Can a Mississippi county use county equipment, labor, and materials to help a private water association with drainage repairs?

Plain-English summary

Bolivar County asked whether it could send county crews and county equipment to help a private water association deal with drainage problems on the association's property.

The default answer is no. Mississippi's county home rule statute, Section 19-3-40, gives the board of supervisors broad power to manage county affairs, but it expressly forbids using public funds, equipment, supplies, or materials for any private purpose. The AG had previously applied that bar to a county that wanted to spread gravel on a private driveway leading to a private water association's tank, and to a county that wanted to connect a public utility to a private water company's lines without consideration.

But there is a narrow exception in Section 19-5-92.1. A county may provide labor, materials, and supplies to clean or clear drainage ditches, creeks, channels, or conduits, both natural and man-made, and to prevent erosion of those features, even when they sit on private property. Two conditions: the board has to find that the work is necessary to promote public health, safety, and welfare, and that finding has to be spread on the board's minutes.

So whether Bolivar County can help with the water association's drainage problem depends on (1) whether the work is properly characterized as cleaning, clearing, or erosion-prevention of a ditch, creek, channel, or conduit, and (2) whether the board makes the public-purpose finding on its minutes. The AG would not pre-decide either of those points. They are factual decisions for the board to make.

What this means for you

For county boards of supervisors weighing requests for in-kind help

The opinion holds that counties are generally prohibited from using public funds, equipment, and supplies for private purposes, which would include providing in-kind services to a private water association. The one exception it identifies is Section 19-5-92.1: the county may provide labor, materials, and supplies to clean or clear drainage ditches, creeks, channels, or conduits (natural or man-made) and to prevent erosion, on private property, if the board determines the work is necessary to promote the public health, safety, and welfare of county residents. The opinion says whether that exception applies is a determination for the county, to be spread upon the board's minutes.

For county attorneys advising the board

The opinion frames the question as whether a specific statutory exception authorizes the in-kind work. Absent an applicable exception, it concludes the county is prohibited from providing in-kind services to a private water association. The only exception it points to is Section 19-5-92.1, and the opinion treats application of that exception as a factual determination outside the scope of an official opinion.

For private water associations

For a private water association, the opinion means the county generally cannot provide in-kind services to it. The only path the opinion identifies is Section 19-5-92.1's drainage-ditch exception, and only if the board makes the required public-health-safety-and-welfare determination and records it on its minutes. The opinion does not decide whether any particular project qualifies.

For citizens watching county spending

The opinion holds that county use of public funds, equipment, and supplies for a private purpose is generally prohibited under Section 19-3-40, with the Section 19-5-92.1 drainage-ditch exception available only when the board makes and records the public-purpose determination on its minutes.

Common questions

Can a county send its equipment and crews to help a private water association?
Generally no. The opinion concludes counties are prohibited from using public funds, equipment, and supplies for private purposes, which includes in-kind services to a private water association, unless a statutory exception applies.

Is there any exception?
Yes. Section 19-5-92.1 lets a county provide labor, materials, and supplies to clean or clear drainage ditches, creeks, channels, or conduits (natural or man-made) and to prevent erosion of them, on private property, if the board determines the work is necessary to promote the public health, safety, and welfare of county residents.

Did the AG decide whether Bolivar County's project qualifies?
No. The opinion says whether the exception applies is a determination for the county to make, spread upon the board's minutes, and is outside the scope of the opinion.

Can the county donate cash to a private water association?
No. The Section 19-5-92.1 exception is limited to labor, materials, and supplies for drainage-ditch work; the general bar in Section 19-3-40 forbids using public funds for private purposes.

Background and statutory framework

Section 19-3-40 is Mississippi's county home rule statute. It empowers boards of supervisors to adopt orders and ordinances on county affairs, property, and finances when no specific statute already governs and the action is not inconsistent with the constitution or other state law. The statute then carves out one absolute restriction: county boards may not use public funds, equipment, supplies, or materials for any private purpose.

Earlier AG opinions read that restriction as broadly applicable. In MS AG Op., Chamberlin (Jan. 10, 2003), the AG concluded a county could not use county-owned equipment and materials to gravel a private drive leading to a private water association tank. In MS AG Op., Dulaney (Mar. 15, 2007), the AG concluded a public utility could not connect its water lines to a private utility's lines for the private utility's benefit without adequate consideration.

Section 19-5-92.1 is a narrow exception. It lets a county provide labor, materials, and supplies to clean or clear drainage ditches, creeks, channels, or conduits (natural or man-made) and to prevent erosion of those features, even on private property, if the board determines the work is necessary to promote public health, safety, and welfare of county residents. The opinion treats the determination as one for the board to make, spread upon its minutes, and says whether the exception applies in this situation is outside the scope of the opinion.

Citations

• Miss. Code Ann. § 19-3-40 (county home rule and bar on private-purpose use)
• Miss. Code Ann. § 19-5-92.1 (drainage ditch exception)
• MS AG Op., Chamberlin (Jan. 10, 2003) (no county equipment/materials for private drive to water association tank)
• MS AG Op., Dulaney (Mar. 15, 2007) (no public-utility hookup to private utility lines without consideration)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2025/01/S.-Morris-Harris-January-30-2025-Donations-to-Private-Water-Association.pdf

Original opinion text

January 30, 2025

Stephanie Morris-Harris, Esq.
Attorney, Bolivar County
P.O. Box 698
Cleveland, Mississippi 38732

Re: Donations to Private Water Association

Dear Ms. Morris-Harris:

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

Questions Presented

Does Bolivar County ("County") have the authority to provide in-kind services, such as the use of county equipment, labor, and materials to a private water association to assist with certain drainage issues and repairs?

Brief Response

Generally, counties are prohibited from using public funds, equipment, and supplies for private purposes, which would include providing in-kind services to a private water association. However, counties are allowed to "provide labor, materials, and supplies to clean or clear drainage ditches, creeks or channels or conduits, both natural and man-made and to prevent erosion of such ditches, creeks or channels" in accordance with Mississippi Code Annotated Section 19-5-92.1. Whether this exception applies to your situation is a determination for the County to make and should be spread upon the minutes of the board of supervisors.

Applicable Law and Discussion

The county home rule statute, Section 19-3-40, gives the board of supervisors "the power to adopt any orders, resolutions or ordinances with respect to county affairs, property and finances, for which no specific provision has been made by general law and which are not inconsistent with the Mississippi Constitution, the Mississippi Code of 1972, or any other statute or law of the State of Mississippi." The home rule statute further provides that "[t]his section shall not authorize the board of supervisors of a county to. . . . use any public funds, equipment, supplies or materials for any private purpose." Id. at (3). This office has previously opined that a county had "no authority to use county-owned equipment and materials to place gravel on a private drive leading to a local, private water association tank." MS AG Op., Chamberlin at 1 (Jan. 10, 2003); see also MS AG Op., Dulaney at 1 (Mar. 15, 2007) (opining that Section 19-3-40 prohibits a public utility from connecting its water lines to a privately owned utility company's water lines for the benefit of the private company without adequate consideration).

Section 19-5-92.1, however, provides one exception allowing a county to provide labor, materials, and supplies for work to a private entity. This section grants a county the discretion to "provid[e] labor, materials, and supplies to clean or clear drainage ditches, creeks or channels or conduits, both natural and man-made and to prevent erosion of such ditches, creeks or channels" on private property if the board determines "that such work and/or expenses are necessary in order to promote the public health, safety and welfare of the citizens of the county." Id. Whether this exception applies in your situation is a determination to be made by the County and is outside the scope of this opinion. Absent an applicable statutory exception, the County is prohibited from providing in-kind services to a private water association.

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