Can the membership on a Mississippi joint airport board be adjusted when one owner has been paying double the cost?
Plain-English summary
The McComb-Pike County Airport is a joint project of the City of McComb and Pike County. The original joint agreement set up a seven-member board: three appointees each from McComb and Pike County, plus one joint appointee. The agreement said each agency would pay half of all costs.
For several years, Pike County had been paying twice what McComb paid. The agreement did not address what to do about that imbalance. The board's president asked whether the membership of the board could be adjusted to reflect the actual funding contributions until equal funding resumed.
The AG said yes. The statutes governing joint airport boards (Sections 61-5-33 to 61-5-41) allow revision and amendment of joint agreements. The legislature left specifics to the agreement, and the agreement can be amended through the same process by which it was originally adopted.
The framework: Section 61-5-33 authorizes public agencies to operate airports jointly. Section 61-5-35 authorizes joint agreements with specified content (duration, proportionate interest, cost allocation, expense allocation, termination, amendments). The agreement may also provide for amendment. Section 61-5-37 establishes the joint board, with the number of members "provided for in the joint agreement."
A 1990 Seals opinion had reached the same conclusion under parallel statutes (Sections 61-3-69 and 61-3-71, governing joint airport authorities, which mirror Sections 61-5-35 and 61-5-37). The Seals opinion held that "the membership of a joint airport board may be increased, provided that the agreement is lawfully and properly amended to reflect the same."
The AG explicitly declined to opine on local policies or the specific language of any amendment. Whether the board membership specifically should track proportional funding is a factual and policy question for the constituent governments. The AG's role was the legal question: can the agreement be amended? Yes.
What this means for you
For Mississippi joint airport boards
If your joint agreement no longer reflects the working reality (cost allocation, board membership, term lengths, etc.), the statute supports amendment. The amendment process should mirror the original adoption: action by both (or all) constituent governments through their formal procedures.
Steps for amendment:
- The board (or one of the constituent governments) proposes an amendment
- Both (or all) constituent governments review through their attorneys and policy staff
- Each constituent government adopts a resolution accepting the amendment
- The board records the amended agreement and acts under the new terms
The amendment is binding once each constituent government has formally accepted it.
For city and county attorneys advising joint board participants
The amendment authority is statutory; you do not need special legislation to adjust membership or other terms. Use the same process the original agreement used.
If your client is one constituent government and the proposal would benefit the other government (e.g., increase the other's representation), make sure your client's interests are represented in the amendment negotiations. Joint agreements are essentially contracts; the amendment must be acceptable to both sides.
For amendments tied to funding shifts:
- Document the funding history in the amendment recitals
- Include a sunset or rebalancing clause if the funding dynamic might shift back
- Consider whether the cost-allocation provision should also be updated to address the imbalance
For mayors and county supervisors
When you become aware of an imbalance in a joint operation (an airport, a port, a hospital, a regional facility), the joint agreement is the place to address it. Amendments can happen, and the AG opinion confirms the legal authority.
The negotiation is a political and policy matter. The AG cannot tell you what membership ratio is right; that is for the participating governments to negotiate. But the AG confirms you can negotiate it.
For airport administrators
The day-to-day operations continue under the existing agreement until an amendment is adopted. If an amendment is in process, document any decisions made during the transition to avoid disputes about which version of the agreement applied.
For internal record-keeping, maintain:
- The original joint agreement
- All amendments with dates and adopting resolutions
- Current operating version (consolidating the original and amendments) for easy reference
For aviation-industry attorneys
Joint airport agreements are common but not always well-drafted. The 2021 opinion is a reminder that flexibility exists. When advising clients on airport projects involving multiple jurisdictions, build in clear amendment procedures and a process for revisiting the cost and governance allocation periodically.
Common questions
Q: Does the amendment need legislative approval?
A: No. The statute already authorizes amendment by the participating governments. The legislature does not need to approve each specific amendment.
Q: Can the amendment retroactively change the cost allocation?
A: The amendment can change the cost allocation going forward. Retroactive changes raise more difficult issues (already-paid costs typically cannot be reallocated unilaterally). Any retroactive provision should be carefully negotiated and may not be enforceable.
Q: Can the board itself amend the agreement, or does it require the constituent governments?
A: The constituent governments are the parties to the joint agreement and have to adopt amendments. The board operates under the agreement; the board can adopt its own internal rules under Section 61-5-37 ("rules for its own procedure"), but the broader agreement requires the constituent governments.
Q: What if one constituent government refuses to amend?
A: The agreement remains in force as originally written. The other government cannot unilaterally change the terms. The dispute is then a negotiation between the participating governments, possibly with mediation or, in extreme cases, withdrawal from the joint operation per the termination procedures in the agreement.
Q: What if the imbalance is temporary?
A: The amendment can be conditional or time-limited. For example, "Pike County's representation increases to four members for so long as Pike County provides more than 60% of operating funds; reverts to three members when funding equalizes."
Q: Can the board vote to redistribute internal duties without amending the agreement?
A: Yes, for internal matters within the board's existing authority. Cannot, for matters reserved to the agreement (like membership numbers).
Q: How does the McComb-Pike County agreement relate to the federal authorities?
A: Federal aviation regulations (FAA) apply to airport operations. Federal grants come with their own conditions (often including governance requirements). Any amendment should be reviewed for compliance with federal requirements.
Q: Can a third party challenge the amendment?
A: Standing is limited. Citizens, taxpayers, and airport users typically cannot challenge a properly adopted amendment unless it violates a specific legal right (e.g., procedural due process if the amendment imposes new burdens, or open-meetings violations if the constituent governments did not act publicly).
Q: What if the agreement is decades old and unclear about amendment procedures?
A: The statutory authorization allows amendment regardless. The procedure should follow the same form as adoption. If the original used resolution by each governing body, amendments should use the same.
Q: Can a third constituent government be added later?
A: Sections 61-5-33 and following address joint operations. Expanding to a third government is a significant change that would require careful analysis. The basic principle (joint agreements can be amended) supports the possibility, but the specific mechanics and federal-grant implications need separate review.
Background and statutory framework
Mississippi has two parallel statutory frameworks for joint airport governance:
- Joint airport boards: Sections 61-5-33 to 61-5-41 (used in McComb-Pike County)
- Joint airport authorities: Sections 61-3-69 and 61-3-71
The two are similar but not identical. The 1990 Seals opinion was under the joint-authority framework; the 2021 Hensarling opinion is under the joint-board framework. The AG used Seals as analogous precedent.
Section 61-5-33 authorizes joint operation of airports by public agencies. Section 61-5-35 specifies what a joint agreement must contain: duration, proportionate interest, preliminary and capital cost allocation, operating-expense allocation, and other required terms. The statute also says: "The agreement may also provide for: amendments thereof, and conditions and methods of termination of the agreement . . . ."
Section 61-5-37 creates the joint board. The board's composition is "provided for in the joint agreement" (number, term, compensation). The board has the powers Section 61-5-9 et seq. enumerate (operations, contracts, ordinance-making, guard appointments, etc.) plus the power to "adopt and amend from time to time rules for its own procedure."
The "rules for its own procedure" power is the board's internal-governance authority. The agreement governs the structural relationships between the constituent governments and the board.
The cost-allocation issue underlying the 2021 opinion is a common pattern. Original joint agreements often specify equal-funding splits. Reality diverges (one government's revenue base shrinks, costs grow disproportionately, federal-grant matches require one side to contribute more). The agreement may not address what to do about the imbalance. The AG opinion confirms that amendment is the available mechanism.
The 1990 Seals opinion is foundational for the membership-amendment authority. It addressed a different fact pattern (increasing membership generally) but established the principle. The 2021 Hensarling opinion confirms the principle in the funding-imbalance context.
Citations and references
Statutes:
- Miss. Code Ann. § 7-5-25, AG opinions limited to questions of law
- Miss. Code Ann. § 61-3-69, joint airport authority agreements (parallel framework cited as analogy)
- Miss. Code Ann. § 61-3-71, joint airport authority board membership (parallel framework)
- Miss. Code Ann. § 61-5-33, joint operation of airports by public agencies
- Miss. Code Ann. § 61-5-35, joint agreement contents and amendments
- Miss. Code Ann. § 61-5-37, joint board establishment and procedure
Prior AG opinion cited:
- MS AG Op., Seals (Aug. 22, 1990), joint airport authority board membership may be increased through proper agreement amendment
Source
- Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
- Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2021/12/R.Hensarling-September-3-2021-Amendment-of-the-McComb-Pike-County-Airport-Board-Joint-Agreement.pdf
Original opinion text
September 3, 2021
Mr. Robert Hensarling
President, McComb-Pike County Airport Board
1018 Pinehurst West
McComb, Mississippi 39648
Re: Amendment of the McComb-Pike County Airport Board Joint Agreement
Dear Mr. Hensarling:
The Office of the Attorney General has received your request for an official opinion.
Background
According to your request, the McComb-Pike County Airport is owned jointly and equally by the City of McComb and Pike County. A Joint Agreement of the two governing authorities created the airport and the airport board and specifies that three members of the board shall be appointed from McComb, three members from Pike County, and one member shall be appointed by joint agreement of both owners. Additionally, the Joint Agreement states that "each public agency shall pay and be responsible for one-half of all cost of acquisition, establishment, construction, enlargement, improvement, cost of operation and maintenance, regulation and protection of the airport." However, according to your request, for the past several years Pike County has provided twice the financial funding of that provided by the City of McComb, and such a situation is not addressed by the Joint Agreement.
Question Presented
May the number of airport board members be adjusted to reflect the amount of financial support from each owner until such time as equal financial support is once again achieved?
Brief Response
Yes. The statutes governing joint airport boards allow for the revision and amendment of joint agreements.
Applicable Law and Discussion
Pursuant to the authority granted to this office in Mississippi Code Annotated Section 7-5-25, official opinions of the Attorney General are limited to questions of law for future guidance of those officials entitled to receive them. We are unable to interpret or opine on local policies or agreements, and, therefore, cannot offer any guidance on specific language in any amendment to or analyze provisions of the Joint Agreement.
As part of the chapter regulating airport facilities, Section 61-5-33 authorizes public agencies, such as municipalities and counties, to operate an airport jointly. The subsequent section authorizes those public agencies to enter into agreements with each other for joint airport action. Miss. Code Ann. § 61-5-35. Specifically, Section 61-5-35 states, in pertinent part:
Each such agreement shall specify its duration, the proportionate interest which each public agency shall have in the property, facilities and privileges involved, the proportion to be borne by each public agency of preliminary costs and costs of acquisition, establishment, construction, enlargement, improvement, and equipment of the airport or air navigation facility, the proportion of the expenses of maintenance, operation, regulation and protection thereof to be borne by each, and such other terms as are required by the provisions of sections 61-5-33 to 61-5-41.
The agreement may also provide for: amendments thereof, and conditions and methods of termination of the agreement . . . .
Such agreements shall also establish a joint board consisting of members appointed by each agency's governing body. Section 61-5-37 states that "[t]he number to be appointed, their term and compensation, if any, shall be provided for in the joint agreement." The joint board is also authorized to "adopt and amend from time to time rules for its own procedure." Miss. Code Ann. § 61-5-37. Both sections authorize a joint airport board to amend its rules and agreements.
This office has previously opined that under the authority of Sections 61-3-69 and 61-3-71, which govern joint airport authorities and largely mirror Sections 61-5-35 and 61-5-37, the membership of a joint airport board may be increased, "provided that the agreement is lawfully and properly amended to reflect the same." MS AG Op., Seals at *1 (Aug. 22, 1990). This office is of the opinion that Seals is equally applicable to the situation faced by the McComb-Pike County Airport Board. While this office cannot opine on the factual question of the board membership's makeup reflecting the proportional financial contribution of the respective governing authorities, it is our opinion that the board has the statutory authority to amend its agreement to appoint additional members.
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/ Misty Monroe
Misty Monroe
Special Assistant Attorney General