Can a Mississippi county pay for or reimburse a county supervisor's home internet service so they can do county business from home?

Plain-English summary

Clarke County's attorney described a situation where a county supervisor lived in an area without broadband internet. Service was expected to become available soon, and the county wanted to pay for or reimburse the supervisor's hookup and monthly service so the supervisor could conduct county business from home.

The AG said the county can do this, but only with formal findings on the board's minutes that the expense is reasonable and necessary for the supervisor's duties or county business.

The framework is the Mississippi Constitution's prohibition on using public funds for private purposes. The AG cited a 2014 Shepard opinion involving a county coroner and home internet: "A board of supervisors cannot expend public funds to provide internet service to a private home of the county coroner, unless the Board finds, consistent with fact and spread upon the minutes, that such are necessary to the performance of her duties or to conduct public business of the county." The same rule applies to a county supervisor.

Two specific concerns:

1. The board must make the necessary-and-reasonable finding before authorizing payment. Findings entered on the minutes establish the public-purpose justification.

2. The board must ensure public funds do not subsidize personal use. The 2012 Norwood opinion analyzed cell phone reimbursement for county employees and required boards to determine the percentage of business use, with proper documentation.

The duration question: the board can pay for the broadband for as long as the necessary-and-reasonable findings hold, not exceeding the supervisor's time in office. When the supervisor's term ends, the public-purpose justification ends.

The opinion also referred the county to the State Auditor's Technical Assistance Division for guidance on specific payment structures.

What this means for you

For county attorneys and boards of supervisors

Under the opinion, a county "cannot expend public funds to provide broadband/internet service to a private home of a member of the Board of Supervisors, unless the Board finds, consistent with the facts and spread upon the minutes, that such expenses are reasonable and necessary to the performance of the supervisor's duties or to conduct public business of the county." The opinion also requires the board to "ensure that public funds are not used for the supervisor's personal use" of the service, drawing on the Norwood opinion, which let a board determine the percentage of monthly usage tied to county business and enter procedures on its minutes. The opinion notes the expenditure "would be subject to review by the State Auditor" and refers the county to the State Auditor's Technical Assistance Division for guidance on specific payment structures.

On how long the county may pay

The opinion answers the duration question directly: the board "may pay for such services for as long as, consistent with the facts and spread upon the minutes, the Board determines such expenses are reasonable and necessary to the performance of the supervisor's duties or to conduct public business of the county, not to exceed the time during which the supervisor is in office."

For taxpayers

The opinion frames the payment as permissible only with the on-the-minutes finding that it is reasonable and necessary, and only so long as that remains true. The Mississippi Constitution, it notes, "has placed strict controls on the use of public resources for private purposes," and the expenditure is subject to review by the State Auditor.

Common questions

Q: Can a Mississippi county pay a supervisor's home internet bill?
A: Only conditionally. The opinion says the county cannot do so "unless the Board finds, consistent with the facts and spread upon the minutes, that such expenses are reasonable and necessary to the performance of the supervisor's duties or to conduct public business of the county."

Q: What about the supervisor's personal use of the internet?
A: The opinion flags this as "the obvious concern" and requires the board to ensure public funds are not used for personal use. It points to the Norwood opinion, under which a board may determine the percentage of monthly usage associated with county business and adopt procedures, entered on its minutes, to keep public funds from covering personal use.

Q: How long can the payments continue?
A: For as long as the board's reasonable-and-necessary findings hold, "not to exceed the time during which the supervisor is in office," per the opinion.

Q: Does the same rule apply to other officials, like a coroner?
A: The framework comes from the 2014 Shepard opinion about internet service to a county coroner's home, which set the same reasonable-and-necessary, spread-upon-the-minutes requirement. The Hammack opinion applies that rule to a supervisor.

Q: Who reviews these expenditures?
A: The opinion states the expenditure is "subject to review by the State Auditor" and refers the county to the State Auditor's Technical Assistance Division for guidance on specific payments.

Background and statutory framework

The opinion does not pin-cite a statute. It rests on the constitutional principle, stated in the 2015 Shepard opinion, that "the Mississippi Constitution has placed strict controls on the use of public resources for private purposes."

The core test comes from the January 2014 Shepard opinion, which addressed whether a county could provide internet to a coroner's home for official duties. That opinion held a board "cannot expend public funds to provide internet service to a private home of the county coroner, unless the Board finds, consistent with fact and spread upon the minutes, that such are necessary to the performance of her duties or to conduct public business of the county." The opinion adds that the use must also be reasonable, citing the Custom (Jan. 31, 2014) and Balch (Feb. 18, 1993) opinions.

For the personal-use concern, the opinion relies on the Norwood opinion (Mar. 12, 2012), which allowed a board to determine the percentage of a county employee's personal cell-phone use attributable to county business and to authorize reimbursement, by order or resolution entered on the minutes, with procedures ensuring public funds are not spent on personal use.

The phrase "spread upon the minutes" is a Mississippi term of art for entering a finding in the official board minutes as a permanent record. The opinion closes by referring the county to the State Auditor's Technical Assistance Division for guidance on specific broadband payments.

Citations and references

Statute and constitutional framework:

• Mississippi Constitution prohibition on use of public resources for private purposes (referenced; specific section not pin-cited in opinion)

Prior AG opinions cited:

• MS AG Op., Balch (Feb. 18, 1993), expenditures must be reasonable
• MS AG Op., Custom (Jan. 31, 2014), expenditure reasonableness requirement
• MS AG Op., Norwood (Mar. 12, 2012), cell phone reimbursement for personal-phone county use
• MS AG Op., Shepard (Jan. 10, 2014), board cannot pay for coroner home internet without findings on minutes
• MS AG Op., Shepard (Aug. 7, 2015), Mississippi Constitution places strict controls on public-resource use for private purposes

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2021/12/W.Hammack-November-23-2021-Payment-or-Reimbursement-for-Cost-of-Hookup-and-Delivery-of-Broadband-Internet-Service-to-County-Supervisors-Home.pdf

Original opinion text

November 23, 2021

William C. Hammack, Esq.
Attorney, Clarke County Board of Supervisors
1724A 23rd Avenue
Meridian, Mississippi 39301

Re: Payment or Reimbursement for Cost of Hookup and Delivery of Broadband/Internet Service to County Supervisor's Home

Dear Mr. Hammack:

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

Background

According to your request, a member of the Clarke County Board of Supervisors (the "Board") lives in an area that does not currently have broadband/internet service. You state that it is anticipated that in the near future such service will become available and will be a great benefit to the County and the supervisor's availability to communicate about county business. We understand that, after a subsequent conversation with you, the supervisor's home would not be the only home receiving broadband/internet service if service was made available to the area.

Questions Presented

1. May the County pay for or reimburse a supervisor for the cost of hookup and delivery of broadband/internet service to the supervisor's home when and if made available?

2. If the answer to the previous question is "yes," what would be considered a reasonable limit on the period of time during which a reimbursement would be allowed?

Brief Response

1. The County cannot expend public funds to provide broadband/internet service to a private home of a member of the Board of Supervisors, unless the Board finds, consistent with the facts and spread upon the minutes, that such expenses are reasonable and necessary to the performance of the supervisor's duties or to conduct public business of the county.

2. The Board may pay for the supervisor's broadband/internet services for as long as, consistent with the facts and spread upon the minutes, the Board determines such expenses are reasonable and necessary to the performance of the supervisor's duties or to conduct public business of the county, not to exceed the time during which the supervisor is in office.

Applicable Law and Discussion

In response to your first question, "[t]he Mississippi Constitution has placed strict controls on the use of public resources for private purposes." MS AG Op., Shepard at 1 (Aug. 7, 2015). This office previously analyzed whether a county could provide internet service to a coroner's home for her use in conducting investigations, preparing and filing reports, etc., necessary in the performance of her official duties. MS AG Op., Shepard (Jan. 10, 2014). In response, we stated: "A board of supervisors cannot expend public funds to provide internet service to a private home of the county coroner, unless the Board finds, consistent with fact and spread upon the minutes, that such are necessary to the performance of her duties or to conduct public business of the county." Moreover, such use must also be reasonable. MS AG Op., Custom at 1 (Jan. 31, 2014) (citing MS AG Op., Balch at *1 (Feb. 18, 1993)). As with all public expenditures, this expenditure would be subject to review by the State Auditor.

Your request raises the obvious concern of the supervisor using the internet at his home for personal reasons, in addition to use for public business. This office has opined that a board of supervisors may determine the percentage of monthly usage associated with county business for a county employee that uses his personal cell phone in lieu of obtaining a county cell phone, to allow the county employee to be reimbursed for county business. MS AG Op., Norwood at *1 (Mar. 12, 2012). This office did not find any specific prohibition against the reimbursement so long as:

[t]he Board of Supervisors determines, consistent with the facts, that the County will receive a benefit at least equivalent to the amount expended and, by order, resolution or ordinance duly entered on its minutes authorizes such reimbursements and establishes procedures that insure [sic] that public funds are not being spent to reimburse employees or officials for personal use of their cell phones.

Id. The Board must ensure that public funds are not used for the supervisor's personal use of broadband/internet service to his or her home. Id.

According to our conversations with you, your second question asks for how long the Board may pay for the supervisor's broadband services. It is the opinion of this office that the Board may pay for such services for as long as, consistent with the facts and spread upon the minutes, the Board determines such expenses are reasonable and necessary to the performance of the supervisor's duties or to conduct public business of the county, not to exceed the time during which the supervisor is in office.

For guidance regarding specific payments for broadband/internet services, we refer you to the Office of the State Auditor's Technical Assistance Division.

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/ Gregory Alston
Gregory Alston
Special Assistant Attorney General