opportunities to all the enrollees within the district."

It is the opinion of this office that, if the Board determines that providing PPE is necessary to achieve a statutory purpose, and not for the sole benefit of the individual students and employees, this expenditure would not constitute a donation in violation of Section 66 of the Mississippi Constitution. Rather, it would be an authorized expenditure pursuant to Section 37-29-76 that could potentially provide incidental benefits to the community college's students and employees.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Beebe Garrard
Beebe Garrard
Special Assistant Attorney General

Section 66 of the Mississippi Constitution provides:

No law granting a donation in favor of any person or object shall be enacted except by the concurrence of two-thirds of the members elect of each branch of the Legislature, nor by any vote for a sectarian purpose or use.