MS 2024-04-C-Mord-April-2-2024-Countys-Authority-to-Install-Culverts-on-Private-Property-Us April 2, 2024

Can a Mississippi county install culverts on private property used as a polling place?

Short answer: No. Section 23-15-281(2) lets a county build, repair, and maintain polling places it owns, but only authorizes rental payments (not capital improvements) for private property used as a polling place.

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 AG opinions are persuasive authority but not binding precedent.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.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original AG opinion (PDF)

Plain-English summary

Walthall County's fourth-district polling place in Tylertown is owned by the American Legion. A drainage ditch cuts off a chunk of potential parking and is also a fall hazard. The American Legion asked the county to put culverts in the ditch and cover them, creating both more parking and a safer walkway. The Walthall County Board of Supervisors asked the AG: can we use Section 23-15-281(2) to do that?

The AG said no. Section 23-15-281(2) lets the board of supervisors purchase property (improved or unimproved) and then build, repair, renovate, and maintain polling places on that purchased property. When the polling place is on private land the county does not own, the only authorized payment is "reasonable rental fees" tied to the election day window. Permanent capital improvements like buried culverts on land the county does not own fall outside what the statute authorizes.

This is the recurring Mississippi rule against expending public funds to improve private property. The AG cited no Article IV, Section 95 language directly, but the same principle is doing the work in the background: counties can rent space, but they cannot pour public money into private real estate just because the public uses it for a few days a year.

What this means for you

If you are a county supervisor or county election official

You cannot use polling-place authority under § 23-15-281(2) as a workaround to improve private property. If a private polling-place host needs structural fixes (drainage, ramps, parking expansion, electrical), the realistic options are: pay a fair-market rental that covers the host's own improvement costs, move the polling place to a county-owned facility, or buy the property outright and then improve it. The statute also imposes ADA and structural-soundness requirements on every polling place after May 1, 2019, so if a private host's facility cannot meet those baseline requirements, that is reason to find a different polling place.

If your private property is used as a polling place

Do not expect the county to fund permanent improvements to your land. The county can pay you a "reasonable rental fee" for the day before, day of, and day after the election. That rental can reflect the cost of getting your property election-ready, but it has to be a rental payment, not a county-funded construction project on your land. If you need a culvert or drainage fix, you pay for it (and you can negotiate that cost into the rental).

If you are an attorney advising a county

The AG flagged in passing that "to the extent any previous opinions conflict, they are modified prospectively to conform herewith." So if you have older opinions in your files that read § 23-15-281(2) more permissively for private property, treat them as superseded. The cleaner statutory path for capital improvements remains: county acquires the property, then improves it.

Common questions

Q: Can the county pay the American Legion a higher rental fee that effectively covers the cost of a culvert the Legion installs itself?
A: The opinion does not directly address that, but the answer is built into the statute: a "reasonable rental fee" for the election-day window. If the rental is genuinely a rental payment (and the Legion does the construction), that is on the legal side of the line. If it is structured as a pretend-rental that is really a construction reimbursement, that is the kind of arrangement the State Auditor will scrutinize.

Q: Could the county buy a small slice of the property to install the culverts?
A: Section 23-15-281(2) authorizes the board to purchase improved or unimproved property and then improve it. So yes, in principle, a purchase of the affected portion is on the table. Whether a partial purchase is practical (and whether the American Legion would sell) is a separate question.

Q: What about ADA compliance? Does the county have to fix accessibility problems on private polling places?
A: § 23-15-281(2) requires the board of supervisors to ensure each polling place is accessible to all voters, structurally sound, and ADA-compliant by May 1, 2019. The AG's opinion does not say how a county discharges that duty for a private polling place it cannot improve. The practical answer is: if the private host will not bring the site into compliance and will not allow the county to do so, the county likely needs to relocate the polling place rather than spend on private land.

Q: Does this opinion affect parking lots or sidewalks?
A: Yes. The same logic applies. Permanent improvements to a private parking lot or walkway used for a polling place are not authorized under § 23-15-281(2). Counties can only pay rental fees, not pour concrete or run drainage on private land.

Background and statutory framework

Mississippi Code Annotated Section 23-15-281(2) is the operative provision:

The board of supervisors is authorized, by order spread upon the minutes of the board setting forth the cost and source of funds therefor, to purchase improved or unimproved property and to construct, reconstruct, repair, renovate and maintain polling places, or to pay to private property owners reasonable rental fees when the property is used as a polling place for a period not to exceed the day immediately preceding the election, the day of the election, and the day immediately following the election.

The AG read the statute as offering counties two distinct authorities, separated by "or": (1) buy property and build/repair/maintain on county-owned property, or (2) pay rental fees for private property. The statute does not blend the two by allowing capital improvements on rented private property.

Section 7-5-25 boxes the AG in to prospective opinions. The AG noted in this opinion that he could not validate or invalidate any action already taken.

Citations

Miss. Code Ann. § 23-15-281(2)
Miss. Code Ann. § 7-5-25

Source

Original opinion text

April 2, 2024
Conrad Mord, Esq.
Attorney, Walthall County Board of Supervisors
Post Office Drawer 311
Tylertown, Mississippi 39667
Re: County's Authority to Install Culverts on Private Property Used for a Polling Place

Dear Mr. Mord:
The Office of the Attorney General has received your request for an official opinion.

Background
According to your request, Walthall County's fourth district Tylertown polling place is owned by the American Legion. The property currently has a ditch cutting off a potentially large parking area from the voting public as well as presenting a danger to pedestrians. The American Legion has requested that the county place culverts in the ditch and cover them to make a parking area and eliminate the danger of someone falling into the ditch.

Question Presented
May the board of supervisors, pursuant to Mississippi Code Annotated Section 23-15-281(2) and consistent with the facts presented, purchase and install culverts and cover them to improve private property used for a polling place?

Brief Response
Section 23-15-281(2) does not authorize the board of supervisors to purchase and install culverts and cover them to improve private property used for a polling place.

Applicable Law and Discussion
To the extent your request involves any action already taken by the board of supervisors, this office may not validate or invalidate any past action. Rather, pursuant to Section 7-5-25, this office may only opine upon prospective questions of law.

Section 23-15-281(2) provides:

The board of supervisors is authorized, by order spread upon the minutes of the board setting forth the cost and source of funds therefor, to purchase improved or unimproved property and to construct, reconstruct, repair, renovate and maintain polling places, or to pay to private property owners reasonable rental fees when the property is used as a polling place for a period not to exceed the day immediately preceding the election, the day of the election, and the day immediately following the election. On or before May 1, 2019, the county board of supervisors shall ensure each polling place is accessible to all voters, structurally sound, capable of providing air conditioning and heating and compliant with the Americans with Disabilities Act.

In sum, Section 23-25-281(2) allows boards of supervisors to "construct, repair, renovate and maintain polling places" located on "improved or unimproved propert[ies]" purchased by the board of supervisors, but not on private properties. Rather, private property owners may receive "reasonable rental fees when the property is used as a polling place." It is thus the opinion of this office that Section 23-15-281(2) does not authorize the board of supervisors to purchase and install culverts and cover them to improve private property used for a polling place.

To the extent any previous opinions conflict, they are modified prospectively to conform herewith.

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