State and Local Legal Blog

What if…?

June 26, 2009
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This same entity with which I am familiar, did a really funny thing for several meetings in a row.  It approved the minutes of, for example, the minutes of the meeting of May 2 on May 2!  Now what about that?

The citizen who suggested that “there is no evidence that the [entity] is failing to do its job, that there is financial mismanagement, or anything else….” finds that acceptable.

I do not.  Minutes cannot be approved as they are taken.  They must be considered subsequently.  Thus minutes which were approved on the same date that the meeting occurred were simply meetings in which no action was taken because the minutes were never considered and approved.  To me, that is an entity that is failing to do its job.

Is it a stupid mistake?  Yes-sir-ree!  And doesn’t that make it more heinous?  That people who sought public responsibility do not care enough to do the job correctly?

I rest my case.


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Individual Liability under these Facts?

June 25, 2009
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Suppose a job description is “approved” and an individual is “hired” who meets that description?  And further suppose that there is no mention of the presence or absence of entity members, that there is a motion to “approve” the job description, and a “second” but no vote is reflected in the minutes, and the same applies to the “hiring” of the individual for the job so described.  Suppose, again, that in addition to these regularities, the minutes are never approved in subsequent minutes, or the actions otherwise ratified, and the minutes are not signed.  Was a job created?  Was an individual hired?  And if an individual was paid out of the budget of the entity for a period of years, are the individuals who could not follow the law individually liable?

Or how about this:  “Bids were discussed for the renovation of X, and it was agreed to accept the bid from X.”  Irregularities in this minute were as follows:  (1) no adequate list of those present and absent; (2) no approval of the minutes in subsequent meetings; (3) no signed minutes available; (4) no reflection of the contents of the bid — work to be done, amount of bid, copy of bid appended to minutes, or any reflection that the bid accepted was the lowest and best bid and, if not, why it was a legally viable selection.  Was a bid accepted?  Should a job (renovation) be accomplished?  And if the bidder was paid out of the budget of the entity for the renovation, are the individuals who could not follow the law individually liable?

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More on Minutes

June 24, 2009
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Assuming that we can agree that the governmental entity that was discussed in yesterday’s blog is a governmental entity under the definitions established in MS Code Ann. Section 31-7-1 (1972) [which we can] then we can also agree that this entity is found by MS Code Ann. Section 25-41-11 (1972) [which establishes the requirements for minutes of the meeting of a public entity — the contents of which are reflected in the blog entries on 5/8/09 and 6/22/09].

So, when one looks at minutes of this entity and finds, for a particular date, that there are minutes which do not reflect the presence or absence of members, and are minutes that were never signed, and are minutes that are not reflected as approved in subsequent minutes of the entity, did the entity DO ANYTHING on that date?  Of course not!    One needs not criticize an entity for “…failing to do its job, or financial mismanagement, or anything else….” when, in fact, the entity has not DONE ANYTHING!  A governmental entity acts only through its minutes.  If the minutes do not comply with law, then the entity has not acted.

Is that bad?  Well, yes.  First, its bad because governmental entities are supposed to follow the law, and are supposed to be knowledgeable of the law.  An individual who seeks and obtains public office, either appointed or elected, is faced with the truism that ignorance of the law is no defense.  Second, its bad because there is individual liability for unlawful expenditures.  More on that tomorrow.

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Legal Requirements for Minutes

June 23, 2009
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Just to give you a bird’s eye view of the problem with minutes, when careful attention is not demanded, here is a scenario:

A citizen finds that a governmental entity which is under the jurisdiction of the Mississippi code does not conform to the statute.  The citizen writes a letter to the editor to indicate this error.  Another concerned citizen responds:  “…regardless of [the fact that the minutes do not conform to law] there is nothing in [citizen 1’s letter] to indicate that the [entity] is failing to do its job, that there is financial mismanagement, or anything else….”

While I do not expect citizen 1 or citizen 2 to be well versed in the law, citizen 1 was me, and citizen 2 didn’t seem to understand that an entity acts through its minutes, and if the minutes don’t follow the statute, then the entity has not acted.

Examples follow; tune in tomorrow.

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New Board Members – New Worries

June 22, 2009
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While you would think that folks who seek public office would be prepared when they receive the public trust, unfortunately that is not always the case.  While I have previously talked about minutes and what the state law requires in order for minutes to be valid, I am going to reprise the basics here:

The Mississippi Code requires that minutes be kept of all meetings of a public body, whether in open or executive session.  According to the statute, the minutes must include:

  1. a list of members present and absent;
  2. date, time and place of the meeting;
  3. an accurate recording of any final action taken at such a meeting;
  4. an accurate recording, by individual member, of any votes taken; and
  5. any other information that the public body requests be included or reflected by the minutes.

The statute requires the minutes to be recorded in a minute or docket book within a reasonable time not to exceed 30 days after the recess or adjournment of the meeting. Thereafter the minutes are open to the public for inspection.  (See State and Local Legal Blog, entry 5/8/09)

The legal requirements for minutes of governmental entities in Mississippi seem simple, don’t they?  Why is it that so many entities fail to conform to the legal requirements?  This week I’ll be talking about some of the worries about the adequacy of minutes.

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Mississippi History – settlements, territories and statehood

June 19, 2009
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The original Mississippi Territory created by the U.S. Congress in1798 was a strip of land extending about 100 miles north to south and from the Mississippi River to the Chattahoochee on the Georgia border. The territory was increased in 1804 and 1812 to reach from Tennessee to the Gulf. In 1817 the western part achieved statehood as Mississippi (the eastern part became the state of Alabama in 1819). Natchez, the first territorial capital, was replaced in 1802 by nearby Washington, which in turn was replaced by Jackson in 1822. This encouraged growth of the newly formed territory, because the river allowed Mississippi trading ships to sail to the Gulf of Mexico.

 In 1817, Congress divided the Mississippi Territory into the state of Mississippi and the Alabama Territory. On Dec. 10, 1817, Mississippi joined the Union and became the 20th state. Its population had almost reached 60,000 people.

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Mississippi History – settlements

June 18, 2009
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Hernando deSoto, a Spanish explorer, explored the Mississippi River basin and claimed it for Spain in 1540.  Approximately a decade later, Robert Cavalier, Sieur de la Salle, traveled down the Mississippi and claimed the entire area (including the state of Mississippi) for France, naming it Louisiana to honor King Louis XIV.

It was almost 20 years later that the first Europeans actually attempted to settle anywhere in Mississippi.  Pierre le Moyne d’Iberville established the first permanent settlement, Old Biloxi, near present-day Ocean Springs.  The French traveling with d’Iberville in 1699 saw Old Biloxi as a strategic location — with easy access for settlement and commercial value.  Additional French settlements soon followed including Fort Maurepas, Mobile, Biloxi, Fort Rosalie and New Orleans.  During the early 1700s, thousands of settlers moved to Mississippi.

When the Natchez rose up against the colonists in 1729, France rallied to destroy most of the Indian tribe the following year. In 1736, the Chickasaw and British soldiers defeated the French in northeast Mississippi. This led to the French and Indian War (1754-1763). The Treaty of Paris, signed after the war, gave England all the land east of the Mississippi River. Mississippi was divided into two main parts; the southern section to a British province called West Florida and the remaining portion to the Georgia colony.

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Mississippi History – the Natchez

June 17, 2009

The Natchez Indians were located on the southeast banks of the Mississippi River, near Natchez, controlling a large territory which included a series of communities with reconized social structures and government when la Salle made it to the southern Mississippi. According to la Salle, there were also Natchez holdings on the west side of the river.  The Natchez are famous in the anthropological literature on Southeastern Indians for their elaborate social and ceremonial system and for their use of platform mounds, both of which are key to their identity as the last example of the mound-building cultures that dominated the Mississippi Valley during late prehistoric times.

The Natchez were farmers, raising corn, beans, squash and other crops, including, from time to time, tobacco.  While the men engaged in hunting and fishing and the proceeds were used for feeding the tribe, these enterprises appear to be more the function of entertainment than necessity.

As the French began to settle along the banks of the Mississippi in the 1720s, the two societies lived in harmony for a period of time. Ultimately demands placed on land and other resources caused hostilities and ultimately a war between the French and the Natchez, with the French as the victors.  So few Natchez remained that they fled the area and sought refuge among the Chickasaws, Choctaws, Creeks and Cherokees, losing their identity as Natchez Indians.


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Mississippi History – the Choctaws

June 16, 2009
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Most Mississippians are more familiar with Choctaws than Chickasaws because the Mississippi Band of Choctaw Indians is a social and economic force in Mississippi.  While most of the Choctaws living in Mississippi in the early 1800s were forceably removed, some remained, ultimately forming the basis of the Mississippi Band.  After re-organizing in 1945, land in Neshoba and surrounding central Mississippi counties were set aside as a federal Indian Reservation. 

While Mississippians recognize the name “Dancing Rabbit”, few know what it relates to.  The Treaty of Dancing Rabbit Creek, a treaty between various Indian tribes, principally Choctaw, and the U. S. Government, was ratified by the U. S. Senate in February of 1831 and, President Andrew Jackson, known as a relentless Indian fighter, was anxious to make the implementation of the treaty the model of Indian removal.  The Choctaw nation was to emigrate to Oklahoma (“Indian Country”) in 3 different stages:  the fall of 1831, the fall of 1832, and the fall of 1833.  While the majority of Choctaws were relocated during the removal, as many as 5,000 Choctaws remained in Mississippi and continued to live in the heart of their ancient Mississippi homeland in east central Mississippi.

Not all Mississippians were happy that a number of Choctaws remained in the state and they were subject to harassment and intimidation.  They were held in contempt by many white Mississippians and treated accordingly.

During the great depression, the Roosevelt Administration became concerned with the rather dismal state of the Mississippi Choctaws, which had dwindled to about 1,500 in the midst of the depression.  During this period, John Collier, the U. S. Commissioner of Indian Affairs (now the Bureau of Indian Affairs) worked to allow the Mississippi Choctaws to legally reorganize and become the Mississippi Band of Choctaw Indians so that the group could have a more meaningful relationship with the federal government and recieve benefits to enhance their welfare.

When the tribal represenatives reorganized, the Secretary of the Interior set aside 18,000 acres of land in Mississippi to be held in trust for the Mississippi Band, including lands in Neshoba County and adjacent counties.  In 1945, Mississippi recognized 8 Choctaw communities, including Bogue Chitto, Bogue Homa, Conehatta, Crystal Ridge, Pearl River, Red Water, Tucker and Standing Pine.

Philip Martin, a World War II veteran, led the Choctaw nation in Mississippi, becoming its first Chief in 1977, a position he held until 2007.  Under the leadership of Chief Martin, the Mississippi Band of Choctaw Indians has become an economic and social force in the state. 

Interestingly, Choctaws are credited with the initiation of the “double weave” basket — a woven basket so tight that it will hold and store water.  The double weave is still performed by members of the Mississippi Band and is recognized as an object d art and collectable.



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Mississippi History – the Chickasaws

June 15, 2009
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What do we know about Mississippi history?  Maybe not a lot.  For example, what indiginous tribes populated Mississippi before the Spanish arrived?  Do you know?

The Chickasaws lived in the north and east of the state, the Choctaws in central Mississippi, and the Natchez in the western part of the state.

While the Choctaws are still among us and are, in the 21st century, a thriving economic and social community, the Chickasaws, whom many historians see as the “twin brother tribe” of the Choctaws, have relocated to Oklahoma.

From the Chickasaw migration to what is now Mississippi, Kentucky, Alabama and Tennessee in prehistoric times to the purchase of our new homeland in south-central Oklahoma in the mid 1800’s, the Chickasaw culture and heritage have always had roots in nature and the elements.  While located in the south, and on into the relocation, the Chickasaws maintained their proud history as fierce warriors, known as the “Unconquered and Unconquerable” Chickasaw Nation.

Revered in ancient times as “Spartans of the Lower Mississippi Valley,” the first Chickasaw contact with Europeans was with Hernando de Soto in 1540.  Living in sophisticated town sites, the Chickasaws possessed a highly developed ruling system complete with laws and religion.  They conducted a successful trade business with other tribes and with the French and English, and lived largely an agrarian lifestyle, but were quick to go to battle if necessary.  They allied with the English during the French and Indian War.  Some historians give the Chickasaws credit for the United States being an English-speaking country.

The Chickasaw people moved to Indian Territory during the “Great Removal,” on what was called the “Trail of Tears.”  Other tribes forced to relocate were the Cherokee, Choctaw, Creek and Seminole, called the “Five Civilized Tribes” because of their highly developed ruling systems.  The Chickasaws were one of the last to move.  In 1837, the Treaty of Doaksville called for the resettlement of the Chickasaws among the Choctaw tribe in Indian Territory.  In 1856, the Chickasaws, in order to restore direct authority over their governmental affairs, separated from the Choctaws and formed their own government.

Tribal leaders established the capital at Tishomingo, adopted a constitution and organized executive, legislative and judicial departments of government with the offices filled by popular election.  At the outbreak of the Civil War, the Chickasaws signed an alliance with the South and raised troops to fight with the Confederacy.  The respected Choctaw/Chickasaw Mounted Regiment, headquartered at Fort Washita, fought some of the last battles of the Civil War.  Although suffering hardships after the defeat of the Confederacy, the tribe regained prosperity.  Many Chickasaws became successful farmers and ranchers.  Chickasaws built some of the first schools, banks, and businesses in Indian Territory.

After Oklahoma statehood in 1907, the President of the United States appointed the principal officers of the Chickasaw Nation.  In 1970, Congress enacted legislation allowing the Five Civilized Tribes to elect their principle officers.  In 1983, a new Chickasaw constitution was adopted.

While some reminant of the original Chickasaw nation remains in Mississippi, there are only few Chickasaws counted as residents of Mississippi.  Nevertheless, the Chickasaw, together with the Choctaws, had established an effective social network of villages and community long before Mississippi was “discovered” by Europeans.

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