Can a Mississippi county board of supervisors give just one hour of notice for a special meeting under the Open Meetings Act, or do they have to follow the longer five-day requirement in the supervisors' statute?

Plain-English summary

Harrison County's attorney asked whether the board of supervisors could rely on the Open Meetings Act's one-hour notice rule (Section 25-41-13(1)) for a special meeting, instead of the five-day notice rule in the supervisors' chapter (Section 19-3-19).

The AG said no. The two statutes both apply, and the board has to satisfy both.

Section 25-41-13(1) is the Open Meetings Act provision. It applies to any public body that has statutorily prescribed meeting times, places, and procedures. For special meetings, the board must post notice within one hour after the meeting is called in a prominent place at the building where the body normally meets. If the body has a website with the capability to update it, the special-meeting notice must also be posted to the website at least one hour before the meeting.

Section 19-3-19(2) is the supervisors-specific procedural statute. It says that special meetings can be called by the president, the vice president (in the president's absence), or any three members. Notice must be given for at least five days, by advertisement posted at the courthouse door or published in a newspaper of the county. The notice must be entered in full on the minutes. The notice has to specify each matter of business to be transacted, and the board cannot transact any business not specified in the notice.

The AG read the two statutes together. Section 25-41-13(1) opens with: "Any public body which holds its meetings at such times and places and by such procedures as are specifically prescribed by statute shall continue to do so." That is a clear textual signal that the Open Meetings Act layers on top of, rather than replaces, the existing statutory procedure. So the supervisors' five-day rule continues to apply, and the one-hour posting requirement is added.

A footnote acknowledges the COVID-19 declared state of emergency in effect when the opinion issued. The Mississippi Ethics Commission had issued guidance on Open Meetings Act compliance during the pandemic, but the AG's authority is limited to prospective state law and cannot opine on Ethics Commission guidance. Executive orders under Section 33-15-11(b)(17) might also affect application; if any are in effect, those control to the extent of the conflict.

What this means for you

For Mississippi boards of supervisors and county attorneys

The opinion holds that the one-hour posting in Section 25-41-13(1) is "supplemental, but not an alternative," to the requirements of Section 19-3-19, so a board of supervisors must satisfy both for a special meeting. Read together, the two statutes require: the meeting is called by the president, the vice president in the president's absence, or any three members; notice is given for at least five days by advertisement posted at the courthouse door or published in a county newspaper, with the notice entered in full on the minutes; and notice of the called special meeting is posted within one hour after the meeting is called in a prominent place at the building where the board normally meets (and, if the board has a website it can update, posted to the website at least one hour before the meeting).

The opinion also reflects Section 19-3-19's substantive limit: the notice "shall specify each matter of business to be transacted," and "business shall not be transacted which is not specified in the order or notice for such meeting."

For chancery clerks

The opinion turns in part on Section 19-3-19's requirement that the notice, "whether posted or published in a newspaper, shall be entered in full on the minutes of said meeting." That is the recordkeeping point for special-meeting notice.

For Mississippi citizens following county government

Under the opinion, a county board's special meeting requires notice at the courthouse door or in a county newspaper at least five days ahead, plus a one-hour posting at the meeting building. The notice must specify each item of business, and the board may not transact business not specified in the notice.

For Mississippi newspaper publishers

The opinion holds that newspaper publication is one of the two options Section 19-3-19 allows for the five-day notice (the other being a posting at the courthouse door), and that this five-day requirement is not displaced by the Open Meetings Act's one-hour posting.

Common questions

Q: Does the five-day rule apply to regular meetings?
A: The opinion addresses the notice owed before a called special meeting. Section 19-3-19's five-day notice governs those special meetings.

Q: What counts as a special meeting here?
A: Section 25-41-13(1) refers to "any recess meeting, adjourned meeting, interim meeting or any called special meeting." Section 19-3-19 governs the call and notice for the board of supervisors' special meetings.

Q: Can the board use only the Open Meetings Act's one-hour notice instead of the five-day notice?
A: No. The opinion holds the one-hour posting in Section 25-41-13(1) is "supplemental, but not an alternative," to Section 19-3-19. Both apply.

Q: Can the board act on an item that was not in the notice?
A: No. Section 19-3-19 provides that the notice "shall specify each matter of business to be transacted" and that "business shall not be transacted which is not specified in the order or notice for such meeting."

Q: Does the website-posting requirement apply to every county?
A: Section 25-41-13(1) requires the website posting where the public body "has a website and has the capability to update the website." Where it does not, that part does not apply, but the posting at the meeting building and the five-day notice under Section 19-3-19 still do.

Q: Do emergency executive orders affect these rules?
A: They can. The opinion's footnote notes that the opinion "may be or may become affected by any applicable executive orders issued by the Governor pursuant to Section 33-15-11(b)(17)," and that Mississippi was under a COVID-19 state of emergency when the opinion issued.

Q: Does this opinion cover other public bodies besides supervisors?
A: The request and the holding concern boards of supervisors and Section 19-3-19. The opinion's reasoning is that Section 25-41-13(1) tells a body with its own statutory meeting procedures to keep following them and adds the one-hour posting; it does not separately analyze other bodies' statutes.

Background and statutory framework

Mississippi's special-meeting rules for boards of supervisors come from the supervisors' chapter (now Title 19), which sets the five-day notice rule and the courthouse-door-or-newspaper publication options.

The Open Meetings Act (Section 25-41-1 et seq.) was added later, with the goal of opening public-body meetings to public scrutiny. Section 25-41-13(1) was the legislature's approach to bodies that already had specific statutory procedures: keep using those procedures, plus add the one-hour posting requirement.

The "shall continue to do so" language in Section 25-41-13(1) is the textual hook the AG used. It tells public bodies with existing statutory procedures to keep following those procedures, with the one-hour-posting addition.

The result is layered notice: five days for the publication or posting, one hour for the prominent location notice. Both requirements apply.

The COVID-19 footnote is dated. The Ethics Commission had issued guidance on virtual meetings and other accommodations during the pandemic. Whether any of that guidance is still in force depends on the current state of emergency declarations and any legislative or judicial activity since 2021.

The "specify each matter of business" rule in Section 19-3-19 is a substantive constraint, not just a notice formality: the notice has to list each item, and the statute provides that business not specified in the notice may not be transacted at the special meeting.

Citations and references

Statutes:
- Miss. Code Ann. § 19-3-19, special meetings of boards of supervisors (call, notice, scope of business)
- Miss. Code Ann. § 25-41-13, Open Meetings Act notice requirements
- Miss. Code Ann. § 33-15-11(b)(17), governor's executive-order authority during emergencies

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2021/11/T.Holleman-October-29-2021-Notice-of-Special-Meetings.pdf

Original opinion text

October 29, 2021

Tim C. Holleman, Esq.
Attorney for Harrison County Board of Supervisors
1720 23rd Avenue
Gulfport, Mississippi 39501

Re: Notice of Special Meetings

Dear Mr. Holleman:

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

Question Presented

You ask if it is sufficient for the Harrison County Board of Supervisors to comply with the notice provisions of Mississippi Code Annotated Section 25-41-13(1) prior to a special meeting, rather than the provisions of Section 19-3-19.[^1]

Brief Response

No. Boards of supervisors are subject to Section 19-3-19, which prescribes specific notice requirements for their special meetings, in addition to the provisions of Section 25-41-13(1).

Applicable Law and Discussion

Pursuant to Section 25-41-13(1), a public body that has statutorily prescribed meeting times, places and procedures must provide meeting notice, including notice for special meetings, within an hour after such meeting is called. That section provides, in part:

(1) Any public body which holds its meetings at such times and places and by such procedures as are specifically prescribed by statute shall continue to do so and no additional notice of such meetings shall be required except that:

(a) A notice of the place, date, hour and subject matter of any recess meeting, adjourned meeting, interim meeting or any called special meeting shall be posted within one (1) hour after such meeting is called in a prominent place available to examination and inspection by the general public in the building in which the public body normally meets . . . ; and

(b) Except as otherwise provided by law, a notice of a called special meeting shall be posted to the public body's website, if the public body has a website and has the capability to update the website, not less than one (1) hour before the meeting . . . .

Miss. Code Ann. § 25-41-13 (emphasis added). As set forth above, this section applies to public bodies that hold meetings in accordance with times, places, and procedures specifically proscribed by statute. In turn, Section 19-3-19 sets forth the procedures for boards of supervisors to call special meetings. Subsection (2) provides:

The president, or the vice president in the absence or disability of the president, or any three (3) members of the board, may call special meetings when deemed necessary. Notice shall be given of all special meetings, for at least five (5) days, by advertisement posted at the courthouse door, or published in a newspaper of the county, and the notice thereof, whether posted or published in a newspaper, shall be entered in full on the minutes of said meeting. The notice of a special meeting, shall specify each matter of business to be transacted thereat, and at such special meetings business shall not be transacted which is not specified in the order or notice for such meeting.

The notice provisions of Section 25-41-13 that requires a one (1) hour posting of notice prior to a called special meeting by boards of supervisors is supplemental, but not an alternative, to the provisions of Section 19-3-19. Reading the two statutory provisions together, we are of the opinion that the one (1) hour posting requirement in Section 25-41-13(1) is in addition to the five (5) day requirement of Section 19-3-19.

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/ Phil Carter
Phil Carter
Special Assistant Attorney General

[^1]: We recognize that as of the issuance of this opinion, Mississippi is currently under a declared state of emergency due to the Covid-19 pandemic. The Mississippi Ethics Commission has issued guidance to assist public bodies on compliance with the Open Meetings Act during the pandemic. However, as our authority is limited to issuing opinions on prospective questions of state law, we can offer no opinion on the Ethics Commission guidance. We further note that this opinion may be or may become affected by any applicable executive orders issued by the Governor pursuant to Section 33-15-11(b)(17).