Can a Mississippi city spend public money to promote a non-binding referendum's outcome the city wants?

Plain-English summary

Mayor Depreo asked whether the City of Diamondhead could expend funds to promote a non-binding referendum. The AG said no, where the promotion is meant to influence the outcome.

The legal source is the Mississippi Supreme Court's decision in Smith v. Dorsey, 599 So. 2d 529 (Miss. 1992). The court held that nothing in Mississippi statutory or common law authorizes a public entity to use public funds "to actively campaign for a favored position on a bond issue or, similarly, to actively campaign against it." The court drew a clear line: "the school board can inform, but not persuade."

A 2017 AG opinion (Trainer) applied the same principle to a county board of supervisors considering a hospital sale or lease. The 2021 Depreo opinion applies it to a non-binding referendum at the municipal level.

The "inform vs. persuade" line is the key. Drawing on Smith, the opinion's framework is that a public body may spend funds "to inform the community in a fair presentation of both sides of the issue," but "may not spend funds to influence the outcome of the election." In the court's words, "the school board can inform, but not persuade."

The opinion notes a procedural caveat. The original request asked several questions, some of which involved past action or duties of other entities (which the AG cannot opine on under Section 7-5-25). The opinion is limited to the prospective question for the mayor's office.

What this means for you

For Mississippi mayors and city council members

The opinion holds that "the City of Diamondhead may not lawfully expend municipal funds to promote non-binding referenda, where such promotion is meant to influence the outcome of the referenda." It rests on Smith v. Dorsey: a public body may spend funds "to inform the community in a fair presentation of both sides of the issue" but "may not spend funds to influence the outcome of the election." In the court's words, the public body "can inform, but not persuade."

For city attorneys

The opinion applies the Smith v. Dorsey rule to municipal spending on a non-binding referendum: informational, both-sides communication is permitted, but using public funds to actively campaign for a favored position (or against it) is not. The opinion also notes its own limits under Section 7-5-25: it answered only the prospective question for the mayor's office and did not address questions about past action or the duties of other local entities.

For city communications staff

Under the opinion, the dividing line is whether public funds are used to inform with a fair presentation of both sides (permitted) or to influence the outcome (not permitted). The opinion does not catalog specific communication channels; it states the inform/persuade principle from Smith v. Dorsey.

For voters and referendum petitioners

The opinion holds that a Mississippi city may not spend public funds to influence the outcome of a referendum. It does not address how supporters or opponents fund their own efforts; its holding is about the city's use of municipal funds.

Common questions

Q: Can a city spend public money to promote a referendum it wants to pass?
A: No, where the promotion is meant to influence the outcome. The opinion holds the City "may not lawfully expend municipal funds to promote non-binding referenda, where such promotion is meant to influence the outcome of the referenda."

Q: Can the city spend any money on referendum communications?
A: Yes, to inform. Quoting Smith v. Dorsey, the opinion allows a public body to spend funds "to inform the community in a fair presentation of both sides of the issue," but not "to influence the outcome of the election."

Q: What is the "inform but not persuade" rule?
A: It is the Mississippi Supreme Court's holding in Smith v. Dorsey, quoted in the opinion: a public body "can inform, but not persuade." It may fairly present both sides but may not actively campaign for a favored position or against it.

Q: Does this rule apply only to cities?
A: No. The opinion notes that Smith v. Dorsey involved a school board, and that the office has applied the same rule to a county board of supervisors in the Trainer (2017) opinion, which held that a board "or any other public body" may not use public funds to advocate for or against a referendum.

Q: Did the AG answer the mayor's other questions?
A: No. The opinion states that, after a phone discussion clarifying the request, it did not answer the remaining questions because they related to past action or to duties not relevant to the mayor's office, and that an AG opinion cannot opine on the duties of other entities or validate or invalidate past action.

Background and statutory framework

Mississippi has no statute that directly prohibits public funds for referendum advocacy. The rule is a common-law principle articulated in Smith v. Dorsey, 599 So. 2d 529 (Miss. 1992). The Mississippi Supreme Court found that nothing authorizes a public body to spend public money on advocacy in the context of a public vote.

The "inform but not persuade" framing is the operating rule. Smith v. Dorsey grounded it in the absence of any statutory or common-law authority for a public body to use public funds to campaign for or against a public vote.

The 2017 Trainer opinion applied Smith v. Dorsey to a county board of supervisors considering a hospital sale or lease. The board could not use public funds to advocate for or against the sale. The 2021 Depreo opinion confirms the same rule at the city level for non-binding referenda.

The opinion frames the question as turning on whether the spending is meant to influence the outcome. Where municipal funds are used to inform with a fair presentation of both sides, the spending is permitted; where they are used to influence the outcome, it is not.

Citations and references

Statute:

• Miss. Code Ann. § 7-5-25, AG opinions limited to questions of law for the requesting official's prospective duties

Case:

• Smith v. Dorsey, 599 So. 2d 529 (Miss. 1992), public body cannot spend public funds to campaign for or against a referendum; "inform but not persuade"

Prior AG opinions cited:

• MS AG Op., Criswell (Aug. 26, 2016), AG cannot opine on duties of entities other than the requester
• MS AG Op., Magee (Aug. 29, 2008), AG opinions are prospective only
• MS AG Op., Trainer (July 28, 2017), county board may not spend public funds to advocate for or against hospital sale referendum

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2021/12/N.Depreo-November-30-2021-Use-of-Public-Funds-to-Promote-Non-binding-Referenda.pdf

Original opinion text

November 30, 2021

The Honorable Nancy Depreo
Mayor, City of Diamondhead
5000 Diamondhead Circle
Diamondhead, Mississippi 39525-3260

Re: Use of Public Funds to Promote Non-binding Referenda

Dear Mayor Depreo:

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

Issue Presented

May the City of Diamondhead expend funds to promote a non-binding referendum? Pursuant to our discussions by phone clarifying the matters at issue in your request, we do not answer the remaining questions as they relate to past action and/or to duties not relevant to your office.

Brief Response

The City of Diamondhead may not lawfully expend municipal funds to promote non-binding referenda, where such promotion is meant to influence the outcome of the referenda.

Applicable Law and Discussion

Mississippi Code Annotated Section 7-5-25 authorizes the Attorney General to issue official opinions to various public officials and bodies "upon any question of law relating to their respective offices." This office cannot "provide opinions to one entity [or individual] regarding duties of another . . . ." MS AG Op., Criswell at 1 (Aug. 26, 2016). Therefore, we are unable to respond by official opinion to your questions regarding the authority of other local entities. Moreover, this office may only opine on prospective questions of law. An Attorney General's opinion can neither validate nor invalidate past action. MS AG Op., Magee at 1 (Aug. 29, 2008). Thus, we offer this opinion for future guidance.

Both the Mississippi Supreme Court and this office have found that public entities cannot expend public funds to influence the outcome of an election. In Smith v. Dorsey, 599 So. 2d 529, 535 (Miss. 1992), the court found that there is nothing in our state's statutory or common law that would authorize a public entity's use of public funds to actively campaign for a favored position on a bond issue or, similarly, to actively campaign against it. The court further stated that a school board may, however, spend funds to inform the community in a fair presentation of both sides of the issue of a proposed bond referendum but may not spend funds to influence the outcome of the election, finding that "in a nutshell, the school board can inform, but not persuade." Id. at 542. Citing the court's language in Smith, our office has found that a county board of supervisors "or any other public body, may not use public funds to advocate for or against the question of whether to sell or lease the Hospital with an option to sell." MS AG Op., Trainer at *3 (July 28, 2017).

Accordingly, this office is of the opinion that the City of Diamondhead may not lawfully expend municipal funds to promote non-binding referenda, where such promotion is meant to influence the outcome of the referenda.

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