MS 2023-06-S-Morris-Harris-June-29-2023-Unauthorized-Purchase June 29, 2023

If a Mississippi county employee made an unauthorized purchase, can the county itself go to court to get permission to pay the vendor?

Short answer: No. Mississippi law does not authorize a county to petition a court for permission to pay an unauthorized invoice or to initiate a lawsuit to correct its own purchasing failure. The vendor must file a claim under Section 19-13-23, and if the board rejects it, the vendor (not the county) may appeal to circuit court or sue.

Disclaimer: This is an official Mississippi Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Mississippi attorney for advice on your specific situation.

Subject

Bolivar County Unauthorized Purchase

Recipient

Stephanie N. Morris-Harris, Esq., Attorney, Bolivar County Board of Supervisors

Plain-English summary

Bolivar County's road manager rented equipment in September 2022 with a $600 purchase order for a one-week rental. The equipment was not returned until January 2023, four months past schedule, racking up $7,272 in additional rental fees that the board of supervisors had never authorized. The county's attorney asked the AG whether the county could go to court to get authority to pay the unauthorized portion of the bill, or whether the vendor would have to take the lead.

The AG's answer: it is the vendor's move, not the county's. Mississippi law (Sections 19-13-23 and 19-13-31) sets up a one-way claims process. A vendor with a claim against a county files the claim with the clerk of the board of supervisors, with date, itemization, and supporting evidence. The board reviews the claim, can amend or audit it, allows valid claims, rejects illegal ones that cannot be cured by amendment, and continues claims that are defective but salvageable. If the board rejects or refuses to act on a claim, the claimant (still the vendor, not the county) may appeal to circuit court or sue the county directly. Nothing in the claims statute authorizes the county to start the litigation.

The AG also noted, for informational purposes, that the underlying purchasing-law issue (whether the road manager's rental and the resulting overage complied with central purchasing laws like Sections 31-7-101 et seq., 65-7-95, and 65-17-1(9)) was not appropriate for an opinion because the AG cannot validate or invalidate past actions and is limited to prospective questions of law under Section 7-5-25.

What this means for you

County attorneys facing unauthorized purchases

You cannot go to court for the county. Tell the vendor about the claims process under Section 19-13-23 and let them file. The board then has to decide, on the record, whether to allow, reject, or continue the claim under Section 19-13-31. If the board rejects, the vendor's appeal route is to circuit court or a separate lawsuit.

Boards of supervisors

When you receive a claim from a vendor for unauthorized work, your job is to make findings of fact, audit the claim, and act on it under Section 19-13-31. The Sanders opinion (Oct. 18, 2013) cited by the AG reminds you that "the board of supervisors must examine the evidence before it concerning the claim, make findings of fact, and reflect the same in the minutes." Skipping the findings invites later litigation challenges and potentially a State Auditor finding.

Vendors who did extra or extended work for a county

If your invoice exceeds the original purchase order or covers work outside the authorized scope, you are not stuck. File a claim with the clerk of the board following Section 19-13-23. Itemize, date, and document. If the board rejects or refuses to act, your appeal goes to circuit court or you can sue the county. The county is not going to volunteer to start a court process for you.

County road managers and other purchasing-authorized employees

The Morris-Harris facts are a cautionary tale. A $600 PO turned into a $7,272 invoice because equipment sat unreturned for four months. Track rentals against return dates. If a project schedule slips, get a new PO authorized before the original window closes. Otherwise, the vendor faces the claims gauntlet, and the county faces an audit.

State Auditor staff

The factual question (was this an unauthorized purchase?) is one for the Auditor's office, not the AG. Sections 31-7-101 et seq. (central purchasing), 31-7-13(b) (bidding for purchases over $5,000 but not over $75,000), 65-7-95 (board renting road machinery or equipment), and 65-17-1(9) (county road manager equipment leases) are the substantive purchasing laws to consult.

Common questions

What is a Section 19-13-23 claim?
A formal written claim against the county filed with the clerk of the board of supervisors. It must be itemized, dated, and supported by evidence of performance or delivery as required by Section 19-13-25.

What does the board of supervisors do with the claim?
Under Section 19-13-31, the board calls the claims docket at each regular meeting, audits each claim, and either (a) allows it, (b) rejects or disallows it as illegal and uncurable, or (c) continues it for amendment or perfection.

What if the board rejects the claim?
The vendor can appeal to circuit court or bring suit against the county. Section 11-51-75 governs appeals from board decisions.

Why can't the county sue itself or seek court authority on its own?
The claims statute creates a vendor-driven process. There is no statutory mechanism for the county to initiate the litigation. The AG's reading enforces that legislative design.

Can the board just pay the unauthorized invoice without going through this process?
The AG opinion does not directly bless that. If the unauthorized portion violated central purchasing law, paying it could expose the county to State Auditor findings and the responsible employee to personal liability. Best practice is to require the vendor to file the claim and then the board to make findings about whether the claim is "legal" or can be made legal by amendment under Section 19-13-31.

What happens to the responsible county employee?
The Auditor's office can investigate central-purchasing violations and may seek recovery from individuals who knowingly made unauthorized purchases. That is a separate process from the vendor's claim.

Background and statutory framework

Mississippi's central purchasing system, Section 31-7-101 et seq., sets the procedural and substantive rules for county and municipal purchases. Section 31-7-13(b) imposes bidding requirements for purchases over $5,000 but not exceeding $75,000. Section 65-17-1(9) governs county road manager authority to lease equipment "in conformity with the budget, in accordance with the central purchase system and existing laws and subject to approval of the board as to price or rental." Section 65-7-95 sets requirements for the board to rent road machinery or equipment.

Section 19-13-23 lays out the vendor's claim-filing process, requiring the claim to be filed with the clerk of the board on or before the last day of the month for which it is payable. Section 19-13-31(1) describes the board's duty to call the claims docket at each regular meeting, audit the claims, and allow, reject, or continue them. The same subsection provides the vendor's appeal route to circuit court or direct suit if the board rejects the claim.

The AG opinion's structural point is that the claims process is unidirectional: vendor to county, with appeal rights for the vendor only. There is no statutory mechanism for the county to take the initiative.

Citations

Miss. Code Ann. § 7-5-25 (AG opinions limited to prospective questions of state law)
Miss. Code Ann. § 11-51-75 (procedure to appeal a board judgment or decision)
Miss. Code Ann. § 19-13-23 (claim-filing requirements with clerk of board)
Miss. Code Ann. § 19-13-25 (evidence of performance or delivery)
Miss. Code Ann. § 19-13-31 (board claims-docket procedure and appeal rights)
Miss. Code Ann. § 19-13-31(1) (allowance, rejection, or continuation of claims; vendor appeal rights)
Miss. Code Ann. § 31-7-13(b) (bidding for purchases over $5,000 but not over $75,000)
Miss. Code Ann. § 31-7-101 (central purchasing requirements, et seq.)
Miss. Code Ann. §§ 31-7-301, 31-7-305, 31-7-309, 31-7-311, 31-7-313 (vendor claim processing provisions)
Miss. Code Ann. § 65-7-95 (board renting road machinery or equipment)
Miss. Code Ann. § 65-17-1(9) (county road manager equipment leases)
MS AG Op., Brock (Nov. 8, 2019) (AG declines to validate or invalidate past actions)
MS AG Op., Sanders (Oct. 18, 2013) (board of supervisors must make findings of fact reflected in minutes)

Source

Original opinion text

June 29, 2023
Stephanie N. Morris-Harris, Esq.
Attorney, Bolivar County Board of Supervisors
Post Office Box 698
Cleveland, Mississippi 38732
Re:

Unauthorized Purchase

Dear Ms. Morris-Harris:
The Office of the Attorney General has received your request for an official opinion.
Background
According to your request, the Bolivar County ("County") Road Manager secured a $600 purchase
order for the one-week rental of certain equipment in September 2022. However, the equipment
was not returned to the rental company until January 2023, resulting in invoices to the County
totaling $7,272. The additional rental fees incurred for the rental of the equipment were not
authorized by the Bolivar County Board of Supervisors ("Board"), and thus, according to your
request, violate the relevant purchase laws.
Questions Presented
1. May Bolivar County petition a court of competent jurisdiction for authority to pay the
additional invoices, or must the court proceeding be initiated by the vendor?
2. Is there any authority under which Bolivar County may initiate an action in court to correct
the error/failure and pay the vendor?
Brief Response
Mississippi Code Annotated Sections 19-13-23 and 19-13-31 provide the statutory scheme for
persons having claims against a county. Under this scheme, a person must first file a claim with
the clerk of the board of supervisors. If the board of supervisors rejects or refuses the claim, the
claimant may appeal to the circuit court or may bring suit against the county.

Applicable Law and Discussion
As an initial matter, opinions of this office are limited to prospective questions of state law. Miss.
Code Ann. § 7-5-25. This office does not validate or invalidate past actions. Therefore, to the
extent your request deals with the County's compliance with the central purchasing requirements
established in Sections 31-7-101 et seq., this office must decline to respond with an official
opinion. MS AG Op., Brock (Nov. 8, 2019). However, for informational purposes only, we find
the following purchasing laws relevant to your described circumstances: Section 65-17-1(9)
(providing county road manager may lease equipment "as may be necessary for operation of the
county road department in conformity with the budget, in accordance with the central purchase
system and existing laws and subject to approval of the board as to price or rental"); Section 65-7-95 (providing requirements for board of supervisors to rent road machinery or equipment); and
Section 31-7-13(b) (providing bidding requirement and procedure for purchases over $5,000 but
not over $75,000).
Regarding the County's ability to seek court authority or initiate a court action to pay the subject
invoices, it is the opinion of this office that Mississippi law does not authorize the County to do
so. Section 19-13-23 sets forth how claimants must submit claims against counties. It provides:
Any person having a just claim against any county shall first file the same on or
before the last day of the month for which such claim may be payable, with the
clerk of the board of supervisors for presentation to the board for allowance, which
said claim shall be properly dated and itemized, and shall be accompanied by any
evidence of performance or delivery as required by Section 19-13-25. The claimant
may amend said claim at any time before final rejection or allowance, and may
appear before the board and submit further evidence or argument in support thereof,
having a continuance for either or both of said purposes if desired.
Section 19-13-31(1) sets forth the requisite process once a claim has been submitted in accordance
with Section 19-13-23. Section 19-13-31(1) states, in pertinent part:
At each regular meeting of the board, the claims docket shall be called . . . . All
claims found by the board to be illegal, and which cannot be made legal by
amendment, shall be rejected or disallowed. All other claims shall be audited, and
all those found proper upon due proof shall be allowed in the order in which they
appear on the docket, whether or not there shall then be sufficient money in the
several funds on which warrants must be drawn for their payment. Those claims as
to which a continuance is requested by the claimant, and those found to be defective
but which might be perfected by amendment shall be continued.
...
If the board shall reject any such claim in whole or in part, or refuse, when requested
at a proper time, to pass finally thereon, the claimant may appeal to the circuit court,
or may bring suit against the county on such claim.

...
In processing claims of vendors the board of supervisors shall be subject to the
provisions of Sections 31-7-301, 31-7-305, 31-7-309, 31-7-311, and 31-7-313.
(Emphasis added).
In summary, once a claimant has properly filed a claim against the County in accordance with
Section 19-13-23, the Board shall then follow the procedures for the administration of claims set
out in Section 19-13-31. If the Board makes the factual determination that a claim can be made
legal by amendment, then it may be approved and allowed. However, if the Board makes the
factual determination that a claim is "illegal, and . . . cannot be made legal by amendment," it
"shall be rejected or disallowed." Miss. Code Ann. § 19-13-31(1). Beyond this, to be allowed,
claims must be audited and determined proper upon due proof. Id.; see also MS AG Op., Sanders
at *2 (Oct. 18, 2013) (opining that a county board of supervisors "must examine the evidence
before it concerning the claim . . . make findings of fact, and reflect the same in the minutes"). If
a claim is rejected or refused by the Board pursuant to Section 19-13-31, the claimant must appeal
to the circuit court or bring suit against the County. Miss. Code Ann. § 19-13-31(1); see also Miss.
Code Ann. § 11-51-75 (providing procedure to appeal a judgment or decision of the board of
supervisors of a county).
It is thus the opinion of this office that Sections 19-13-23 and 19-13-31 do not authorize the County
to petition a court of competent jurisdiction for authority to pay an invoice, nor do they authorize
the County to initiate an action in court to correct the County's failure to pay an invoice.
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/ Maggie Kate Bobo
Maggie Kate Bobo
Special Assistant Attorney General