Can a Mississippi county dispose of a public park, give credit for past church donations, or contract with a church to operate it?

Plain-English summary

In 1999 and 2002, True Light Missionary Baptist Church deeded six acres in Leake County to the County for a public park, with a reverter clause: if the land ever stopped being used for recreation, ownership would automatically return to the Church. The County wanted federal grant money for park improvements, but the grant could not be paired with a reverter, so in 2009 the Church executed a quitclaim deed conveying its reversionary interest to the County. The Church and its members continued to invest labor and money in the park.

By 2024, the County wanted out of the maintenance and oversight burden. The County's attorney asked a sequence of detailed questions about how the County could divest itself, what happens to bids, whether the Church's past investment can count as consideration, whether a management contract is an option instead of a sale, and whether such a contract can extend past the current board's term.

The AG walked through Section 19-7-3 (county property disposal) and Section 19-3-41 (county general contracting authority) to provide a procedural roadmap. In short:

1. The County can sell or lease the park if the board makes the required findings under Section 19-7-3(4) (no longer needed for county purposes; ordinary sale not necessary or desirable for the county's financial welfare; sale will promote community development) and follows the advertising-and-bid procedure in Section 19-7-3(2)(a).
2. After advertising, the County must reject all bids, accept the highest and best bid, or hold an auction starting at the highest bid received. The County cannot show preference and cannot pick any bid it likes.
3. As an alternative to selling or leasing, the County can use its general contracting authority under Section 19-3-41 to enter a management or operational agreement with the Church, with the park remaining open to the public.
4. Under such a management agreement, the County may authorize the Church to retain concession or rental proceeds to defray its expenses.
5. Past consideration alone (the Church's past donations of labor and money) generally does not support a contract; it must be paired with present or future consideration. What is sufficient as "good and valuable consideration" is for the board to decide, subject to judicial review.
6. Without express statutory authority to extend the term, a contract is voidable by successor boards beyond the current board's term.

What this means for you

For boards of supervisors and county attorneys

The opinion gives a usable two-track framework. Track one: divestiture by sale or lease. Make the required findings on the minutes (no longer needed, ordinary sale not necessary for financial welfare, conveyance promotes community development under Section 19-7-3(4)), advertise once a week for three weeks, accept sealed bids, and either reject all bids, accept the highest and best, or hold an auction starting at the highest bid with no preference shown. Track two: keep ownership but contract out the operations under Section 19-3-41, with the park remaining open to the public. The Church (or any other operator) can retain concessions and rentals if the contract authorizes it.

If you want to recognize the Church's past investment in the consideration math, structure the contract so present or future consideration is also flowing. The board has discretion to evaluate whether the total consideration package is adequate, subject to judicial review. A contract that rests entirely on past consideration is unenforceable.

The contract length is the trap. Under Section 19-3-41 there is no express extended-term grant for general management contracts, so the contract is voidable by successor boards once the current board's term expires. Either limit the term to the board's current term, or carry the contract forward through successive board approvals.

For churches, nonprofits, and other potential park operators

A Mississippi county can hand you operational responsibility for a park while keeping ownership. You can keep concession and rental revenue if the contract says so. But your contract is only enforceable through the current board's term unless a new board ratifies it. Build a renewal sequence into the deal so a new board's transition does not strand your investment.

If the contract recognizes past investment as part of consideration, also build in present or future consideration so the contract is enforceable on its face.

For grant-makers and federal funders working with Mississippi counties

The 2009 quitclaim sequence in this opinion is a recurring pattern: a federal grant program prohibits reverters, so the donor releases its reversionary interest to make the property fully alienable. That quitclaim eliminates the original donor's automatic snap-back, but it does not eliminate the donor's standing to bid, lease, or contract on the property going forward. A future divestiture is governed by Section 19-7-3, not by the original deed.

Common questions

What does Section 19-7-3 require before a county can sell a park?

Three findings, all spread on the minutes: (a) the property is no longer needed for county purposes and is not to be used in operating the county; (b) the ordinary statutory sale process is not necessary or desirable for the county's financial welfare; and (c) the sale, conveyance, or lease will promote and foster community development and the civic, social, educational, cultural, moral, economic, or industrial welfare of the area. Section 19-7-3(4).

What is the bid process under Section 19-7-3(2)(a)?

Before any lease, deed, or conveyance, the board must publish notice once a week for three consecutive weeks in a newspaper of the county (or having general circulation in the county if no county paper exists), stating the intent to sell or lease and accepting sealed competitive bids. After receiving bids, the board can reject all bids, accept the highest and best, or hold an auction starting at the highest bid received. No bidder receives preference at the auction.

Can the county "just pick" a bid it prefers from the bids received?

No. The board's options after advertising are reject all bids, accept the highest and best, or hold an auction. Selecting a non-highest bid would not satisfy Section 19-7-3(2)(a).

Can the county recognize the Church's past investment as part of the consideration for selling or leasing the park back to the Church?

Past consideration generally does not support a contract on its own. Marshall Durbin Food Corp. v. Baker, 909 So. 2d 1267 (Miss. Ct. App. 2005), explains that a contract founded "partly on a past consideration and partly on an executory consideration is enforceable, although in a sense no resort to the past consideration need be had as the new or executory consideration is conceptually adequate to support enforceability of the contract." So the board can pair past consideration with present or future consideration, and what is "good and valuable consideration" is the board's discretionary call (subject to judicial review).

Instead of selling, can the county let the Church just run the park while keeping ownership?

Yes. Section 19-3-41 gives counties general contracting authority. A management or operational agreement, with general rules and regulations established by the County and the park remaining open to the public, fits within that authority. See MS AG Op., Gex (June 16, 1993) (county could contract with a youth soccer league to manage the county youth soccer program).

Under such a management agreement, can the church keep concession or rental income?

Yes if the contract authorizes it. MS AG Op., Brabham (Aug. 7, 2009), held that a municipality with a management contract with a nonprofit to operate a park can authorize concession charges with proceeds retained by the nonprofit to defray its expenses.

Can such a contract bind future boards?

Not unless there is express statutory authority for an extended term. Northeast Mental Health-Mental Retardation Comm'n v. V.M. Cleveland, 187 So. 3d 601, 605 (Miss. 2016), restates the rule that contracts beyond the current governing body's term are voidable at the discretion of successor boards. Section 19-3-41 does not include an extended-term provision for general management contracts.

Background and statutory framework

Section 19-7-3 is Mississippi's county property disposition statute. Subsection (1) authorizes sale, conveyance, or lease of real estate that has ceased to be used for county purposes. Subsection (2)(a) prescribes the advertise-and-bid procedure. Subsection (4) lists the formal findings the board must make: property no longer needed for county or related purposes, ordinary statutory sale not necessary for the county's financial welfare, and the use of the property as proposed will foster community development.

Section 19-3-41 is the general contracting authority for counties. It supports management and operational agreements with private parties (including churches and nonprofits), subject to ordinary contract rules and the successor-board doctrine.

The successor-body rule. Northeast Mental Health-Mental Retardation Comm'n v. V.M. Cleveland, 187 So. 3d 601 (Miss. 2016), governs the durability of public-body contracts. A contract that extends beyond the current board's term, without express statutory authority, is voidable by successor boards.

Past versus present consideration. Marshall Durbin Food Corp. v. Baker, 909 So. 2d 1267 (Miss. Ct. App. 2005), allows a contract founded partly on past consideration to be enforced if present or future consideration is also present.

Citations

• Miss. Code Ann. § 19-7-3
• Miss. Code Ann. § 19-3-41
• Marshall Durbin Food Corp. v. Baker, 909 So. 2d 1267 (Miss. Ct. App. 2005)
• Northeast Mental Health-Mental Retardation Comm'n v. V.M. Cleveland, 187 So. 3d 601 (Miss. 2016)
• MS AG Op., Williams (Dec. 23, 2004)
• MS AG Op., Dukes (Aug. 6, 2010)
• MS AG Op., Brabham (Aug. 7, 2009)
• MS AG Op., Gex (June 16, 1993)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2024/10/2024-00084-Webb.pdf

Original opinion text

September 18, 2024

Jeffrey T. Webb, Esq.
Attorney, Leake County Board of Supervisors
Post Office Box 452
Carthage, Mississippi 39051
Re:

Relinquishing Ownership and/or Control of Park Property to Relieve the
County of Oversight and Maintenance Responsibilities

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

Background
You provide in your request that on August 12, 1999, the True Light Missionary Baptist Church
("Church") deeded four acres to Leake County ("County") with a reversionary clause stating that
the property "along with any improvements thereon, will automatically revert to grantor if and
when, said property ever ceases to be used for recreational purposes." On April 9, 2002, the Church
deeded an additional two acres adjoining the four acres pursuant to the same terms. In the process
of constructing a public park, the County applied for a number of grants. At least one of those
grants did not allow a reversionary clause in the deed of conveyance to the County. As a result, on
September 8, 2009, the Church executed a Quitclaim Deed conveying its reversionary interest in
the referenced six acres to the County. The property has been utilized as a county park since the
referenced deeds of conveyance. The Church and its members have assisted with multiple projects
at the park and have expended considerable resources of its own, both money and labor, for
improvements and repairs. The board of supervisors desires to relinquish ownership and/or control
of this park property and be relieved of the oversight and maintenance responsibilities.
Questions Presented
1. May the County, pursuant to Mississippi Code Annotated Section 19-7-3(1), make a
finding that the property has ceased to be used for county purposes, and then proceed to
advertise it for sale or lease after publishing for three consecutive weeks?
2. If the answer to question 1 is no, can the County close the park for a period of time and
then declare it as having ceased to be used for County purposes? The County would then
advertise for sale or lease pursuant to Section 19-7-3(1).

3. If the answer to questions 1 or 2 is in the affirmative, may the County accept any bid that
   is offered for the property after proper legal advertisement?

4. Is there any difference in the interpretation of the language in Section 19-7-3(4) regarding
   property not being used for county purposes? More specifically, under Section 19-7-3(4),
   is there any recognized distinction between the language of subsection (4)(a) which
   provides that when "any county-owned property is no longer needed for county or related
   purposes, and is not to be used in the operation of the county" as compared to Section 19-7-3(1) which states the property "shall cease to be used for county purposes?"

5. In the event the County can and does determine the property to no longer be needed for the
   operation of the County, and that the sale or lease thereof pursuant to publication is not
   necessary for one or more of the reasons set forth in Section 19-7-3(4), may the County
   take into consideration and provide credit for any improvements and repairs made to the
   park by the Church in the past in evaluating good and valuable consideration?

6. Rather than selling or leasing the property, may the County enter into a management or
   operational agreement with the Church, provided that the County prepares general rules
   and regulations for the park and the park remains open to the general public?
7. If the answer to question 6 is in the affirmative, may the Church receive any proceeds from
   concessions or rentals?
8. If the answer to question 6 is in the affirmative, is such an agreement limited to the term of
   the board of supervisors?
   Brief Response
9. Pursuant to Section 19-7-3(1), any real estate belonging to the County that has ceased to
   be used for county purposes may be sold, conveyed, or leased by the County once the
   requisite findings in Section 19-7-3(4) have been made and the processes and procedures
   in Section 19-7-3 have been followed.
10. See our response to Question 1.
11. No, the County may not accept just any bid. The County may reject all bids, accept the
    highest and best bid, or hold an auction among those who submitted bids with the starting
    bid being the highest bid received in response to the advertisement. If the County chooses
    to hold an auction, no bidder in the auction shall be shown any preference. Miss. Code
    Ann. § 19-7-3(2)(a).
12. While Section 19-7-3(1) authorizes the actions that may be taken when property is no
    longer used by the County, Section 19-7-3(4) provides the requisite findings that must be
    made in order to dispose of the property in accordance with Section 19-7-3.
13. Generally, past consideration must be accompanied by present or future consideration for
    a contract to be valid. See Marshall Durbin Food Corp. v. Baker, 909 So. 2d 1267, 1276
    (Miss. Ct. App. 2005). What is sufficient as "good and valuable consideration" is within
    the discretion of the board of supervisors. MS AG Op., Williams at *2 (Dec. 23, 2004).
14. Pursuant to its general contracting authority in Section 19-3-41, it is our opinion that the
    County could enter into an agreement for the operation and/or management of the park.
15. The County may authorize the Church to retain profits from concessions and/or rentals to
    defray the Church's expenses. See MS AG Op., Brabham at *2 (Aug. 7, 2009).
16. Governing authorities may not bind their successors in office to contracts that take away
    their successors' rights and powers as conferred by law. MS AG Op., Williams at *2 (Dec.
    23, 2004). Any contract that extends beyond the term of the governing board(s) without
    express statutory authority is voidable at the discretion of the successors. Northeast Mental
    Health-Mental Retardation Comm'n v. V.M. Cleveland, 187 So. 3d 601, 605 (Miss. 2016).
    Applicable Law and Discussion
    Section 19-7-3 provides, in pertinent part:
    (1) In case any of the real estate belonging to the county shall cease to be used for
    county purposes, the board of supervisors may sell, convey or lease the same on
    such terms as the board may elect and may, in addition, exchange the same for real
    estate belonging to any other political subdivision located within the county. In case
    of a sale on a credit, the county shall have a lien on the same for the purchase
    money, as against all persons, until paid and may enforce the lien as in such cases
    provided by law. The deed of conveyance in such cases shall be executed in the
    name of the county by the president of the board of supervisors, pursuant to an
    order of the board entered on its minutes.
    (2)(a) Before any lease, deed or conveyance is executed, the board shall publish at
    least once each week for three (3) consecutive weeks, in a public newspaper of the
    county in which the land is located, or if no newspaper be published in said county
    then in a newspaper having general circulation therein, the intention to lease or sell,
    as the case may be, the county-owned land and to accept sealed competitive bids
    for the leasing or sale. The board shall thereafter accept bids for the lease or sale.
    The board, at its option, may reject all bids or accept the highest and best bid
    received in response to the advertisement, or the board may hold an auction among
    those who submitted bids in response to the advertisement. If the board elects to
    hold an auction, no bidder shall be granted any preference. The opening bid at the
    auction shall be the highest bid received in response to the advertisement.
    .
    .
    .
    (4) Whenever the board of supervisors shall find and determine, by resolution duly
    and lawfully adopted and spread upon its minutes (a) that any county-owned
    property is no longer needed for county or related purposes and is not to be used in
    the operation of the county, (b) that the sale of the property in the manner otherwise
    provided by law is not necessary or desirable for the financial welfare of the county,
    and (c) that the use of the county property for the purpose for which it is to be sold,
    conveyed or leased will promote and foster the development and improvement of
    the community in which it is located and the civic, social, educational, cultural,
    moral, economic or industrial welfare thereof, the board of supervisors of such
    county shall be authorized and empowered, in its discretion, to sell, convey, lease,
    or otherwise dispose of same for any of the purposes set forth herein.
    (emphasis added).

Your first question asks whether the County can make the finding that the park has ceased to be
used for county purposes and proceed with selling it to relieve the County of its operation and
management responsibility. Section 19-7-3 authorizes a county to sell, convey, or lease any
property that has ceased to be used for county purposes. Therefore, so long as the property has
ceased to be used for county purposes, the County may make the requisite findings outlined in
Section 19-7-3(4) and then follow the procedures provided in Section 19-7-3 generally before
proceeding with the sale, conveyance, or leasing of the property. This answer is responsive to your
second question as well.
Your third question asks whether the County may accept any of the bids received in response to
the advertisement for sale. Section 19-7-3(2)(a) specifically requires the County to either reject all
bids, accept the highest and best bid, or hold an auction amongst all bidders with the highest bid
as the starting bid for the auction. If the County chooses to hold an auction, no bidder may be
shown any preferential treatment. Id. As a result, the County may not accept just any bid in
response to an advertisement for sale, conveyance, or lease. If the County chooses to accept a bid
in response to the advertisement, the County must accept the highest and best bid.
Your fourth question asks whether there is a distinction to be made between certain language in
Section 19-7-3(1) and Section 19-7-3(4)(a). Section 19-7-3(1) provides the authority to dispose
of property that has "cease[d] to be used for county purposes," while Section 19-7-3(4)(a) provides
the requisite findings that must be made in order to exercise the authority provided in subsection
(1). See MS AG Op., Dukes at 4 (Aug. 6, 2010).
Your fifth question asks if the County may take into consideration and provide "credit" for any
improvements and repairs made to the park by the Church in the past in evaluating "good and
valuable consideration" if the County determines the property is no longer needed for the operation
of the County and that the sale or lease thereof pursuant to publication is not necessary in
accordance with Section 19-7-3(4). "In most situations, past consideration may not serve as
consideration. However, 'a contract founded partly on a past consideration and partly on an
executory consideration is enforceable, although in a sense no resort to the past consideration need
be had as the new or executory consideration is conceptually adequate to support enforceability of
the contract.'" Marshall Durbin Food Corp. v. Baker, 909 So. 2d 1267, 1276 (Miss. Ct. App. 2005)
(internal citations omitted). Executory consideration is "consideration that is to be given only after
formation of the contract; present or future consideration as opposed to past consideration."
CONSIDERATION, BLACK'S LAW DICTIONARY (12th ed. 2024). Accordingly, in addition to any past
consideration upon which the contract is made, the parties should agree to some present or future
consideration. Regarding the present or future consideration, we have consistently opined that
what is sufficient as "good and valuable consideration" is within the discretion of the board of
supervisors. MS AG Op., Williams at 2 (Dec. 23, 2004). This remains the opinion of this office.
We note that findings on this issue are subject to judicial review. Id.
Your sixth question asks if the County may enter into an agreement with the Church for the
management and/or operation of the park. It is our opinion that the County could contract for
operation and/or management services of the park in lieu of selling, conveying, or leasing the
property pursuant to its general contracting authority provided in Section 19-3-41. See also MS
AG Op., Gex at 1 (June 16, 1993) (opining that a county, in its discretion, could contract with a
youth soccer league to manage the county youth soccer program).
Your seventh question asks whether the Church could retain profits from concessions and/or
rentals of the property should the County enter into a management/operation agreement. We have
previously said that "if [a] municipality has a management contract with a nonprofit to manage
and operate [a] park, 'the contract with the municipality may authorize the charging of admission
fees with the proceeds being retained by the nonprofit organization to defray the organization's
expenses.'" MS AG Op., Brabham at 2 (Aug. 7, 2009) (internal citations omitted). Thus, if the
County chooses to authorize the Church to retain profits from concessions and/or rentals to defray
the Church's expenses, it may do so. To the extent your question asks us to opine on the specifics
of any contract, we must decline. Opinions of this office are issued on prospective questions of
state law only pursuant to Section 7-5-25.

Your final question asks whether the County's contract for operation and/or management of the
park would be binding on successor boards. It is well established that governing authorities may
not bind their successors in office to contracts that take away their successors' rights and powers
as conferred by law. MS AG Op., Williams at *2 (Dec. 23, 2004). Any contract that extends beyond
the term of the governing board(s) without express statutory authority is voidable at the discretion
of the successors. Northeast Mental Health-Mental Retardation Comm'n v. V.M. Cleveland, 187
So. 3d 601, 605 (Miss. 2016).
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/ Abigail C. Overby
Abigail C. Overby
Special Assistant Attorney General