Does the Gulf Coast convention bureau have state-law authority to borrow, and did the AG decide its PPP eligibility?

Plain-English summary

When the federal Paycheck Protection Program rolled out in spring 2020 as part of the CARES Act response to COVID-19, many quasi-governmental entities asked whether they could participate. The Mississippi Gulf Coast Regional Convention and Visitors Bureau, a political subdivision created by special act of the Mississippi Legislature in 2013, was one of them. Its attorney asked the AG three questions: (1) does the CVB have express or implied authority to apply for a PPP loan; (2) does PPP loan forgiveness convert the loan to a grant; and (3) regardless of PPP eligibility, can the CVB borrow money for purposes consistent with its mission?

The AG began with a jurisdictional point: § 7-5-25 limits official AG opinions to Mississippi state law. It said it was "unable to respond by official opinion" to questions requiring an interpretation of the federal Paycheck Protection Program or the CVB's eligibility to participate.

What the AG could address was Mississippi law on the CVB's borrowing authority. The 2013 enabling act, Chapter 926 (House Bill 1716, Local and Private Laws), grants the CVB various powers but does not include authority to borrow money. The AG looked for implied authority by reference to the broad "powers necessary or convenient" language in Section 5(iv) and (v) of the act and concluded none was implied. Mississippi follows the express-and-necessarily-implied-powers doctrine for administrative agencies and quasi-governmental entities. Mississippi Milk Commission v. Winn-Dixie, 235 So. 2d 684 (Miss. 1970), holds that "any power sought to be exercised must be found within the four corners of the statute under which the agency proceeds."

The AG cited a 1995 opinion (MS AG Op., Glover) addressing a parallel question about the Meridian/Lauderdale County Partnership. The Partnership's enabling act allowed it to "request" the governing authority to borrow on its behalf, but did not give the Partnership itself the power to borrow. The AG had concluded the Partnership had no express or implied borrowing power. The same logic applied to the Gulf Coast CVB: no express borrowing authority, and the general "powers necessary or convenient" clause does not necessarily imply borrowing.

The opinion's conclusion is confined to the state-law borrowing question: "the CVB has neither the express nor the implied authority to borrow money." It does not apply that conclusion to a particular PPP transaction or decide whether a forgivable PPP advance is a loan or a grant.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

The Mississippi Gulf Coast Regional Convention and Visitors Bureau is a creature of state legislative action. Chapter 926 of the 2013 Local and Private Laws (House Bill 1716) created the CVB as a political subdivision composed of commissioners appointed from Hancock, Harrison, and Jackson Counties. The opinion describes its work as promoting and managing conventions.

Like other state-created political subdivisions, the CVB has only those powers granted by its enabling statute or necessarily implied. The relevant grants are in Section 5 of House Bill 1716:

(iv) To have and exercise all powers necessary or convenient to effect any and all of the purposes for which the commission is organized, and further, to appoint and employ individuals and agencies acting in its behalf for any and all of the aforementioned powers and responsibilities;

(v) To have and exercise all powers necessary and convenient to conduct the business of promoting and managing conventions and to carry out the purposes of the convention staff of the Mississippi Coast Coliseum Commission by agreement between the commission and the bureau.

These clauses do not specifically mention borrowing. The question is whether the enabling act necessarily implies borrowing authority.

The AG said no. The Glover opinion (December 20, 1995) is directly on point: a similar enabling statute for the Meridian/Lauderdale Partnership, with a clause for powers "incidental thereto or necessary for the performance of those" stated, did not give the Partnership implied borrowing power even though that act let the Partnership "request" the county to borrow on its behalf.

The Mississippi Supreme Court's reasoning in Mississippi Milk Commission v. Winn-Dixie is the foundational rule:

No proposition of law is better established than that administrative agencies have only such powers as are expressly granted to them or necessarily implied and any power sought to be exercised must be found within the four corners of the statute under which the agency proceeds.

That doctrine governs both administrative agencies and political subdivisions like the CVB. The four-corners test means the legislature must speak; courts and the AG do not fill in unstated powers, even useful ones.

The AG left the federal CARES Act and PPP questions unanswered. Its conclusion that the CVB lacks borrowing authority under its enabling act does not resolve the separate eligibility and loan-forgiveness questions stated in the request.

Common questions

Q: Why couldn't the AG say whether the CVB qualified for a PPP loan?
A: Under § 7-5-25, official AG opinions are limited to interpretations of Mississippi state law. The AG declined to interpret the federal PPP or decide the CVB's eligibility or the effect of loan forgiveness.

Q: Where does the CVB get its powers?
A: From its enabling legislation, Chapter 926 / House Bill 1716 of the 2013 Local and Private Laws. As an entity created by the Legislature, the CVB has only the powers expressly granted to it plus those necessarily implied.

Q: Did the "powers necessary or convenient" clause in Section 5 imply a power to borrow?
A: No. The AG read Section 5(iv) and (v) as not implying a borrowing power. It applied the four-corners rule from Mississippi Milk Commission v. Winn-Dixie and pointed to the Glover opinion, which had reached the same result for a similarly worded enabling act.

Q: What is the "four corners" rule the AG relied on?
A: From Winn-Dixie: an agency has only the powers expressly granted or necessarily implied, and any power exercised "must be found within the four corners of the statute under which the agency proceeds." The AG found no express or implied borrowing authority in House Bill 1716.

Citations and references

Statutes:

• Miss. Code Ann. § 7-5-25 (Limits AG opinions to state law)
• Chapter 926, House Bill 1716, Local and Private Laws of 2013 (CVB enabling act)
• Senate Bill 3177, Local and Private Laws of Mississippi 1991 (referenced for Meridian/Lauderdale Partnership)

Cases:

• Mississippi Milk Commission v. Winn-Dixie, 235 So. 2d 684 (Miss. 1970)
• Golding v. Salter, 107 So. 2d 348 (Miss. 1958)

Prior AG opinions:

• MS AG Op., Glover (December 20, 1995)
• MS AG Op., Montgomery (August 29, 1990)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2020/07/H.Keating_June-5-2020-Authority-of-CVB-to-borrow-money.pdf

Original opinion text

June 5, 2020

Hugh D. Keating, Esq.
Attorney for Mississippi Gulf Coast
Regional Convention and Visitors Bureau
2909 13th Street, 6th Floor
Gulfport, Mississippi 39501

Re: Authority of CVB to borrow money

Dear Mr. Keating:

The Office of the Attorney General is in receipt of your request for the issuance of an official opinion.

Questions Presented

Does Mississippi Gulf Coast Regional Convention and Visitors Bureau ("the CVB") have the authority pursuant to its enabling legislation to apply for loan assistance and borrow funds under the Paycheck Protection Program Guarantee included in the CARES Act, if the CVB is determined to be eligible to participate in such program?

Does the forgiveness of a loan under the Paycheck Protection Program Guarantee included in the CARES Act convert the loan to a grant?

Regardless of whether the CVB is eligible to participate in the Paycheck Protection Program Guarantee program, does the CVB's enabling legislation necessarily imply that it has the power and authority to borrow funds for uses consistent with the purpose and mission of the CVB?

Background Facts

The CVB is a political subdivision of the State of Mississippi consisting of commissioners appointed from Hancock, Harrison, and Jackson Counties. Chapter 926, House Bill 1716, Local and Private Laws of 2013 is the enabling legislation for the CVB.

Brief Response

The Attorney General is unable to respond by official opinion to your questions based upon an interpretation of the Paycheck Protection Program Guarantee included within the federal CARES Act or the eligibility of the CVB to participate therein. Official written opinions issued pursuant to Miss. Code Ann. Section 7-5-25 are limited to interpretations of Mississippi state law.

The enabling legislation for the CVB does not provide it with either the express or the implied authority to borrow money.

Applicable Law and Discussion

Agencies and other entities created by the Legislature have only those powers expressly provided by the Legislature and such other powers that are necessarily implied. MS AG Op., Montgomery (August 29, 1990) citing Golding v. Salter, 107 So. 2d 348 (Miss. 1958). Chapter 926, House Bill 1716, Local and Private Laws of 2013 grants no specific authority to the CVB to borrow money for uses consistent with its purpose and mission or otherwise.

Your request, however, acknowledges the absence of express authority and asks if the CVB has implied authority to borrow money pursuant to Section 5 of its enabling legislation, which states, in relevant part, as follows:

> *
>
> (iv) To have and exercise all powers necessary or convenient to effect any and all of the purposes for which the commission is organized, and further, to appoint and employ individuals and agencies acting in its behalf for any and all of the aforementioned powers and responsibilities;
>
> (v) To have and exercise all powers necessary and convenient to conduct the business of promoting and managing conventions and to carry out the purposes of the convention staff of the Mississippi Coast Coliseum Commission by agreement between the commission and the bureau.
>
> ***

A similar question was asked by the Honorable Wingfield Glover, Jr. regarding the authority of the Meridian/Lauderdale County Partnership ("the Partnership"), formed by Senate Bill 3177, Local and Private Laws of Mississippi 1991. While acknowledging the absence of specific power to borrow money, Mr. Glover believed the enabling legislation granted the Partnership the implied authority pursuant to Senate Bill 3177, Section 4, which provided, in pertinent part:

> (1) The partnership is hereby granted the following powers, together with all powers incidental thereto or necessary for the performance of those hereinafter stated, in order to effectuate the purposes of this act:
>
> *
>
> (d) To request the governing authorities and/or the board of supervisors of the county to borrow money and issue negotiable promissory notes evidencing the same under the provisions of Sections 5 through 11 of this act, and, in addition thereto or in lieu of the pledges authorized in Section 11 of this act, to secure such notes by the execution of deeds of trusts and mortgages upon any real estate belonging to The Partnership.
>
> ***

Based upon the enabling legislation, this office opined that, the Partnership, in and of itself, did not have the power to borrow money, neither expressly nor "incidentally." MS AG Op., Glover (December 20, 1995).

The Mississippi Supreme Court in Mississippi Milk Commission v. Winn-Dixie, 235 So. 2d 684, 688 (Miss. 1970), made the following statement:

> No proposition of law is better established than that administrative agencies have only such powers as are expressly granted to them or necessarily implied and any power sought to be exercised must be found within the four corners of the statute under which the agency proceeds. American Brass Co. v. Wisconsin State Board of Health, 245 Wis. 440, 15 N. W. 2d 27 (1944). Being a creature of the legislature, the Mississippi Commission is an agency with powers limited to those described in the statutes concerning it and when the statute is clear and unambiguous, the Court must apply the statute as written without the addition or deletion of any provision. The rule, therefore, is that an administrative agency is authorized to act only when and in the manner so provided by the legislature through the appropriate statutes. Crosby v. Barr, 198 So. 2d 571 (Miss. 1967); L. & A. Constr. Co. v. McCharen, 198 So.2d 240, cert. den. 389 U. S. 945, 88 S. Ct. 310, 19 L. Ed. 2d 301 (Miss. 1967); South Mississippi Airways v. Chicago & Southern Airlines, 200 Miss. 329, 26 So. 2d 455 (1946); Edgerton v. Int'l Co., 89 So. 2d 488 (Fla. 1956).

It is the opinion of this office that the CVB has neither the express nor the implied authority to borrow money.

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