Can a Mississippi county pay for a feasibility study on converting a vacant school into an artist residency to boost tourism?

Plain-English summary

Coahoma County was considering whether to redevelop a vacant school building to attract and house resident artists, to enhance the County's image as a tourist and vacation destination. Before committing to the redevelopment, the Board of Supervisors wanted to commission a feasibility study and pay for part of it. The Board's attorney asked whether the County had statutory authority to do so.

The AG said yes, under the county home-rule statute (§ 19-3-40). Mississippi gives counties broad authority "to adopt any orders, resolutions or ordinances with respect to county affairs, property and finances, for which no specific provision has been made by general law and which are not inconsistent with the Mississippi Constitution," including specific other statutes.

The AG had previously authorized municipalities to pay for feasibility studies under the parallel municipal home-rule statute (§ 21-17-5), and had authorized other public bodies to commission studies in various contexts. The county home-rule statute had similar language. So the Board could fund the feasibility study, provided it found that the expenditure would benefit the County.

A footnote tied this to the Mississippi Constitution's donation provision (Article 4, § 66): quoting its prior Mayo opinion, the AG noted that an expenditure for a public or authorized purpose, and not for the sole benefit of private individuals, is not an unlawful donation under § 66 even if it produces incidental benefits to private individuals.

The opinion was narrowly limited to the feasibility study question. It did not address whether the actual artist-residency use of the vacant school building would be a permissible public use of public property, which would be a separate analysis if the County moved forward.

Currency note

This opinion was issued in 2021. 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.

What the opinion said for each audience, at the time

For Mississippi county boards of supervisors

Under the opinion, the county home-rule statute (§ 19-3-40) let a board of supervisors engage a firm to conduct a feasibility study and pay for a portion of it, "provided it finds that the expenditure will benefit the county." The AG found no provision of state law that would be inconsistent with a county doing so for the redevelopment study described in the request.

For counties studying redevelopment of public property

The opinion treated the decision to study a project as within home-rule authority where no specific statute addresses it. It was careful to separate the study from the project itself: the AG said its opinion was "limited to the question presented and does not address whether the proposed use of the vacant school building, if that building remains public property, is a proper public use."

For Coahoma County residents following the project

The opinion did not endorse or critique the artist-residency idea. It addressed only the County's authority to pay for a feasibility study, and conditioned that authority on the Board's finding that the expenditure would benefit the county.

For attorneys advising public bodies on home-rule expenditures

The opinion applies the home-rule framework directly: a county may act under § 19-3-40 on matters "for which no specific provision has been made by general law and which are not inconsistent with the Mississippi Constitution," the Code, or other state law, provided the board finds the expenditure benefits the county. The opinion also cites prior office opinions reaching the same result for municipalities under § 21-17-5 and for other public bodies.

Common questions

Q: What's the difference between county home rule and municipal home rule in Mississippi?
A: The opinion describes § 19-3-40 (counties) as containing "similar language" to § 21-17-5, the home-rule statute applicable to municipalities. Both let the local government adopt orders, resolutions, or ordinances on matters not specifically addressed by general law and not inconsistent with the constitution or other state law.

Q: What does "no specific provision has been made by general law" mean?
A: Home rule under § 19-3-40 reaches county affairs for which no specific general-law provision exists and which are not inconsistent with the constitution, the Code, or other state law. Here the AG "found no provision of state law" inconsistent with the County funding the feasibility study, so the home-rule grant applied.

Q: Why does the constitution's donation clause matter?
A: Article 4, § 66 of the Mississippi Constitution limits using public funds as a donation or gratuity. In a footnote, the AG quoted its prior Mayo opinion: "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."

Q: Does this opinion authorize the actual artist residency?
A: No. The opinion specifically said: "The application of this opinion is limited to the question presented and does not address whether the proposed use of the vacant school building, if that building remains public property, is a proper public use." That would be a separate question if the County moved forward.

Q: How much can a county pay for a feasibility study?
A: The opinion did not set a dollar limit. It conditioned the expenditure on the Board finding that it would benefit the county, leaving that judgment to the board.

Q: Can a county fund part of the study and have someone else fund the rest?
A: The opinion addressed paying "for a portion of the study," which was the question presented, and answered yes under § 19-3-40 subject to the benefit finding.

Background and statutory framework

Section 19-3-40 is the county home-rule statute. It gives a board of supervisors power "to adopt any orders, resolutions or ordinances with respect to county affairs, property and finances, for which no specific provision has been made by general law and which are not inconsistent with the Mississippi Constitution, the Mississippi Code of 1972, or any other statute or law of the State of Mississippi." The opinion notes it contains language similar to the municipal home-rule statute, § 21-17-5.

The AG had previously read § 21-17-5 to let a municipality pay for a feasibility study on whether a motel/restaurant would be prosperous, "provided that the municipality finds that the expenditure will benefit the municipality" (Barton, 2015), and had authorized other public bodies to commission feasibility studies in other contexts (Pigott, 1994, on flood control; Sherard, 2001). Applying the same approach to the county statute, the AG found no inconsistent provision of state law and concluded the Coahoma County Board could fund the study, subject to its finding that the expenditure would benefit the county, while expressly leaving the lawfulness of the eventual use of the building for a separate analysis.

Citations and references

Constitutional provisions:

• Miss. Const. art. 4, § 66, prohibition on donations or gratuities (footnote analysis)

Statutes:

• Miss. Code Ann. § 19-3-40, county home-rule statute
• Miss. Code Ann. § 21-17-5, municipal home-rule statute (analogous)

Prior AG opinions cited:

• MS AG Op., Barton (July 24, 2015), municipalities authorized to fund motel/restaurant feasibility study under § 21-17-5
• MS AG Op., Pigott (Jan. 27, 1994), Pearl River Development District authorized to commission feasibility study related to flood control
• MS AG Op., Sherard (June 1, 2001), public body authority to commission feasibility studies
• MS AG Op., Mayo (July 31, 2020), expenditure for public or authorized purpose, with incidental private benefit, is not unlawful donation

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2021/05/T.RossJr._May-3-2021-Authority-to-pay-for-a-feasibility-study.pdf

Original opinion text

May 3, 2021

Tom T. Ross, Jr., Esq.
Attorney for Coahoma County Board of Supervisors
Post Office Box 579
Clarksdale, Mississippi 38614

Re: Authority to pay for a feasibility study

Dear Mr. Ross:

The Office of the Attorney General has received your request for an official opinion.

Question Presented

May the Coahoma County Board of Supervisors ("Board") engage a firm to conduct a feasibility study to determine whether the redevelopment of a vacant school building for the purpose of attracting and housing resident artists thereby enhancing the County's image as a tourist and vacation destination and pay for a portion of the feasibility study?

Brief Response

Yes. Pursuant to the county "home rule" statute, the Board may engage a firm to conduct a feasibility study and pay for a portion of the study, provided it finds that the expenditure will benefit the county.

Applicable Law and Discussion

We have previously opined that municipalities are authorized to expend funds for the purpose of conducting a feasibility study to determine whether a motel/restaurant would be prosperous within the municipality, in accordance with its authority under the "home rule" statute applicable to municipalities, Mississippi Code Annotated Section 21-17-5, provided that the municipality finds that the expenditure will benefit the municipality. MS AG Op., Barton at 1-2 (July 24, 2015). Other opinions issued by this office have authorized a public body to commission a feasibility study under various circumstances. See, e.g., MS AG Op., Pigott at 2 (Jan. 27, 1994) (authorizing Pearl River Development District to conduct a feasibility study related to flood control); MS AG Op., Sherard at *1 (June 1, 2001).

Section 19-3-40 is the county "home rule" statute and contains similar language to the "home rule" statute applicable to municipalities. It provides, in part:

(1) The board of supervisors of any county shall have the power to adopt any orders, resolutions or ordinances with respect to county affairs, property and finances, for which no specific provision has been made by general law and which are not inconsistent with the Mississippi Constitution, the Mississippi Code of 1972, or any other statute or law of the State of Mississippi; and any such board shall likewise have the power to alter, modify and repeal such orders, resolutions or ordinances. Except as otherwise provided in subsections (2) and (3) of this section, the powers granted to boards of supervisors in this section are complete without the existence of or reference to any specific authority granted in any other statute or law of the State of Mississippi.

We find no provision of state law that would be inconsistent with a county board of supervisors, pursuant to Section 19-3-40, engaging a firm to conduct a feasibility study to determine whether the redevelopment of a vacant school building for the purpose of attracting and housing resident artists to further enhance the County's image as a tourist and vacation destination and pay for a portion of the study, provided such board of supervisors finds that the expenditure will benefit the county.[1]

The application of this opinion is limited to the question presented and does not address whether the proposed use of the vacant school building, if that building remains public property, is a proper public use.

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/ Phil Carter
Phil Carter
Special Assistant Attorney General

[1] MS AG Op., Mayo at *1 (July 31, 2020) ("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.").