Can a Mississippi county use county equipment, labor, and materials to help a private water association with drainage repairs?

Plain-English summary

Bolivar County asked whether it could send county crews and county equipment to help a private water association deal with drainage problems on the association's property.

The default answer is no. Mississippi's county home rule statute, Section 19-3-40, gives the board of supervisors broad power to manage county affairs, but it expressly forbids using public funds, equipment, supplies, or materials for any private purpose. The AG had previously applied that bar to a county that wanted to spread gravel on a private driveway leading to a private water association's tank, and to a county that wanted to connect a public utility to a private water company's lines without consideration.

But there is a narrow exception in Section 19-5-92.1. A county may provide labor, materials, and supplies to clean or clear drainage ditches, creeks, channels, or conduits, both natural and man-made, and to prevent erosion of those features, even when they sit on private property. Two conditions: the board has to find that the work is necessary to promote public health, safety, and welfare, and that finding has to be spread on the board's minutes.

So whether Bolivar County can help with the water association's drainage problem depends on (1) whether the work is properly characterized as cleaning, clearing, or erosion-prevention of a ditch, creek, channel, or conduit, and (2) whether the board makes the public-purpose finding on its minutes. The AG would not pre-decide either of those points. They are factual decisions for the board to make.

What this means for you

For county boards of supervisors weighing requests for in-kind help

Default to no. Section 19-3-40 treats public assets used for a private benefit as a violation. If a request comes in from a private water association, a private utility, a homeowners' association, or any other non-governmental entity, run the analysis: is the work specifically authorized by some statute? If not, decline. The exposure is real. Misuse of public funds and equipment is a basis for surcharge and personal liability.

When a private-property request fits Section 19-5-92.1, walk the box: (1) is the work cleaning, clearing, or erosion-prevention of a ditch, creek, channel, or conduit? (2) is there a real public health, safety, or welfare interest, like flooding that affects nearby roads or downstream public infrastructure? (3) does the board put the finding on its minutes with enough detail that an auditor or court could see the reasoning? Documentation is what separates a defensible decision from a problem.

For county attorneys advising the board

Draft a written memo before the board votes on any in-kind work involving private property. Walk through the statutory analysis, list the facts that support the public-purpose finding, and propose minute-book language. If the public-purpose finding is thin, advise the board to decline. The State Auditor watches county equipment use closely.

For private water associations and similar nonprofits

You cannot count on county aid. The default rule prohibits it. If your situation involves drainage problems that affect more than just your property, your best path is to package a request that frames the work in Section 19-5-92.1 terms (ditch or channel work, public benefit) and ask the board to make that finding. Without the statutory hook, the county cannot help even if it wants to.

For citizens watching county spending

Public equipment and crews on private land is the kind of thing that rightly draws scrutiny. The county may have legal authority under Section 19-5-92.1, but only if the board has made the public-purpose finding on its minutes. If you do not see that finding in the minutes, ask.

Common questions

Can the county donate cash to a private water association?
No. Section 19-3-40 bars use of public funds for private purposes. Cash donations to a private entity, including a private water association, are not authorized. The exception in Section 19-5-92.1 is limited to labor, materials, and supplies for ditch and channel work, not cash transfers.

What if the county is paid for the work?
The opinion does not address paid services. Generally, county participation in private contracts is constrained by other statutes (procurement, sale of services, etc.). Talk to your county attorney about whether a fee-for-service arrangement could fit a different statutory framework.

Does the public-purpose finding have to be unanimous?
Section 19-5-92.1 says the board "determines" that the work is necessary. A majority vote of the board, recorded on the minutes, is sufficient. The minutes should reflect the determination, not just the vote.

Is there a dollar cap on the work?
The statute does not set a dollar cap, but the county still has to budget for the work and follow normal procurement rules for any materials it uses. The work also has to remain genuinely tied to drainage ditches or channels, not expand into general property maintenance.

Can the county help with a private culvert or driveway tile?
The statute lists ditches, creeks, channels, and conduits, both natural and man-made. A culvert is sometimes characterized as a conduit. A driveway crossing tile generally is not. The board should look at how the feature actually functions in the local drainage system before extending Section 19-5-92.1 coverage.

Background and statutory framework

Section 19-3-40 is Mississippi's county home rule statute. It empowers boards of supervisors to adopt orders and ordinances on county affairs, property, and finances when no specific statute already governs and the action is not inconsistent with the constitution or other state law. The statute then carves out one absolute restriction: county boards may not use public funds, equipment, supplies, or materials for any private purpose.

Earlier AG opinions read that restriction as broadly applicable. In MS AG Op., Chamberlin (Jan. 10, 2003), the AG concluded a county could not use county-owned equipment and materials to gravel a private drive leading to a private water association tank. In MS AG Op., Dulaney (Mar. 15, 2007), the AG concluded a public utility could not connect its water lines to a private utility's lines for the private utility's benefit without adequate consideration.

Section 19-5-92.1 is a narrow exception. It lets a county provide labor, materials, and supplies to clean or clear drainage ditches, creeks, channels, or conduits (natural or man-made) and to prevent erosion of those features, even on private property, if the board determines the work is necessary to promote public health, safety, and welfare of county residents. The determination is for the board to make, and falls outside the AG's opinion-writing authority under Section 7-5-25, which reaches only prospective state-law questions, not factual determinations for local bodies.

Citations

• Miss. Code Ann. § 19-3-40 (county home rule and bar on private-purpose use)
• Miss. Code Ann. § 19-5-92.1 (drainage ditch exception)
• MS AG Op., Chamberlin (Jan. 10, 2003) (no county equipment/materials for private drive to water association tank)
• MS AG Op., Dulaney (Mar. 15, 2007) (no public-utility hookup to private utility lines without consideration)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2025/01/S.-Morris-Harris-January-30-2025-Donations-to-Private-Water-Association.pdf

Original opinion text

January 30, 2025

Stephanie Morris-Harris, Esq.
Attorney, Bolivar County
P.O. Box 698
Cleveland, Mississippi 38732

Re: Donations to Private Water Association

Dear Ms. Morris-Harris:

The Office of the Attorney General has received your request for an official opinion.

Questions Presented

Does Bolivar County ("County") have the authority to provide in-kind services, such as the use of county equipment, labor, and materials to a private water association to assist with certain drainage issues and repairs?

Brief Response

Generally, counties are prohibited from using public funds, equipment, and supplies for private purposes, which would include providing in-kind services to a private water association. However, counties are allowed to "provide labor, materials, and supplies to clean or clear drainage ditches, creeks or channels or conduits, both natural and man-made and to prevent erosion of such ditches, creeks or channels" in accordance with Mississippi Code Annotated Section 19-5-92.1. Whether this exception applies to your situation is a determination for the County to make and should be spread upon the minutes of the board of supervisors.

Applicable Law and Discussion

The county home rule statute, Section 19-3-40, gives the board of supervisors "the power to adopt any orders, resolutions or ordinances with respect to county affairs, property and finances, for which no specific provision has been made by general law and which are not inconsistent with the Mississippi Constitution, the Mississippi Code of 1972, or any other statute or law of the State of Mississippi." The home rule statute further provides that "[t]his section shall not authorize the board of supervisors of a county to. . . . use any public funds, equipment, supplies or materials for any private purpose." Id. at (3). This office has previously opined that a county had "no authority to use county-owned equipment and materials to place gravel on a private drive leading to a local, private water association tank." MS AG Op., Chamberlin at 1 (Jan. 10, 2003); see also MS AG Op., Dulaney at 1 (Mar. 15, 2007) (opining that Section 19-3-40 prohibits a public utility from connecting its water lines to a privately owned utility company's water lines for the benefit of the private company without adequate consideration).

Section 19-5-92.1, however, provides one exception allowing a county to provide labor, materials, and supplies for work to a private entity. This section grants a county the discretion to "provid[e] labor, materials, and supplies to clean or clear drainage ditches, creeks or channels or conduits, both natural and man-made and to prevent erosion of such ditches, creeks or channels" on private property if the board determines "that such work and/or expenses are necessary in order to promote the public health, safety and welfare of the citizens of the county." Id. Whether this exception applies in your situation is a determination to be made by the County and is outside the scope of this opinion. Absent an applicable statutory exception, the County is prohibited from providing in-kind services to a private water association.

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/ Beebe Garrard
Beebe Garrard
Special Assistant Attorney General