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 joint airport boards and their constituent governments

Under the opinion, "the statutes governing joint airport boards allow for the revision and amendment of joint agreements." The AG concluded that the McComb-Pike County board "has the statutory authority to amend its agreement to appoint additional members." The opinion ties that to Section 61-5-35, which says a joint agreement "may also provide for: amendments thereof," and to Section 61-5-37, under which the number of board members "shall be provided for in the joint agreement."

For city and county attorneys

The opinion locates the amendment authority in statute, relying on the 1990 Seals opinion that the membership of a joint airport board may be increased "provided that the agreement is lawfully and properly amended to reflect the same." It does not prescribe a particular amendment procedure or any drafting language.

On the question the AG did not answer

The opinion is explicit about its limits. Under Section 7-5-25 it answers only the question of law, and it states the office is "unable to interpret or opine on local policies or agreements" and "cannot offer any guidance on specific language in any amendment." It also says it "cannot opine on the factual question of the board membership's makeup reflecting the proportional financial contribution" of the two governments. Whether to tie board seats to funding is left to McComb and Pike County.

Common questions

Q: Can a Mississippi joint airport board change the number of members each government appoints?
A: Yes. The opinion concludes the board "has the statutory authority to amend its agreement to appoint additional members," because the statutes governing joint airport boards allow revision and amendment of joint agreements.

Q: Does an amendment need approval from the Legislature?
A: No. The opinion grounds the authority in Sections 61-5-35 and 61-5-37, under which the agreement itself may provide for amendments and the board's membership is set "in the joint agreement." It does not require any separate legislative action.

Q: Did the AG say the board membership should match each government's funding share?
A: No. The opinion says it "cannot opine on the factual question of the board membership's makeup reflecting the proportional financial contribution of the respective governing authorities." It confirms only that amendment is legally available; the makeup is for the constituent governments to decide.

Q: What authority did the AG rely on?
A: The opinion cites Section 61-5-33 (joint operation of airports), Section 61-5-35 (contents of the joint agreement, including amendments), Section 61-5-37 (the joint board and its membership), and the Seals opinion (Aug. 22, 1990) under the parallel joint-authority statutes, Sections 61-3-69 and 61-3-71.

Background and statutory framework

The request came from the McComb-Pike County Airport Board, which is owned jointly and equally by the City of McComb and Pike County. The joint agreement gave the board seven members, three appointed by McComb, three by Pike County, and one by joint agreement, and provided that "each public agency shall pay and be responsible for one-half of all cost" of the airport. For several years, though, Pike County had been providing twice the funding McComb did, a situation the agreement did not address. The president asked whether the board's membership could be adjusted to reflect each owner's actual financial support until equal funding resumed.

Section 61-5-33 authorizes public agencies to operate an airport jointly, and Section 61-5-35 authorizes them to enter joint agreements. Section 61-5-35 requires each agreement to specify its duration, the proportionate interest of each agency, the allocation of capital and operating costs, and other terms, and adds that "the agreement may also provide for: amendments thereof, and conditions and methods of termination." Section 61-5-37 establishes the joint board, provides that "the number to be appointed, their term and compensation, if any, shall be provided for in the joint agreement," and authorizes the board to "adopt and amend from time to time rules for its own procedure."

The opinion relied on the Seals opinion (Aug. 22, 1990), issued under Sections 61-3-69 and 61-3-71, which "govern joint airport authorities and largely mirror Sections 61-5-35 and 61-5-37." Seals held that a joint airport board's membership "may be increased, provided that the agreement is lawfully and properly amended to reflect the same." The AG found Seals "equally applicable" to the McComb-Pike County board.

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