Can the Harrison County Utility Authority approve a solid waste contract over Gulfport's abstention, when the city no longer participates in solid waste services?

Plain-English summary

The Harrison County Utility Authority (HCUA) is an intergovernmental utility under the Mississippi Gulf Coast Region Utility Act. It has six member agencies: five Harrison County cities (including Gulfport) and Harrison County itself. Its statutorily-constituted board comprises the five mayors plus two members from the Harrison County Board of Supervisors.

The HCUA provides water, wastewater, and solid waste services. But Gulfport withdrew from the solid waste agreement and contracts directly with a third-party vendor for that service. Gulfport remains in the water and wastewater agreements.

The HCUA's attorney asked: when the HCUA enters a new solid waste contract that affects rates, can Gulfport's mayor abstain (since Gulfport doesn't get the service), or is Gulfport's vote required for the unanimous-vote rule?

The AG's answer: Section 49-17-729(2) requires "all actions affecting rates, bonds or capital improvements" to be by "unanimous vote of all members of the board." There is no carve-out for non-participating members. Even though Gulfport doesn't receive solid waste services from HCUA, Gulfport's mayor is still a statutory member of the HCUA board. The unanimous-vote requirement applies to all members.

Generally, abstentions are counted with the prevailing side. But when a statute requires "all members" to vote affirmatively, abstentions cannot be counted as yes votes. Oakman v. Town of Florence, 624 So. 2d 995 (Miss. 1993), holds that statutory voting requirements override general parliamentary practice. So if Gulfport's mayor abstains, the contract fails.

Question 4 expanded: can the HCUA enter a contract affecting rates, bonds, or capital improvements with only the affirmative votes of participating members? No. The statute requires unanimous vote of all members. There's no statutory mechanism for splitting authorities among participating subsets.

What this means for you

If you're an HCUA board member representing a participating member agency

Under this opinion, a contract affecting rates, bonds, or capital improvements requires a unanimous vote of all members of the board under § 49-17-729(2). There is no carve-out for non-participating members, so a participating member cannot rely on a non-participant abstaining to clear the path; an abstention prevents the unanimous vote.

If you're an HCUA board member from a non-participating member agency (like Gulfport on solid waste)

Under this opinion, you remain a statutory member of the board even after your city withdraws from a service. On an action affecting rates, bonds, or capital improvements, the AG explains that you may abstain, but the result of an abstention is that the action fails, because § 49-17-729(2) requires a unanimous vote of all members.

If you're a member agency considering withdrawal from a service

The opinion makes clear that withdrawing from a service does not remove your city from the HCUA board: Gulfport withdrew from the solid waste agreement but remains a statutory member, and its mayor's vote still counts toward the § 49-17-729(2) unanimous-vote requirement for rate-affecting contracts.

If you're a Mississippi legislator

The opinion reads § 49-17-729(2) to require a unanimous vote of all board members for any action affecting rates, bonds, or capital improvements, with no statutory mechanism for approving such actions with only the participating members' votes. It applies the statute as written and does not propose any change.

Common questions

Q: What does "all members" mean in the unanimous-vote requirement?
A: All seven board members (five mayors + two county supervisors). Not all participating members; all statutory members.

Q: Why does abstention not count as yes?
A: When a statute requires "unanimous vote of all members," it requires affirmative votes from all members. Oakman makes clear that statutory voting requirements override general parliamentary "abstain with majority" practice.

Q: What about a member who is absent from the meeting?
A: Same effect. The statute requires unanimous vote of all members. An absent member's missing vote prevents unanimity.

Q: Can the contract be structured to not affect rates?
A: If a contract genuinely doesn't affect rates, bonds, or capital improvements, the standard voting rule (§ 49-17-741) applies. But solid waste contracts typically do affect rates, as the AG noted.

Q: Does the HCUA still have to provide solid waste services to Gulfport?
A: No. Gulfport withdrew from that agreement. The HCUA serves only the participating member agencies. But Gulfport's voice on the board doesn't disappear with the withdrawal from the service contract.

Background and statutory framework

The Mississippi Gulf Coast Region Utility Act (Title 49, Chapter 17) created county utility authorities in the Gulf Coast region. Section 49-17-727 authorizes the HCUA. Section 49-17-729 establishes its board structure (five mayors + two supervisors) and voting rules.

The unanimous-vote rule for rate-affecting contracts is § 49-17-729(2)'s key protection for member agencies. The legislature gave member agencies a veto over actions that would affect their rate-paying constituents. The trade-off: contract approval can be blocked by a single dissenting or abstaining member.

Oakman v. Town of Florence, 624 So. 2d 995, 997 (Miss. 1993), interpreted a similar statutory voting requirement (two-thirds of all members of a legislative body) and held that abstentions could not count toward the threshold. The principle: when a statute specifies a numerical voting threshold, parliamentary defaults yield to the statutory text.

Citations and references

Statutes:

• Miss. Code Ann. §§ 49-17-701, et seq. (Mississippi Gulf Coast Region Utility Act)
• Miss. Code Ann. § 49-17-727 (HCUA creation)
• Miss. Code Ann. § 49-17-729(1) (HCUA board membership)
• Miss. Code Ann. § 49-17-729(2) (unanimous vote rule)
• Miss. Code Ann. § 49-17-741 (general business voting rule)

Case:

• Oakman v. Town of Florence, 624 So. 2d 995, 997 (Miss. 1993), statutory voting requirements override general parliamentary procedures

Prior AG opinion referenced:

• MS AG Op., Hornsby (Apr. 24, 2015), HCUA budget approved by unanimous vote if affecting rates

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/05/J.SimpsonJr.-April-26-2023-Harrison-County-Utility-Authority.pdf

Original opinion text

April 26, 2023

James C. Simpson, Jr., Esq.
Attorney, Harrison County Utility Authority
2510 14th Street, Suite 1125
Gulfport, Mississippi 39501

Re: Harrison County Utility Authority

Dear Mr. Simpson:

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

Background

In your request, you provide that the Harrison County Utility Authority ("HCUA") is a political subdivision of the state of Mississippi formed pursuant to Section 49-17-727 of the Mississippi Gulf Coast Region Utility Act (the "Act"). Miss. Code Ann. §§ 49-17-701, et seq. The HCUA comprises six member agencies, being the five incorporated cities in Harrison County and Harrison County itself. It is governed by a statutorily constituted board of directors comprising the five mayors of the municipalities in the County and two members of the Harrison County Board of Supervisors. The HCUA provides potable water, wastewater, and solid waste services to and on behalf of its member agencies within Harrison County under authority of the Act and pursuant to separate agreements among the member agencies.

While Gulfport remains a statutory member of the HCUA and its mayor a member of the board of directors, Gulfport has withdrawn from the agreement among the member agencies to participate in solid waste services and elected not to participate in HCUA's solid waste contract. Instead, Gulfport has chosen to contract directly with a third-party vendor for its solid waste collection and disposal services. Gulfport remains a party to the potable water and wastewater agreements among the members.

Questions Presented

1. Since Gulfport has withdrawn from the agreement among the member agencies to a joint contract for solid waste services and is not to receive or participate in the services to be provided under the new HCUA solid waste collection and disposal contract, may Gulfport abstain or simply not vote on the new HCUA contract, or is Gulfport required to vote under the statutory requirement that all actions affecting rates must be by unanimous vote of all members of the board?

2. May the HCUA enter a contract for solid waste services affecting rates for all participating member agencies with only the affirmative votes of the participating member agencies?

3. Keeping in mind that the members of the HCUA and its directors are set by statute and remain the same regardless, if your opinion is that a non-participating agency is not required to vote on such a contract, may it nevertheless choose to vote on such matter? What would be the effect of a sole "no vote" by the non-participating agency on such a contract?

4. Expanding the question to all services provided by the HCUA (water, wastewater, and solid waste), may the HCUA enter into a contract affecting rates, bonds, or capital improvements for only certain participating member agencies or affecting less than all agencies, with only the affirmative votes of those participating or affected member agencies?

Brief Response

1. While Gulfport may abstain from voting, because the HCUA may only enter a solid waste services contract that affects rates by unanimous vote of all members of the board, the result of an abstention would prevent the unanimous vote needed to enter into the contract.

2. No. Based on plain language of Mississippi Code Annotated Section 49-17-429, the HCUA may only enter a contract for solid waste services by unanimous vote of all members of the board.

3. The responses to your first two questions render this question moot.

4. The HCUA may only enter a contract affecting rates, bonds, or capital improvements by unanimous vote of all members of the board. The statute does not provide for approval of such actions by only certain participating member agencies.

Applicable Law and Discussion

Pursuant to Section 49-17-729(1), the HCUA board of directors consists of "the mayor of each city participating in the authority and the (2) directors appointed by the board of supervisors." According to Section 49-17-729(2), "[a]ll business of the Harrison County Utility Authority shall be transacted as provided in Section 49-17-741, except that all actions affecting rates, bonds or capital improvements must be by unanimous vote of all members of the board."

You assert in your request that contracts with third parties for solid waste collection and disposal services do, in fact, directly affect the rates to be paid by the HCUA, the member agencies, and ultimately the residents. See MS AG Op., Hornsby at *1 (Apr. 24, 2015) (opining that the HCUA annual budget had to be approved by unanimous vote if found to affect rates, bonds, or capital improvements). Accordingly, it is the opinion of this office that contracts that affect rates for solid waste services are statutorily required to be approved by unanimous vote of all members of the board, which would include the mayor of the City of Gulfport.

In response to your questions regarding abstentions or not voting, generally, abstentions are counted with the prevailing side. However, the Mississippi Supreme Court has held that if a statute provides specific voting requirements, those requirements apply over general parliamentary procedures. Oakman v. Town of Florence, 624 So. 2d 995, 997 (Miss. 1993) (holding that an abstention could not be counted with the majority vote when the statute required a favorable vote of two thirds of all of the members of a legislative body). Thus, if the board member representing Gulfport abstains or does not vote on an action affecting rates, bonds, or capital improvements, the action would not pass because the statute requires a unanimous vote of all members of the board.

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