Can a Mississippi IHL Board trustee receive per diem, travel reimbursement, and tort-claims protection while serving before Senate confirmation?

Plain-English summary

Governor Reeves had appointed four new IHL Board trustees on May 18, 2021, to fill vacant seats. The Senate had not yet confirmed them when they began attending and voting at IHL Board meetings. The Commissioner of Higher Education asked three practical questions:
1. Can these trustees receive per diem for meeting attendance before confirmation?
2. Can they be reimbursed for travel and lodging?
3. Are they covered by the Mississippi Tort Claims Act and other state immunities for their official actions during the pre-confirmation period?

The AG answered yes to all three:

Per diem. Section 25-3-69 (general per diem statute) was amended in 2001 to expressly authorize per diem before confirmation: "When the Governor, Lieutenant Governor or Speaker of the House of Representatives appoints a person to a board, commission or other position that requires confirmation by the Senate, the person may receive per diem compensation for the performance of official duties before such appointment is confirmed by the Senate."

Travel reimbursement. Section 25-3-41(8), also amended in 2001, contains the same authorization for mileage and other actual expenses before confirmation.

Tort Claims Act coverage. Section 11-46-1(f) defines "employee" for MTCA purposes broadly: "any officer, employee or servant of the State of Mississippi or a political subdivision of the state, including elected or appointed officials and persons acting on behalf of the state...in any official capacity, temporarily or permanently, in the service of the state...whether with or without compensation." That is "very broad" (per the AG's prior Howell 1996 opinion) and covers IHL Board trustees serving before confirmation.

The AG noted that whether the MTCA applied to a particular claim and whether actions were within course-and-scope of duties were fact questions outside the AG's official-opinion jurisdiction.

The opinion modified prior AG opinions (e.g., Burnett 2000) that had said pre-confirmation board members could not receive reimbursements or per diem.

Currency note

This opinion was issued in 2021. 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.

What the opinion said for each audience, at the time

For new appointees serving before Senate confirmation in 2021

Trustees and other appointees waiting for Senate confirmation had clear authority to attend meetings, vote, receive per diem, get expense reimbursement, and rely on MTCA protection during the pre-confirmation period. There was no reason to skip official duties pending confirmation. The 2001 statutory changes had been designed to address exactly this gap.

For state finance and personnel officials processing appointee compensation

In 2021, finance offices could process per diem and travel reimbursement claims for pre-confirmation appointees without statutory concern. The 2001 amendments to §§ 25-3-41(8) and 25-3-69 explicitly authorized those payments. Prior AG opinions (Burnett 2000 and similar) that had blocked such payments were now superseded.

For boards and commissions handling pre-confirmation members

Boards could fully integrate new appointees into their work during the pre-confirmation period: assign committee work, schedule them for meetings, expect their participation in deliberations. This avoided the awkwardness of having "shadow members" who could attend but not get paid or covered.

For attorneys handling claims involving IHL Board actions

The MTCA's broad employee definition gave pre-confirmation trustees the same liability protection as confirmed trustees. Plaintiffs suing the IHL Board for actions taken during a meeting where pre-confirmation trustees voted couldn't argue that those trustees lacked MTCA protection.

For Senate confirmation proceedings

The 2021 framework didn't change Senate confirmation in any substantive way. The Senate retained its confirmation role; appointees served subject to Senate action. But the pre-confirmation period could be productive instead of paralyzed.

Common questions

Q: Why does Senate confirmation matter at all if the appointee can serve fully before confirmation?
A: Senate confirmation is the constitutional check on gubernatorial appointments. The Senate can deny confirmation, and if it does, the appointment ends. So the pre-confirmation service is provisional, not permanent. The 2001 statutory framework recognizes that interim service should not be unpaid or unprotected, but the Senate's ultimate role remains.

Q: Can a pre-confirmation appointee vote on critical decisions?
A: Yes. The Mississippi Constitution and statutes give the Governor the power to appoint, "by and with the advice and consent of the Senate." The appointment takes effect immediately, subject to subsequent confirmation. Until the Senate denies confirmation, the appointee is a full member with full voting rights.

Q: What happens if the Senate denies confirmation later?
A: The appointee leaves the board. Decisions the board made with the appointee's vote remain valid (a vote cast by a sitting member of a quorum is valid even if the member's appointment is later rejected). The appointee can keep the per diem and reimbursements they received during pre-confirmation service.

Q: How was the law before the 2001 amendments?
A: Prior to 2001, the AG had opined (e.g., Burnett 2000) that board members could not receive per diem or reimbursement before confirmation. That created practical problems: appointees were expected to serve but couldn't be paid for it. The 2001 amendments fixed this gap.

Q: How does the MTCA protect pre-confirmation trustees?
A: The MTCA (Title 11, Chapter 46) is Mississippi's primary mechanism for state-agency tort liability. It provides limited waiver of sovereign immunity, lets plaintiffs sue the state agency, and bars personal liability for employees acting within course and scope. Section 11-46-7 specifically says employees "shall not be held personally liable for acts or omissions occurring within the course and scope of the employee's duties." Trustees fitting the broad employee definition get this protection.

Q: What about other immunities (qualified immunity, statutory immunities, etc.)?
A: The AG specifically declined to opine on "any other state law immunities normally applicable to official actions of the IHL Board," calling that question "too broad to address by official opinion." Specific immunity questions in specific cases would require specific analysis.

Background and statutory framework

The Mississippi Board of Trustees of State Institutions of Higher Learning (IHL Board) governs the state's eight public universities. Members serve twelve-year terms, with one-third of the membership turning over every four years. The Governor appoints, the Senate confirms.

The 2001 statutory amendments (2001 Miss. Laws Ch. 440, H.B. 682) addressed a recurring problem: appointees who took office between legislative sessions had to serve without pay or reimbursement until the Senate could confirm them at the next session. That was an unfair barrier to service, especially for citizen-board members who weren't drawing other public salaries. The amendments brought practical fairness without changing the constitutional confirmation framework.

The MTCA's broad definition of "employee" (§ 11-46-1(f)) reaches well beyond traditional employees. It covers elected officials, appointed officials, board members, volunteers, and persons acting on behalf of the state with or without compensation. The breadth was intentional: the legislature wanted broad protection for state actors against personal liability for actions within their duties. The 1996 AG opinion (Howell) confirmed the breadth.

The 2021 opinion was a confirmation of established law, not a novel ruling. It tied together the 2001 statutory amendments and the 1996 MTCA-breadth opinion to give a comprehensive answer to the Commissioner's three questions.

Citations and references

Statutes:
- Miss. Code Ann. § 11-46-1(f), broad definition of "employee" for MTCA purposes
- Miss. Code Ann. § 11-46-7, no personal liability for employees acting in course and scope
- Miss. Code Ann. § 25-3-41(8), travel and expense reimbursement, includes pre-confirmation appointees
- Miss. Code Ann. § 25-3-69, per diem compensation, includes pre-confirmation appointees
- Miss. Code Ann. § 37-101-3(1), IHL Board appointment process

Prior AG opinions cited:
- MS AG Op., Sutton (Apr. 22, 2016), MTCA application is fact-specific
- MS AG Op., Lucas (July 24, 2009), MTCA's limited waiver of sovereign immunity
- MS AG Op., Howell (Mar. 8, 1996), MTCA "employee" definition is "very broad"
- MS AG Op., Burnett (June 12, 2000), pre-2001 opinion that pre-confirmation appointees couldn't receive reimbursements (modified by this opinion)
- MS AG Op., Barrett (Aug. 29, 1984), AG can refuse to respond to overly broad questions

Bill referenced:
- 2001 Miss. Laws Ch. 440 (H.B. 682), amending §§ 25-3-41 and 25-3-69 to authorize pre-confirmation per diem and reimbursement

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2021/07/A.RankinsJr._July-21-2021-Board-of-Trustees-of-State-Institutions-of-Higher-Learning.pdf

Original opinion text

July 21, 2021

Alfred Rankins, Jr., Ph.D.
Commissioner of Higher Education
3825 Ridgewood Road
Jackson, Mississippi 39211

Re: Board of Trustees of State Institutions of Higher Learning

Dear Dr. Rankins:

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

Questions Presented

1. If the Governor appoints four new Trustees to the Board of Trustees of State Institutions of Higher Learning ("IHL Board") in vacation when the legislature is not in session, and if those four new Trustees attend official meetings of the IHL Board and vote on matters before the IHL Board prior to being confirmed by the Senate, may those Trustees be legally paid the statutorily provided per diem for days during which they participate in the meetings of the IHL Board?[1]

2. May those four new Trustees be legally reimbursed for travel and lodging expenses incurred in order to participate in the IHL Board meetings before they are confirmed by the Senate?

3. Lastly, would those four Trustees be protected by the Mississippi Tort Claims Act and any other state law immunities normally applicable to official actions of the IHL Board, when participating in and voting at official IHL Board meetings before those Trustees are confirmed by the Senate?

Brief Response

1. Pursuant to Section 25-3-69, board members appointed by the Governor may receive per diem compensation prior to confirmation by the Senate.

2. Pursuant to Section 25-3-41(8), board members appointed by the Governor may receive reimbursements for mileage and other actual expenses incurred in the performance of official duties prior to confirmation by the Senate.

3. IHL Board members fit within the broad definition of "employees of the state of Mississippi" as set forth in Section 11-46-1(f) and, when acting within the course and scope of their duties, are entitled to the protection of the MTCA.

Applicable Law and Discussion

Section 37-101-3(1), governing the appointment of IHL Board members, states:

The Governor, by and with the advice and consent of the Senate, shall appoint the members of the Board of Trustees of State Institutions of Higher Learning, one (1) member from each congressional district of the state as existing as of March 31, 1944, one (1) member from each Supreme Court district and two (2) members from the state at large, with the terms of each to begin on May 8, 1944. One-third (⅓) of the membership of said board so appointed shall be appointed for a period of four (4) years, one-third (⅓) for a period of eight (8) years and one-third (⅓) for a period of twelve (12) years. On the expiration of any of said terms of office the Governor shall appoint successors, by and with the advice and consent of the Senate, for terms of twelve (12) years in each case.

In 2001, the Legislature amended Sections 25-3-41 and 25-3-69 to allow reimbursements and per diem compensation for board or commission members appointed by the Governor, Lieutenant Governor or Speaker of the House prior to confirmation by the Senate. 2001 Miss. Laws Ch. 440 (H.B. 682). Section 25-3-41(8) now provides:

When the Governor, Lieutenant Governor or Speaker of the House of Representatives appoints a person to a board, commission or other position that requires confirmation by the Senate, the person may receive reimbursement for mileage and other actual expenses incurred in the performance of official duties before the appointment is confirmed by the Senate, as reimbursement for those expenses is authorized under this section.

With respect to per diem compensation, Section 25-3-69 provides:

Unless otherwise provided by law, all officers and employees of state agencies, boards, commissions, departments and institutions authorized by law to receive per diem compensation for each day or fraction thereof occupied with the discharge of official duties shall be entitled to Forty Dollars ($40.00) per diem compensation. When the Governor, Lieutenant Governor or Speaker of the House of Representatives appoints a person to a board, commission or other position that requires confirmation by the Senate, the person may receive per diem compensation for the performance of official duties before such appointment is confirmed by the Senate, as such per diem compensation is authorized under this section.

Accordingly, in response to your first two questions, board members who have been appointed by the Governor may receive both reimbursements for mileage and other actual expenses incurred in the performance of their duties and per diem compensation prior to Senate confirmation in accordance with the above cited statutes.[2]

With respect to your third question,[3] whether the Mississippi Tort Claims Act (the "MTCA") applies to a particular claim depends on questions of fact. MS AG Op., Sutton at *3 (Apr. 22, 2016) ("Whether a claim is subject to defenses, including the applicability of the Tort Claims Act, is a determination that must be made by the local government based on the facts of the claim."). Moreover, whether an individual's actions are within the course and scope of his or her duties requires a factual determination. This office cannot address questions of fact by way of an official opinion.

The MTCA "provides a limited waiver of sovereign immunity by the State and its political subdivisions for claims for money damages arising from certain torts of these governmental entities and torts of their employees while acting within the course and scope of their employment." MS AG Op., Lucas at *2 (July 24, 2009). Section 11-46-1(f) defines the term "employee" applicable to the MTCA:

"Employee" means any officer, employee or servant of the State of Mississippi or a political subdivision of the state, including elected or appointed officials and persons acting on behalf of the state . . . in any official capacity, temporarily or permanently, in the service of the state . . . whether with or without compensation . . . .

Miss. Code Ann. § 11-46-1(f) (emphasis added). This definition is "very broad." MS AG Op., Howell at *3 (Mar. 8, 1996). It is the opinion of this office that IHL Board members serving prior to Senate confirmation fit within the broad definition of "employees" set forth in Section 11-46-1(f). "An employee may be joined in an action against a governmental entity in a representative capacity if the act or omission complained of is one for which the governmental entity may be liable, but no employee shall be held personally liable for acts or omissions occurring within the course and scope of the employee's duties." Miss. Code. Ann. § 11-46-7.

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

[1] On May 18, 2021, Governor Reeves announced that he had appointed individuals to fill the four vacant seats on the IHL Board.

[2] Prior to the enactment of 2001 Miss. Laws Ch. 440 (H.B. 682), this office opined that board members could not receive reimbursements or per diem compensation prior to confirmation. See, e.g., MS AG Op., Burnett (June 12, 2000). To the extent that any prior opinions conflict with this opinion, the conflicting portions of those prior opinions are hereby modified.

[3] To the extent your third question asks this office to opine regarding "any other state law immunities normally applicable to official actions of the IHL Board," it is too broad to address by official opinion. See MS AG Op., Barrett at *1 (Aug. 29, 1984) (refusing to respond by official opinion on the basis that the question posed was overly broad).