Can a Mississippi community college spend public funds on PPE for students and employees without violating the constitutional ban on donations?

Plain-English summary

The attorney for East Central Community College's Board of Trustees asked whether the college could buy and provide personal protective equipment (PPE) to its students and employees without running afoul of Section 66 of the Mississippi Constitution. The question was whether that purchase would be an unlawful donation under Section 66 of the Mississippi Constitution.

The AG gave a conditional answer: if the Board determines PPE is necessary to achieve a statutory purpose and not solely for the benefit of individual students and employees, the college may provide it. The opinion quotes § 37-29-67 on the trustees' power to operate the district and ensure educational opportunities. It says an expenditure meeting that condition is authorized under § 37-29-76 even if students and employees receive incidental benefits.

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 opinion addresses whether the proposed PPE purchase would violate Section 66 of the Mississippi Constitution. It cites an earlier AG opinion, Brown, for the rule that an expenditure for a public or authorized purpose, rather than solely for private individuals, is not an unlawful donation even when individuals benefit incidentally.

That rule does not decide the factual purpose of this purchase. The Board must determine whether providing PPE is necessary to achieve a statutory purpose and whether it is for more than the sole benefit of individual students and employees.

For community colleges, the authorizing statute is § 37-29-67, which gives the trustees "full power to do all things necessary to the successful operation of the district and the college or colleges or attendance centers located therein to insure educational advantages and opportunities to all the enrollees within the district." The opinion also identifies § 37-29-76 as the authorization for an expenditure that satisfies the Board's required determination. The request said ECCC wanted PPE so the campus could reopen safely in the fall.

The opinion leaves that determination to the Board. It does not prescribe a vote, minutes entry, or other procedure for recording the decision.

Common questions

Q: Whose PPE purchase did the AG assess?
A: East Central Community College's proposed purchase for its students and employees. The opinion cites the community college statutes and does not decide what another public body may purchase.

Q: Does the opinion require a recorded vote or particular form of finding?
A: No. It requires the Board to determine that providing PPE is necessary for a statutory purpose and not solely for individual benefit, but gives no procedure for making or recording that determination.

Q: Does the AG say this purchase is a Section 66 donation?
A: No, if the Board makes the required determination. In that circumstance, the AG says the purchase would be an authorized expenditure rather than an unlawful donation.

Q: Does the opinion address providing PPE to the general public?
A: No. The request and answer concern ECCC students and employees.

Q: Does the opinion approve every PPE purchase?
A: No. Its answer depends on the Board determining that the expenditure is necessary to achieve a statutory purpose and not solely for individual benefit.

Citations and references

Constitutional provisions:

• Mississippi Constitution, Section 66 (no donation without two-thirds legislative concurrence)

Statutes:

• Miss. Code Ann. § 37-29-67 (full power to operate community college district)
• Miss. Code Ann. § 37-29-76 (authorized expenditures)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2020/08/B.Mayo_July-31-2020-Providing-Personal-Protective-Equipment-to-Students-and-Employees.pdf

Original opinion text

July 31, 2020

Brian D. Mayo, Esq.
Attorney for the East Central Community College
Board of Trustees
Post Office Box 218
Newton, Mississippi 39345

Re: Providing Personal Protective Equipment to Students and Employees

Dear Mr. Mayo:

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

Question Presented

Due to the COVID-19 pandemic, may the Board of Trustees ("Board") of East Central Community College ("ECCC") purchase and provide personal protective equipment ("PPE") for its students and employees, or would such purchase constitute an illegal donation under Section 66 of the Mississippi Constitution?

Brief Response

If the Board determines that PPE is necessary to achieve a statutory purpose and not for the sole benefit of the individual students and employees, ECCC may provide PPE to its students and employees.

Applicable Law and Discussion

Our office has consistently opined, that an expenditure for a public or authorized purpose, and not for the sole benefit of private individuals, is not an unlawful donation under Section 66 of the Mississippi Constitution, even if the expenditure results in incidental benefits to private individuals. MS AG Op., Brown (November 14, 2016).

As stated by your request, ECCC wishes to provide PPE to students and employees to allow for the campus to safely re-open in the fall. According to Miss. Code Ann. Section 37-29-67, the Mississippi Community College Board of Trustees "shall have the full power to do all things necessary to the successful operation of the district and the college or colleges or attendance centers located therein to insure educational advantages and opportunities to all the enrollees within the district."

It is the opinion of this office that, if the Board determines that providing PPE is necessary to achieve a statutory purpose, and not for the sole benefit of the individual students and employees, this expenditure would not constitute a donation in violation of Section 66 of the Mississippi Constitution. Rather, it would be an authorized expenditure pursuant to Section 37-29-76 that could potentially provide incidental benefits to the community college's students and employees.

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