State and Local Legal Blog

Affirmative Defenses to a Lawsuit

May 7, 2010
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The City of Jackson has had to learn the hard way this week.  The Mississippi Supreme Court denied the City the opportunity to claim affirmative defenses in a lawsuit where the facts of the case indicated that the lawsuit had been going on for 26 months and the City had been actively involved in the litigation and defense of the lawsuit, but neglected to plead additional (relevant and meritorious) affirmative defenses until 26 months after it had filed its original answer.

The case is Homer Hutzel v. City of Jackson, NO. 2008-CA-02134-SCT (5/6/2010) and can be retrieved from the Court’s website at http://www.mssc.state.ms.us/Images/Opinions/CO63083.pdf.

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Posted in municipalities

Boards and Commissions

May 28, 2009
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The Mississippi Code authorizes municipalities to establish various boards and commissions.  The list of boards and commissions that a municipality is authorized to establish include the following:

  • municipal school boards
  • parks and recreation commissions
  • public utilities commissions
  • municipal port authorities
  • hospital commissions
  • library boards or commissions
  • civil service commissions
  • municipal employees’ retirement/disability boards
  • elections commissions
  • planning and zoning commissions
  • board of adjustments and appeals
  • public housing authority
  • public health authority

Obviously, not every municipality will have every type of board or commission.  For example, not every municipality has a port; thus a municipality without a port will not need a port authority.  However, the utilization of boards and commissions, if well staffed and appointed with intelligent, interested and energetic individuals, can afford great assistance to municipal government.


Attorney General’s Opinions

May 27, 2009
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If you are new to Mississippi municipal government, you may hear comments about “getting an Attorney General’s opinion”.  What does that mean?

The Attorney General of Mississippi and his staff “shall give his opinion in writing, without fee” at the request of the mayor or council or board of aldermen of any municipality of the state, when requested in writing, upon any question of law relating to their respective offices.  The authority for Attorney General’s opinions is found in Mississippi Code section 7-5-25.

With all due respect to the current Attorney General and Attorneys General past and future, an Attorney General’s opinion may not be right. Remember that Attorneys General are, after all, lawyers who have been elected to political office.  They become, upon election, the supreme civil law enforcement authority in the state, but sometimes even they get it wrong.

However, an Attorney General’s Opinion is valuable because if the municipality seeks a written opinion, receives one, and follows it, even if a court ultimately declares that opinion to be patently incorrect, there will be insulation from civil liability if the municipality has relied on the opinion and acted consistently therewith.

There are several caveats about Attorney General’s Opinions:

  • They must be prospective in nature.
  • Interpretations of current city ordinances are “best left to local authorities.”
  • Be careful what you ask for….

Past Attorney General’s Opinions are available for perusal on the Attorney General’s website and are also available on Lexis-Nexis and Westlaw, as well as in the annotations of state statutes about which they refer.  It is often instructive to look for existing Attorney General’s opinions on various subjects that may confront your municipality.


Open Meetings Act

May 26, 2009
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The Mississippi Open Meetings Act applies to all governmental entities in Mississippi, including municipalities.  The Act requires all matters to be entertained in meetings open to the public, unless (1) the governmental representatives determine to go into executive session and (2)  the reason expressed for the executive session is a valid one, recognized by statute.

The governing board of the municipality must vote to go into executive session.  A simple majority in favor of the executive session is required.

Reasons to go into executive session which are recognized by the statute are as follows:

  • discussion of personnel matters relating to personnel performance, character, competence or physical or mental health
  • discussion or negotiations with respect to pending or potential litigation
  • transaction of business regarding security personnel or devices
  • investigative proceedings regarding allegations or misconduct or violations of law
  • cases of extraordinary emergency which could cause harm or damage to persons or property
  • discussions related to prospective purchase, sale or leasing of lands
  • discussions relating to the relocation, location or expansion of an industry.

While municipalities may go into executive session for one of these reasons, there is no requirement that the municipality’s governing body go into executive session for these reasons.  Business relating to these items can be dealt with in open session if the municipality so desires.


Requirements of a Municipality

May 22, 2009
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So you want to turn your community into a municipality? Well, to do so there are several requirements that must be met.  They are:

(1) one square mile of territory

(2) population of at least 300

(3) at least one mile of hard surface streets existing or under construction

(4)  at least six streets which are hard surface streets

(5)  a public utilities water system, existing or under construction

(6)  a Chancellor’s approval of the petition for incorporation.

If there are any municipalities within 3 miles of the area contained in the petition for incorporation, these municipalities must be served with process and named in the  incorporation proceeding.

A word to the wise:  if you are thinking about incorporating your community, find an attorney who is experienced in municipal incorporation and annexation.  The Stennis Institute can help you find a source for recommendations.


Considering What We’ve Learned

May 20, 2009
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So, now that you know a little more about the major municipal forms of government in Mississippi, what if you prefer another form and want to change?  Well, it can be done.  Here’s what it takes:

All it takes an election.  Either at a general election, or at a special municipal election for this purpose, a municipality can determine to change its form of government from one to another.

There are some exceptions to the “all it takes is an election” answer.  When a city wants to move to a mayor/council form, a petition attesting to the desire for the change in government signed by at least 10% of the qualified electors (20% in municipalities of less than 40,000 in population) must be submitted in order to hold an election.

When a city wants to move to a code charter, if the election fails, then it cannot be considered again for a period of 4 years.

When a city wants to move to a mayor council or council/manager form but the election fails, then this cannot be reconsidered for at least 2 years.

Normally, “it takes a village” to change the form of government.  It is a big job because of (1) suspicion of new things, (2) conspiracy theories, and (3) apathy.  An organized form of education is often required to entice voters to even consider a change.


Deadlock in the Council/Manager Form

May 19, 2009
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Did you wonder why I suggested that there would be a deadlock in the council/manager form of government because the council has 6 members, a mayor and 5 councilmen?  That’s because the mayor in this form of government is a “ceremonial head”.  He or she serves as “president” of the council, and has a vote, but he or she has no veto power.  So if he or she is good with parliamentary procedure, then he or she may be able to manipulate actions of the council more than a not so able “president” but the fact is that his or her vote is a vote is a vote.  Which leaves us with 6 votes and, as experience has taught us, often the 3-3 ties.


Council/Manager Form of Government

May 18, 2009
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The Council/Manager form of government is the least used form of government in Mississippi, although it is the most used form of government of all United States municipalities.  It seeks to separate the political process from the process of public admnistration by vesting the political power within the council but leaving administrative control to the professional city manager.

In the Council/Manager form of municipal government, the 6 member council (the mayor and 5 council members) have the legislative, executive and judicial authority vested by statute, but cedes administrative control to the city manager.  In this form of government, only the mayor and council are elected.   The council appoints the manager, the attorney, auditor, Municipal Judge and city clerk/treasurer.  The City manager appoints all other city employees.

One of the reasons that so few cities use the council/manager form of government in Mississippi (5 or 6 at last count) is that the manager gets to do a lot of things that the council members WANT to do.  For example, the council cedes appointment of all but 5 city positions to the manager.  (What’s the use of getting elected if you can’t hire your friends, right?)  In fact, the city employees (except for those 5) work for the manager, answer to him or her, and can’t direct the manager to do anything regarding appointment or removal of employees except for those 5.

The manager, however, acts as the chief administrative officer of the municipality, must be a full time employee of the city, serves for a term fixed by the council which cannot exceed 4 years, although reappointment can be indefinite, and, generally speaking, can be removed at any time by a majority vote of the council.  What does the manager do?  You name it:  if the city needs it to be done, the manager does it.  Management, enforcement, budgeting, HR, negotiates contracts, and makes purchases subject to council approval.  Which is probably why so few municipalities in Mississippi choose this form of government.

This form of government has been heavily recommended by policy analysts and pundits and public administration gurus because of the effective distinction that is created between “politics” and “policy”.  There are a couple of down-sides, too.  One is that the council is made of the mayor and 5 councilmen, and that makes 6 people voting — sure to deadlock more often than not.  Also, if the council is comfortable with the manager, the members may choose to rely on him or her too much.  But remember, the council members are on the line for personal responsibility for their actions or assent to the manager’s actions.


Posted in municipalities

Code Charter Form of Municipal Government

May 15, 2009
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The code charter form of municipal government in Mississippi is the form of government for the vast majority of Mississippi towns and cities.  It is also known as the weak-mayor form of government because this describes the relationship between the mayor and board.  A code charter municipality elects a major and either 5 or 7 aldermen, depending on population.  The statute requires that the municipality have a chief of police, a tax collector and tax assessor (which may be one individual), a town clerk and a street commissioner.  These positions can be held by appointment or election at the option of the charter.  In the majority of municipalities, these positions are appointed.

Want to know more about Mississippi municipal goverment?  Come on back Monday….


Mayor/Council Form of Municipal Government

May 14, 2009
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If you live in Bay St. Louis, Biloxi, Gulfport, Greenwood, Hattiesburg, Jackson, Laurel or Tupelo you live in a municipality with a mayor/council form of government.  Often referred to as a strong-mayor form of government, the majority of the larger cities within Mississippi utilize a mayor/council form of government.  This form of government effectively separates administrative (executive) authority from legislative authority.  The mayor is tasked with all administrative responsibilities and authority; the council is tasked with the legislative responsibility and authority.  The mayor is elected from the municipality at large, while the council is elected from wards.  [Cities may also opt to have at large aldermen; the number of aldermen, both representing wards and at large, are governed by statute based on population].

Want to know more about the mayor/council form of government — for example — who can do what?  Stay tuned…


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