If a Mississippi county employee made an unauthorized purchase, can the county itself go to court to get permission to pay the vendor?

Subject

Bolivar County Unauthorized Purchase

Recipient

Stephanie N. Morris-Harris, Esq., Attorney, Bolivar County Board of Supervisors

Plain-English summary

Bolivar County's road manager secured a $600 purchase order for a one-week equipment rental in September 2022. The equipment was not returned until January 2023, and the invoices to the county totaled $7,272. The board of supervisors had not authorized the additional rental fees. The county's attorney asked the AG whether the county could petition a court for authority to pay the additional invoices, or whether the vendor had to initiate any court proceeding.

The AG's answer: Mississippi law does not authorize the county to do so. Sections 19-13-23 and 19-13-31 set up a claims process that runs from the claimant to the county. A person with a claim against a county first files it with the clerk of the board of supervisors, dated and itemized, with supporting evidence. The board calls the claims docket, audits each claim, allows proper claims, rejects claims that are illegal and cannot be cured by amendment, and continues claims that are defective but salvageable. If the board rejects or refuses to act on a claim, the claimant (the vendor, not the county) may appeal to circuit court or bring suit against the county. Nothing in the statute authorizes the county to start the litigation.

Because Section 7-5-25 limits the AG to prospective questions of state law and the office does not validate or invalidate past actions, the AG declined to opine on whether the road manager's rental complied with the central purchasing requirements (Sections 31-7-101 et seq.). For informational purposes, the AG listed the purchasing statutes it found relevant: Sections 65-17-1(9), 65-7-95, and 31-7-13(b).

What this means for you

County attorneys facing unauthorized purchases

The opinion holds that the county cannot petition a court for authority to pay the invoice or initiate a court action to correct the failure. The claims process under Sections 19-13-23 and 19-13-31 is the route, and it begins with the claimant filing with the clerk of the board. If the board rejects the claim, the claimant's appeal is to circuit court or a direct suit.

Boards of supervisors

Under Section 19-13-31, the board calls the claims docket, audits each claim, and allows, rejects, or continues it. The AG quoted its earlier Sanders opinion that a board "must examine the evidence before it concerning the claim, make findings of fact, and reflect the same in the minutes."

Vendors who did extended or extra work for a county

For an invoice that exceeds the authorized purchase order, the opinion describes the path: file a claim with the clerk of the board under Section 19-13-23, dated and itemized with supporting evidence. If the board rejects or refuses to act, the claimant may appeal to circuit court or sue the county. The county is not authorized to start a court process on the vendor's behalf.

County road managers and finance officers

The opinion's facts involved a $600 purchase order for a one-week rental that grew to $7,272 in invoices after the equipment was returned months late, fees the board had not authorized. The opinion did not decide whether that complied with the purchasing laws; it declined that question as a past-action question outside its authority.

State Auditor staff and others reviewing the purchase

The AG declined to address whether the purchase complied with central purchasing law, calling that a past-action question outside Section 7-5-25. For informational purposes it identified the relevant purchasing statutes: Sections 31-7-101 et seq. (central purchasing), 31-7-13(b) (bidding for purchases over $5,000 but not over $75,000), 65-7-95 (board renting road machinery or equipment), and 65-17-1(9) (county road manager equipment leases).

Common questions

What is a Section 19-13-23 claim?
A written claim against the county filed with the clerk of the board of supervisors on or before the last day of the month for which it is payable. It must be dated and itemized and accompanied by evidence of performance or delivery as required by Section 19-13-25.

What does the board of supervisors do with the claim?
Under Section 19-13-31, the board calls the claims docket at each regular meeting, audits each claim, and either allows it, rejects or disallows it as illegal and not curable by amendment, or continues it for amendment or perfection.

What if the board rejects the claim?
The claimant may appeal to circuit court or bring suit against the county. Section 11-51-75 provides the procedure to appeal a board decision.

Why can't the county seek court authority on its own?
The opinion holds the claims statutes create a claimant-driven process and do not authorize the county to petition a court for authority to pay an invoice or to initiate an action to correct its failure to pay.

Did the AG decide whether this was an unlawful purchase?
No. The AG declined to opine on the county's compliance with central purchasing requirements, because the office does not validate or invalidate past actions and is limited to prospective questions of law under Section 7-5-25.

Background and statutory framework

Mississippi's central purchasing system, Section 31-7-101 et seq., sets the rules for county and municipal purchases. Section 31-7-13(b) imposes bidding requirements for purchases over $5,000 but not exceeding $75,000. Section 65-17-1(9) provides that a county road manager may lease equipment "in conformity with the budget, in accordance with the central purchase system and existing laws and subject to approval of the board as to price or rental." Section 65-7-95 sets requirements for the board to rent road machinery or equipment.

Section 19-13-23 lays out the claim-filing process, requiring the claim to be filed with the clerk of the board on or before the last day of the month for which it is payable. Section 19-13-31(1) describes the board's duty to call the claims docket at each regular meeting, audit the claims, and allow, reject, or continue them, and provides the claimant's appeal route to circuit court or direct suit if the board rejects the claim. In processing vendor claims, the board is also subject to Sections 31-7-301, 31-7-305, 31-7-309, 31-7-311, and 31-7-313.

The opinion's structural point is that the claims process is unidirectional: claimant to county, with appeal rights for the claimant. There is no statutory mechanism for the county to take the initiative.

Citations

• Miss. Code Ann. § 7-5-25 (AG opinions limited to prospective questions of state law)
• Miss. Code Ann. § 11-51-75 (procedure to appeal a board judgment or decision)
• Miss. Code Ann. § 19-13-23 (claim-filing requirements with clerk of board)
• Miss. Code Ann. § 19-13-25 (evidence of performance or delivery)
• Miss. Code Ann. § 19-13-31 (board claims-docket procedure and appeal rights)
• Miss. Code Ann. § 19-13-31(1) (allowance, rejection, or continuation of claims; claimant appeal rights)
• Miss. Code Ann. § 31-7-13(b) (bidding for purchases over $5,000 but not over $75,000)
• Miss. Code Ann. § 31-7-101 (central purchasing requirements, et seq.)
• Miss. Code Ann. §§ 31-7-301, 31-7-305, 31-7-309, 31-7-311, 31-7-313 (vendor claim processing provisions)
• Miss. Code Ann. § 65-7-95 (board renting road machinery or equipment)
• Miss. Code Ann. § 65-17-1(9) (county road manager equipment leases)
• MS AG Op., Brock (Nov. 8, 2019) (AG declines to validate or invalidate past actions)
• MS AG Op., Sanders (Oct. 18, 2013) (board of supervisors must make findings of fact reflected in minutes)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/06/S.Morris-Harris-June-29-2023-Unauthorized-Purchase.pdf

Original opinion text

June 29, 2023
Stephanie N. Morris-Harris, Esq.
Attorney, Bolivar County Board of Supervisors
Post Office Box 698
Cleveland, Mississippi 38732
Re:

Unauthorized Purchase

Dear Ms. Morris-Harris:
The Office of the Attorney General has received your request for an official opinion.
Background
According to your request, the Bolivar County ("County") Road Manager secured a $600 purchase
order for the one-week rental of certain equipment in September 2022. However, the equipment
was not returned to the rental company until January 2023, resulting in invoices to the County
totaling $7,272. The additional rental fees incurred for the rental of the equipment were not
authorized by the Bolivar County Board of Supervisors ("Board"), and thus, according to your
request, violate the relevant purchase laws.
Questions Presented

1. May Bolivar County petition a court of competent jurisdiction for authority to pay the
   additional invoices, or must the court proceeding be initiated by the vendor?
2. Is there any authority under which Bolivar County may initiate an action in court to correct
   the error/failure and pay the vendor?
   Brief Response
   Mississippi Code Annotated Sections 19-13-23 and 19-13-31 provide the statutory scheme for
   persons having claims against a county. Under this scheme, a person must first file a claim with
   the clerk of the board of supervisors. If the board of supervisors rejects or refuses the claim, the
   claimant may appeal to the circuit court or may bring suit against the county.

Applicable Law and Discussion
As an initial matter, opinions of this office are limited to prospective questions of state law. Miss.
Code Ann. § 7-5-25. This office does not validate or invalidate past actions. Therefore, to the
extent your request deals with the County's compliance with the central purchasing requirements
established in Sections 31-7-101 et seq., this office must decline to respond with an official
opinion. MS AG Op., Brock (Nov. 8, 2019). However, for informational purposes only, we find
the following purchasing laws relevant to your described circumstances: Section 65-17-1(9)
(providing county road manager may lease equipment "as may be necessary for operation of the
county road department in conformity with the budget, in accordance with the central purchase
system and existing laws and subject to approval of the board as to price or rental"); Section 65-7-95 (providing requirements for board of supervisors to rent road machinery or equipment); and
Section 31-7-13(b) (providing bidding requirement and procedure for purchases over $5,000 but
not over $75,000).
Regarding the County's ability to seek court authority or initiate a court action to pay the subject
invoices, it is the opinion of this office that Mississippi law does not authorize the County to do
so. Section 19-13-23 sets forth how claimants must submit claims against counties. It provides:
Any person having a just claim against any county shall first file the same on or
before the last day of the month for which such claim may be payable, with the
clerk of the board of supervisors for presentation to the board for allowance, which
said claim shall be properly dated and itemized, and shall be accompanied by any
evidence of performance or delivery as required by Section 19-13-25. The claimant
may amend said claim at any time before final rejection or allowance, and may
appear before the board and submit further evidence or argument in support thereof,
having a continuance for either or both of said purposes if desired.
Section 19-13-31(1) sets forth the requisite process once a claim has been submitted in accordance
with Section 19-13-23. Section 19-13-31(1) states, in pertinent part:
At each regular meeting of the board, the claims docket shall be called . . . . All
claims found by the board to be illegal, and which cannot be made legal by
amendment, shall be rejected or disallowed. All other claims shall be audited, and
all those found proper upon due proof shall be allowed in the order in which they
appear on the docket, whether or not there shall then be sufficient money in the
several funds on which warrants must be drawn for their payment. Those claims as
to which a continuance is requested by the claimant, and those found to be defective
but which might be perfected by amendment shall be continued.
...
If the board shall reject any such claim in whole or in part, or refuse, when requested
at a proper time, to pass finally thereon, the claimant may appeal to the circuit court,
or may bring suit against the county on such claim.

...
In processing claims of vendors the board of supervisors shall be subject to the
provisions of Sections 31-7-301, 31-7-305, 31-7-309, 31-7-311, and 31-7-313.
(Emphasis added).
In summary, once a claimant has properly filed a claim against the County in accordance with
Section 19-13-23, the Board shall then follow the procedures for the administration of claims set
out in Section 19-13-31. If the Board makes the factual determination that a claim can be made
legal by amendment, then it may be approved and allowed. However, if the Board makes the
factual determination that a claim is "illegal, and . . . cannot be made legal by amendment," it
"shall be rejected or disallowed." Miss. Code Ann. § 19-13-31(1). Beyond this, to be allowed,
claims must be audited and determined proper upon due proof. Id.; see also MS AG Op., Sanders
at *2 (Oct. 18, 2013) (opining that a county board of supervisors "must examine the evidence
before it concerning the claim . . . make findings of fact, and reflect the same in the minutes"). If
a claim is rejected or refused by the Board pursuant to Section 19-13-31, the claimant must appeal
to the circuit court or bring suit against the County. Miss. Code Ann. § 19-13-31(1); see also Miss.
Code Ann. § 11-51-75 (providing procedure to appeal a judgment or decision of the board of
supervisors of a county).
It is thus the opinion of this office that Sections 19-13-23 and 19-13-31 do not authorize the County
to petition a court of competent jurisdiction for authority to pay an invoice, nor do they authorize
the County to initiate an action in court to correct the County's failure to pay an invoice.
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/ Maggie Kate Bobo
Maggie Kate Bobo
Special Assistant Attorney General