Can a Mississippi IHL Board trustee receive per diem, travel reimbursement, and tort-claims protection while serving before Senate confirmation?

Plain-English summary

Governor Reeves had appointed four new IHL Board trustees on May 18, 2021, to fill vacant seats. The Senate had not yet confirmed them when they began attending and voting at IHL Board meetings. The Commissioner of Higher Education asked three practical questions:

1. Can these trustees receive per diem for meeting attendance before confirmation?
2. Can they be reimbursed for travel and lodging?
3. Are they covered by the Mississippi Tort Claims Act and other state immunities for their official actions during the pre-confirmation period?

The AG answered yes to all three:

Per diem. Section 25-3-69 (general per diem statute) was amended in 2001 to expressly authorize per diem before confirmation: "When the Governor, Lieutenant Governor or Speaker of the House of Representatives appoints a person to a board, commission or other position that requires confirmation by the Senate, the person may receive per diem compensation for the performance of official duties before such appointment is confirmed by the Senate."

Travel reimbursement. Section 25-3-41(8), also amended in 2001, contains the same authorization for mileage and other actual expenses before confirmation.

Tort Claims Act coverage. Section 11-46-1(f) defines "employee" for MTCA purposes broadly: "any officer, employee or servant of the State of Mississippi or a political subdivision of the state, including elected or appointed officials and persons acting on behalf of the state...in any official capacity, temporarily or permanently, in the service of the state...whether with or without compensation." That is "very broad" (per the AG's prior Howell 1996 opinion) and covers IHL Board trustees serving before confirmation.

The AG noted that whether the MTCA applied to a particular claim and whether actions were within course-and-scope of duties were fact questions outside the AG's official-opinion jurisdiction.

The opinion modified prior AG opinions (e.g., Burnett 2000) that had said pre-confirmation board members could not receive reimbursements or per diem.

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 new appointees serving before Senate confirmation in 2021

The opinion addressed appointees who attend and vote at meetings before the Senate confirms them. For that period, the AG concluded a Governor-appointed board member may receive per diem under § 25-3-69 and reimbursement for mileage and other actual expenses under § 25-3-41(8), and fits within the MTCA's broad definition of "employee" when acting within the course and scope of official duties.

For state finance and personnel officials processing appointee compensation

The opinion read the 2001 amendments to §§ 25-3-41(8) and 25-3-69 as authorizing per diem and expense reimbursement for Governor-appointed members before Senate confirmation. In footnote 2 the AG noted that earlier opinions holding the opposite (citing Burnett, 2000) are modified to the extent they conflict.

For boards and commissions handling pre-confirmation members

The opinion took as its starting point a scenario where appointees were attending meetings and voting before confirmation, and answered only the per-diem, reimbursement, and MTCA questions. It did not separately opine on the validity of pre-confirmation votes or on what a board may assign such members.

For attorneys handling claims involving IHL Board actions

The opinion concluded that IHL Board members serving before confirmation fit the broad "employee" definition in § 11-46-1(f) and, "when acting within the course and scope of their duties, are entitled to the protection of the MTCA." It cautioned that whether the MTCA applies to a particular claim, and whether an action was within course and scope, are fact questions it could not resolve by official opinion.

For Senate confirmation proceedings

The opinion did not change the Senate's confirmation role. Section 37-101-3(1) provides that the Governor appoints IHL trustees "by and with the advice and consent of the Senate"; the opinion addressed only the rights of appointees during the period before that confirmation.

Common questions

Q: Can a Governor-appointed IHL trustee be paid per diem before the Senate confirms them?
A: Yes. The AG concluded that under § 25-3-69, "board members appointed by the Governor may receive per diem compensation prior to confirmation by the Senate." The statute, as amended in 2001, expressly allows per diem for the performance of official duties before confirmation.

Q: Can they be reimbursed for travel before confirmation?
A: Yes. Under § 25-3-41(8), the AG said they "may receive reimbursements for mileage and other actual expenses incurred in the performance of official duties prior to confirmation by the Senate."

Q: How was the law before the 2001 amendments?
A: Before 2001, the AG had opined (citing Burnett, 2000) that board members could not receive per diem or reimbursement before confirmation. The opinion notes the 2001 Legislature amended §§ 25-3-41 and 25-3-69 (2001 Miss. Laws Ch. 440, H.B. 682) to allow those payments, and modifies the conflicting earlier opinions.

Q: How does the MTCA protect pre-confirmation trustees?
A: The opinion relies on § 11-46-1(f), whose definition of "employee" the AG (quoting its Howell opinion) calls "very broad," reaching "elected or appointed officials and persons acting on behalf of the state . . . whether with or without compensation." Under § 11-46-7, "no employee shall be held personally liable for acts or omissions occurring within the course and scope of the employee's duties." The AG concluded pre-confirmation trustees fit that definition.

Q: What about other immunities besides the MTCA?
A: The AG declined to address them. It read the third question, to the extent it asked about "any other state law immunities normally applicable to official actions of the IHL Board," as "too broad to address by official opinion."

Background and statutory framework

Section 37-101-3(1) governs appointment of the Board of Trustees of State Institutions of Higher Learning (IHL Board): the Governor appoints the members "by and with the advice and consent of the Senate," with seats tied to congressional and Supreme Court districts plus two at-large members. The initial appointments were staggered (one-third for four years, one-third for eight, one-third for twelve), and successors are appointed for twelve-year terms.

The opinion notes that in 2001 the Legislature amended §§ 25-3-41 and 25-3-69 (2001 Miss. Laws Ch. 440, H.B. 682) to allow per diem and reimbursement for board or commission members appointed by the Governor, Lieutenant Governor, or Speaker before Senate confirmation. The AG read those amended provisions as authorizing both payments for the IHL trustees during the pre-confirmation period.

On the third question, the AG relied on the MTCA's definition of "employee" in § 11-46-1(f), which (quoting the Howell opinion) it describes as "very broad" and which reaches "elected or appointed officials and persons acting on behalf of the state . . . whether with or without compensation." It concluded pre-confirmation IHL trustees fit that definition and are protected by the MTCA when acting within the course and scope of their duties, while declining to decide fact-specific questions of MTCA application or course-and-scope, and declining as "too broad" the question of any other immunities.

Citations and references

Statutes:

• Miss. Code Ann. § 11-46-1(f), broad definition of "employee" for MTCA purposes
• Miss. Code Ann. § 11-46-7, no personal liability for employees acting in course and scope
• Miss. Code Ann. § 25-3-41(8), travel and expense reimbursement, includes pre-confirmation appointees
• Miss. Code Ann. § 25-3-69, per diem compensation, includes pre-confirmation appointees
• Miss. Code Ann. § 37-101-3(1), IHL Board appointment process

Prior AG opinions cited:

• MS AG Op., Sutton (Apr. 22, 2016), MTCA application is fact-specific
• MS AG Op., Lucas (July 24, 2009), MTCA's limited waiver of sovereign immunity
• MS AG Op., Howell (Mar. 8, 1996), MTCA "employee" definition is "very broad"
• MS AG Op., Burnett (June 12, 2000), pre-2001 opinion that pre-confirmation appointees couldn't receive reimbursements (modified by this opinion)
• MS AG Op., Barrett (Aug. 29, 1984), AG can refuse to respond to overly broad questions

Bill referenced:

• 2001 Miss. Laws Ch. 440 (H.B. 682), amending §§ 25-3-41 and 25-3-69 to authorize pre-confirmation per diem and reimbursement

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2021/07/A.RankinsJr._July-21-2021-Board-of-Trustees-of-State-Institutions-of-Higher-Learning.pdf

Original opinion text

July 21, 2021

Alfred Rankins, Jr., Ph.D.
Commissioner of Higher Education
3825 Ridgewood Road
Jackson, Mississippi 39211

Re: Board of Trustees of State Institutions of Higher Learning

Dear Dr. Rankins:

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

Questions Presented

1. If the Governor appoints four new Trustees to the Board of Trustees of State Institutions of Higher Learning ("IHL Board") in vacation when the legislature is not in session, and if those four new Trustees attend official meetings of the IHL Board and vote on matters before the IHL Board prior to being confirmed by the Senate, may those Trustees be legally paid the statutorily provided per diem for days during which they participate in the meetings of the IHL Board?[1]

2. May those four new Trustees be legally reimbursed for travel and lodging expenses incurred in order to participate in the IHL Board meetings before they are confirmed by the Senate?

3. Lastly, would those four Trustees be protected by the Mississippi Tort Claims Act and any other state law immunities normally applicable to official actions of the IHL Board, when participating in and voting at official IHL Board meetings before those Trustees are confirmed by the Senate?

Brief Response

1. Pursuant to Section 25-3-69, board members appointed by the Governor may receive per diem compensation prior to confirmation by the Senate.

2. Pursuant to Section 25-3-41(8), board members appointed by the Governor may receive reimbursements for mileage and other actual expenses incurred in the performance of official duties prior to confirmation by the Senate.

3. IHL Board members fit within the broad definition of "employees of the state of Mississippi" as set forth in Section 11-46-1(f) and, when acting within the course and scope of their duties, are entitled to the protection of the MTCA.

Applicable Law and Discussion

Section 37-101-3(1), governing the appointment of IHL Board members, states:

The Governor, by and with the advice and consent of the Senate, shall appoint the members of the Board of Trustees of State Institutions of Higher Learning, one (1) member from each congressional district of the state as existing as of March 31, 1944, one (1) member from each Supreme Court district and two (2) members from the state at large, with the terms of each to begin on May 8, 1944. One-third (⅓) of the membership of said board so appointed shall be appointed for a period of four (4) years, one-third (⅓) for a period of eight (8) years and one-third (⅓) for a period of twelve (12) years. On the expiration of any of said terms of office the Governor shall appoint successors, by and with the advice and consent of the Senate, for terms of twelve (12) years in each case.

In 2001, the Legislature amended Sections 25-3-41 and 25-3-69 to allow reimbursements and per diem compensation for board or commission members appointed by the Governor, Lieutenant Governor or Speaker of the House prior to confirmation by the Senate. 2001 Miss. Laws Ch. 440 (H.B. 682). Section 25-3-41(8) now provides:

When the Governor, Lieutenant Governor or Speaker of the House of Representatives appoints a person to a board, commission or other position that requires confirmation by the Senate, the person may receive reimbursement for mileage and other actual expenses incurred in the performance of official duties before the appointment is confirmed by the Senate, as reimbursement for those expenses is authorized under this section.

With respect to per diem compensation, Section 25-3-69 provides:

Unless otherwise provided by law, all officers and employees of state agencies, boards, commissions, departments and institutions authorized by law to receive per diem compensation for each day or fraction thereof occupied with the discharge of official duties shall be entitled to Forty Dollars ($40.00) per diem compensation. When the Governor, Lieutenant Governor or Speaker of the House of Representatives appoints a person to a board, commission or other position that requires confirmation by the Senate, the person may receive per diem compensation for the performance of official duties before such appointment is confirmed by the Senate, as such per diem compensation is authorized under this section.

Accordingly, in response to your first two questions, board members who have been appointed by the Governor may receive both reimbursements for mileage and other actual expenses incurred in the performance of their duties and per diem compensation prior to Senate confirmation in accordance with the above cited statutes.[2]

With respect to your third question,[3] whether the Mississippi Tort Claims Act (the "MTCA") applies to a particular claim depends on questions of fact. MS AG Op., Sutton at *3 (Apr. 22, 2016) ("Whether a claim is subject to defenses, including the applicability of the Tort Claims Act, is a determination that must be made by the local government based on the facts of the claim."). Moreover, whether an individual's actions are within the course and scope of his or her duties requires a factual determination. This office cannot address questions of fact by way of an official opinion.

The MTCA "provides a limited waiver of sovereign immunity by the State and its political subdivisions for claims for money damages arising from certain torts of these governmental entities and torts of their employees while acting within the course and scope of their employment." MS AG Op., Lucas at *2 (July 24, 2009). Section 11-46-1(f) defines the term "employee" applicable to the MTCA:

"Employee" means any officer, employee or servant of the State of Mississippi or a political subdivision of the state, including elected or appointed officials and persons acting on behalf of the state . . . in any official capacity, temporarily or permanently, in the service of the state . . . whether with or without compensation . . . .

Miss. Code Ann. § 11-46-1(f) (emphasis added). This definition is "very broad." MS AG Op., Howell at *3 (Mar. 8, 1996). It is the opinion of this office that IHL Board members serving prior to Senate confirmation fit within the broad definition of "employees" set forth in Section 11-46-1(f). "An employee may be joined in an action against a governmental entity in a representative capacity if the act or omission complained of is one for which the governmental entity may be liable, but no employee shall be held personally liable for acts or omissions occurring within the course and scope of the employee's duties." Miss. Code. Ann. § 11-46-7.

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

[1] On May 18, 2021, Governor Reeves announced that he had appointed individuals to fill the four vacant seats on the IHL Board.

[2] Prior to the enactment of 2001 Miss. Laws Ch. 440 (H.B. 682), this office opined that board members could not receive reimbursements or per diem compensation prior to confirmation. See, e.g., MS AG Op., Burnett (June 12, 2000). To the extent that any prior opinions conflict with this opinion, the conflicting portions of those prior opinions are hereby modified.

[3] To the extent your third question asks this office to opine regarding "any other state law immunities normally applicable to official actions of the IHL Board," it is too broad to address by official opinion. See MS AG Op., Barrett at *1 (Aug. 29, 1984) (refusing to respond by official opinion on the basis that the question posed was overly broad).