Can a Mississippi city's recreation department give participants free arts/crafts and run after-school programs without charging fees?

Plain-English summary

The City of Columbus (a special charter municipality) operates a recreation department serving neighborhood parks. The City's attorney asked four related questions:

1. Can the recreation department provide arts and crafts supplies free of charge to participants?
2. If not, can the City charge a participation fee?
3. Can the City staff the after-school programs at no cost to participants, or must it charge?
4. If the answer to 1-3 is "no," can the City use an interlocal agreement with the school district?

The AG answered yes to questions 1 and 3, making questions 2 and 4 moot.

The reasoning is straightforward. Mississippi statutes give municipalities broad authority to create and fund parks, playgrounds, and recreational facilities. Section 17-1-3 authorizes counties and municipalities to "create playgrounds and public parks" and apply public money to that purpose. Section 21-17-1 lets municipalities purchase real estate for "all proper municipal purposes, including parks." Section 55-9-1 authorizes use of "any available surplus funds" for "constructing, equipping, maintaining and operating...recreational centers...or parks." Section 21-17-5 (the Home Rule statute) gives broad authority over municipal affairs, property, and finances. Section 17-3-1 lets counties and municipalities spend on "advertising," broadly defined to include public entertainment.

A 2014 AG opinion (Danos) and prior opinions (Smith 1990, Short 1998, Taylor 1996) had already held that municipalities can:

• Implement recreational and athletic programs
• Operate baseball programs through the city itself or through park commissions
• Hire personnel to run authorized programs
• Provide free transportation to participants
• Buy supplies, equipment, and uniforms

The 2021 opinion adds: the City can also provide free arts and crafts supplies, and staff after-school programs at no charge. The legal authority is the same broad municipal recreation power.

The opinion is conditional on the City making "the requisite factual findings that the program is consistent with Mississippi law." That language is the AG's standard caution: the City has the authority, but the City still has to budget the program properly, document the public purpose, and spend within its budget.

The opinion also notes the special charter status of Columbus. Special charters can either grant or limit local authority. The opinion's author accepts the City's representation that the special charter is silent on these issues, so general statutory provisions apply.

What this means for you

For Mississippi city recreation departments

The opinion holds that, "[a]ssuming the City has made the proper factual findings that the program is consistent with Mississippi law," the recreation department may spend public funds on arts and crafts supplies for participants "at no cost to the participants," and may staff the after-school programs with employees, also at no cost to participants. It grounds that in the broad municipal authority to "create and fund parks, playgrounds, and recreation facilities and to equip, maintain, and operate the same," citing Sections 17-1-3, 21-17-1, and 55-9-1, the Home Rule statute (Section 21-17-5, via Danos), and the advertising/public-entertainment authority in Sections 17-3-1 and 17-3-3.

For Mississippi mayors and aldermen

Because the opinion answered the first and third questions yes, it treated the fee questions (questions 2 and 4) as moot and did not opine on them. So the opinion confirms the City may offer these programs free, but it does not address whether or how the City could instead charge fees, or structure a fee schedule. The "requisite factual findings" condition recurs throughout: the authority exists, but the City must find the program consistent with Mississippi law and fund it through "its duly-authorized budget."

For special-charter Mississippi cities

Columbus is a special charter municipality. The opinion follows its standard framework (Carouthers): a charter city's powers flow from its charter, but where the charter is silent, general statutory provisions apply. The City represented that its charter is silent on these matters, and the opinion accepted that representation and applied general law.

On park commissions

A footnote states the opinion "presumes the City of Columbus has not established a park commission, pursuant to Section 21-37-33 et seq." The opinion does not analyze how its conclusions would differ for a city that has established one.

Common questions

Q: What "factual findings" does the City need to make?
A: The opinion repeats the phrase "requisite factual findings that the program is consistent with Mississippi law" but does not spell out a checklist. It ties the spending to the Department's "duly-authorized budget," so the findings run through the City's normal budget process. The opinion's point is that the authority exists provided the City makes that determination.

Q: Can the recreation department provide arts and crafts supplies for free?
A: Yes. The opinion concludes the Department "may expend public funds for arts and crafts supplies to be used by participants at a recreation authority neighborhood park facility, at no cost to the participants," assuming the requisite findings are made.

Q: Can the City staff after-school programs without charging participants?
A: Yes. The opinion holds the City "is authorized to spend municipal funds to pay operational costs of the park, which includes hiring personnel to run authorized programs," at no cost to participants. It relies on Smith (1990) and Danos (2014) for a municipality's authority to operate recreational programs and hire personnel.

Q: Did the opinion address charging fees, or an interlocal agreement with the school district?
A: No. Those were questions 2 and 4, each premised on a "no" to the earlier questions. Because the opinion answered questions 1 and 3 in the affirmative, it found questions 2 and 4 moot and did not opine on fee-charging or interlocal agreements.

Q: Where does the City's recreation authority come from?
A: The opinion lists Sections 17-1-3 (creating playgrounds and public parks), 21-17-1 (purchasing real estate for parks), and 55-9-1 (surplus funds for recreational centers and parks), plus the Home Rule statute (Section 21-17-5) and the public-entertainment/advertising authority in Sections 17-3-1 and 17-3-3. It calls this "broad authority to establish, regulate, and fund parks and recreational facilities."

Background and statutory framework

Mississippi has multiple overlapping authorities for municipal recreation:

Section 17-1-3: Counties and municipalities may create playgrounds and public parks, with eminent domain power, and may apply public money. Bond authority where permitted.

Section 21-17-1: Municipalities may purchase real estate for proper municipal purposes, including parks.

Section 21-17-5: The Home Rule statute. Broad authority over municipal affairs, property, and finances. Applies unless inconsistent with state law.

Section 21-37-33 et seq.: Optional park commission framework. Cities can establish a separate park commission with its own authority. Most cities do not; they run recreation through the regular city government.

Section 55-9-1: "Any available surplus funds" can be used for recreational centers and parks. This is a financial flexibility provision.

Section 17-3-1, 17-3-3: Public entertainment expenditure authority. Counties and cities can spend on advertising, including "publicity, expositions, public entertainment or other form of advertising or publicity, which in the judgment of such board or boards will be helpful toward advancing the moral, financial and other interests of such municipality or county." Recreation programming arguably fits within this broad public entertainment authority.

The combination of all these statutes plus the Home Rule statute gives Mississippi cities substantial recreation authority. The 2021 Turnage opinion brings them all together to support the recreation department's free programs.

The Smith (1990), Danos (2014), Short (1998), and Taylor (1996) opinions had already developed this body of law for specific recreational uses (baseball, transportation, supply purchases, fund allocation). The 2021 opinion extends to arts and crafts and after-school staff.

The "requisite factual findings" caveat runs through every answer: the opinion states the authority exists provided the City finds the program consistent with Mississippi law and funds it through its duly-authorized budget.

Citations and references

Statutes:

• Miss. Code Ann. § 7-5-25, AG opinions limited to prospective state law
• Miss. Code Ann. § 17-1-3, county and municipal authority for playgrounds and parks
• Miss. Code Ann. § 17-3-1, 17-3-3, public entertainment and advertising authority
• Miss. Code Ann. § 21-17-1, municipal authority to purchase real estate
• Miss. Code Ann. § 21-17-5, Home Rule statute
• Miss. Code Ann. § 21-37-33 et seq., optional park commission
• Miss. Code Ann. § 55-9-1, surplus funds for recreational centers

Prior AG opinions:

• MS AG Op., Carouthers (June 28, 2019), special charter framework
• MS AG Op., Danos (Aug. 22, 2014), municipalities may implement recreational and athletic programs
• MS AG Op., Smith (Jan. 17, 1990), municipality may operate baseball program; hire personnel and buy supplies
• MS AG Op., Short (Oct. 9, 1998), recreation department may provide free transportation
• MS AG Op., Taylor (May 10, 1996), board allocates funds; parks and rec director decides specifics

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2021/10/J.Turnage-October-11-2021-Recreation-Department-Expenditures.pdf

Original opinion text

October 11, 2021

Jeffrey J. Turnage, Esq.
Attorney, City of Columbus
Post Office Box 1366
Columbus, Mississippi 39703-1366

Re: Recreation Department Expenditures

Dear Mr. Turnage:

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

Questions Presented

1. May the City of Columbus' (the "City") Recreational Department (the "Department") provide art and craft supplies to participants at a recreation authority neighborhood park facility free of charge?

2. Assuming your answer to question number 1 is "no," may the Department collect a fee for participation in a program that is sufficient to cover the cost to the recreation authority for the provision of the art and craft supplies?

3. The Department also provides after-school programs at its recreation authority facilities. Is it legally allowed to staff the recreation facilities with employees to oversee the recreation functions for free, or does it have to collect a fee from the program participants sufficient to cover the salary of the employees?

4. If all the above questions are answered in the negative, may the City enter into an Interlocal Agreement with the local school district in order to provide the service at its recreation authority facility?

Preface

Columbus is a special charter municipality, and as such, the powers of the municipality flow directly from its charter. Ordinarily, questions about the workings of a municipality operating under a special charter should be answered by reference to the specific provisions of that charter; however, if the special charter is silent on a particular matter, general statutory provisions would apply. MS AG Op., Carouthers at *1 (June 28, 2019). You have indicated that the special charter of the City of Columbus is silent on the matters raised herein, and this office accepts your assertion. Thus, this opinion applies general statutory provisions.

Brief Response

1. Assuming the City has made the proper factual findings that the program is consistent with Mississippi law, the Department may expend public funds for arts and crafts supplies to be used by participants at a recreation authority neighborhood park facility, at no cost to the participants.

2. Your second question is premised on a negative response to your first question. Because we answered your first question in the affirmative, your second question is moot.

3. Assuming the City has made the proper factual findings that the program is consistent with Mississippi law, the City is authorized to spend municipal funds to pay operational costs of the park, which includes hiring personnel to run authorized programs.

4. Your fourth question is premised on negative responses to questions 1 through 3. Because we have answered questions 1 and 3 in the affirmative, your fourth question is moot.

Applicable Law and Discussion

Pursuant to Mississippi Code Annotated Section 7-5-25, official opinions of the Attorney General are limited to questions of law for future guidance and can neither validate nor invalidate past action. Therefore, to the extent the Department currently operates an after-school program, we provide guidance for prospective application only.

In response to your first question, multiple statutes authorize a municipality to create and fund parks, playgrounds, and recreation facilities and to equip, maintain, and operate the same.¹ See, e.g., Miss. Code Ann. §§ 17-1-3 ("The governing authority of each county and municipality may create playgrounds and public parks, and for these purposes, each of such governing authorities shall possess the power, where requisite, of eminent domain and the right to apply public money thereto, and may issue bonds therefor as otherwise permitted by law."); 21-17-1 (authorizing municipalities to purchase real estate for "all proper municipal purposes, including parks"); 55-9-1 (authorizing any available surplus funds to be used for "constructing, equipping, maintaining and operating . . . recreational centers . . . or parks."). Additionally, this office has previously opined that municipalities have authority to implement recreational and athletic programs. MS AG Op., Danos at *1 (Aug. 22, 2014) (relying on "Home Rule" authority set forth in Section 21-17-5). Clearly, municipalities are vested with broad authority to establish, regulate, and fund parks and recreational facilities.

Moreover, Section 17-3-1 authorizes counties and municipalities to expend public funds on advertising, which includes "newspaper and magazine advertising and literature, publicity, expositions, public entertainment or other form of advertising or publicity, which in the judgment of such board or boards will be helpful toward advancing the moral, financial and other interests of such municipality or county . . . ." Miss. Code Ann. §§ 17-3-1–3.

Based on the broad authority set forth above, this office is of the opinion that if the City makes the requisite factual findings that the program is consistent with Mississippi law, the Department, through its duly-authorized budget, may expend public funds for arts and crafts supplies to be used by participants at a recreation authority neighborhood park facility, at no cost to the participants. See MS AG Op., Taylor at 1 (May 10, 1996) (finding municipal governing board decides how municipal funds will be allocated for municipal parks, and the parks and recreation director will thereafter decide "how funds which are not specifically designated for certain purposes by the board of aldermen within the budget of the department will be spent"); see also MS AG Op., Short at 1 (Oct. 9, 1998) (opining that a recreation department may provide free transportation to and from participants' residences, to recreation facilities, and on field trips).

Your second question is premised on a negative answer to your first question. Because we answered your first question in the affirmative, your second question is moot.

With respect to your third question, in light of our response to your first question, if the City makes the requisite factual findings, the Department may staff recreational facilities with employees to oversee the Department's authorized recreational functions at no cost to program participants. This office has found that a municipality may operate its own baseball program for community children, either through a municipal park commission or through the city itself. MS AG Op., Smith at 1 (Jan. 17, 1990); see also Danos, at 1 (recognizing a municipality's authority to operate recreational and athletic programs and to spend municipal funds in pursuit of such programs). Operating the program would include hiring personnel to run the program and the purchasing of necessary supplies, equipment, and uniforms. Smith at *1. It is the opinion of this office that the City may use public funds to staff authorized programs.

Your fourth question is premised on negative responses to questions 1 through 3. Because we have answered questions 1 and 3 in the affirmative, your fourth question is moot.

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/ Misty Monroe
Misty Monroe
Special Assistant Attorney General