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. A city can:
- Provide a factual summary of the referendum question
- Present both sides of the issue fairly
- Hold public meetings where supporters and opponents can speak
- Publish balanced information about the consequences of yes vs. no
A city cannot:
- Run advertising urging a yes (or no) vote
- Distribute one-sided materials promoting the city's preferred outcome
- Use city employees on city time to campaign for the outcome
- Pay for signs, flyers, or social media ads urging a particular vote
The AG's opinion notes a procedural caveat. The original request asked several questions, some of which involved past actions 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
If your city is considering spending public funds on referendum-related communications, draw the line at informing versus persuading.
Allowed:
- Voter education materials that present the question, the consequences of each outcome, and the timeline
- Public meetings where the city explains the issue and citizens can ask questions
- Press releases that announce the referendum and explain its content factually
- City staff time spent administering the election (poll workers, ballots, etc.)
Not allowed:
- Mailings urging "Vote Yes" or "Vote No"
- Advertising in newspapers or social media advocating an outcome
- Materials that present only one side of the issue
- Use of the city seal, mayor's signature, or city branding to support a campaign group
If individual elected officials want to campaign personally, they should do so on their own time with their own resources. The line between official capacity and personal capacity matters.
For city attorneys
Develop a clear policy distinguishing voter education from advocacy. Train staff on the distinction. Review all referendum-related communications before they go out.
Specific risk areas:
- Mayor's "From the Mayor's Desk" columns urging support
- City newsletters with one-sided framing
- City social media accounts that share advocacy content
- City-funded printing of "Vote Yes" yard signs or door-hangers
If a referendum is contentious, advocate caution. The litigation and audit risk from straying past the inform/persuade line is real, and Smith v. Dorsey is clear precedent.
For city communications staff
Stick to factual, balanced content on referenda. If you find yourself writing copy that reads like a campaign piece, redirect it to neutral framing. The test is whether the same materials would be appropriate to send to a yes voter and a no voter.
A useful self-check: would this material make a reasonable reader feel the city has taken a side? If yes, it has crossed the line.
For voters and referendum petitioners
Citizens proposing or opposing a referendum should not expect city resources to support either side. Both supporters and opponents must run their own campaigns with their own (private) resources.
If you observe a city using public funds to campaign for or against a referendum, the recourse channels are:
- Complaint to the State Auditor (audit issue)
- Complaint to the AG's office or a local prosecutor (statutory violation)
- Civil suit citing Smith v. Dorsey (most direct legal challenge)
For the State Auditor's Office
Smith v. Dorsey violations are audit-relevant. City expenditures on referendum advocacy materials should be flagged, and the city should be required to explain the educational vs. advocacy distinction. If the expenditure clearly crosses the persuade line, the city may have to recoup the funds.
Common questions
Q: What counts as "non-binding referendum"?
A: A referendum that asks for citizen input but does not legally bind the city to follow the result. Mississippi cities sometimes hold non-binding referenda on issues like bond proposals, annexation, or major policy changes. Whether binding or non-binding, Smith v. Dorsey applies.
Q: Can the mayor publicly support the referendum?
A: The mayor as an individual can publicly support or oppose. The mayor cannot use the city's resources, employees, or branding to do so. There is a personal-vs.-official capacity line.
Q: What about a city council resolution endorsing the referendum?
A: A resolution stating the council's position is generally allowed (it is a legislative action, not a campaign expenditure). Spending money to circulate the resolution to voters as a campaign piece is different.
Q: Can the city hold a public meeting where the mayor advocates the city's position?
A: A balanced public meeting where multiple viewpoints are presented is allowed. A meeting structured as an advocacy event for one side is closer to the persuade line.
Q: What about city-funded studies that support one outcome?
A: A factual study (engineering report, financial analysis) is not advocacy even if its conclusions favor one outcome. The line is whether the study is presenting facts or campaigning. A neutral analysis from a credible source is different from a one-sided narrative.
Q: Does the same rule apply to school district referenda?
A: Yes. Smith v. Dorsey itself was a school-district bond case. The rule applies across public bodies in Mississippi.
Q: Can the city share information about the consequences of the vote?
A: Yes, if balanced. "If the referendum passes, the property tax will increase by X. If it fails, the project will not proceed and the existing fund balance of Y will remain." This is factual, balanced information.
Q: What if a private group distributes the city's factual material in their campaign?
A: That is fine. Once the city has produced balanced factual material, citizens can use it. The city's prohibition is on using its own funds to advocate; it does not extend to controlling how citizens use public information.
Q: Are there exceptions for emergencies or specific statutes?
A: Some statutes specifically authorize expenditures related to elections or referenda (e.g., for ballot printing, polling places). These are administrative, not advocacy. The general Smith v. Dorsey rule covers advocacy expenditures.
Q: What is the consequence of violating Smith v. Dorsey?
A: Civil litigation has been the primary enforcement mechanism. Officials may be required to repay misspent funds, and the State Auditor may flag the expenditure. There are no specific criminal penalties, but the misuse-of-public-funds analysis can create individual liability for officials in some cases.
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 has become the operating rule. It tracks the federal courts' similar treatment of government campaign-finance restrictions in some contexts, though the constitutional underpinnings are different (federal cases often rest on First Amendment government-speech doctrine; Smith v. Dorsey was statutory and common-law).
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 line drawing in practice is not always easy. Cities often have legitimate communication needs around major policy issues, and crossing from neutral information into one-sided advocacy can happen subtly. The AG's opinions and the State Auditor's office focus on the cumulative impression of the city's communications. A few neutral materials with one mildly suggestive statement may be acceptable; a coordinated multi-channel push for an outcome 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