Can a Mississippi city use municipal labor and equipment to install a private individual's commemorative banners on city utility poles for free?

Plain-English summary

A private individual in Greenwood was selling personalized Black History Month banners to community members and businesses for $45 each. About 200 banners. The buyers got their pick of names, images, and captions. The seller asked the city to install all the banners on municipal utility and light poles using city labor and equipment, at no cost to the seller (estimated $2,000 in city labor and equipment). The city had no control over banner content or sale proceeds.

The AG said no to the donation framing. Mississippi law does not authorize a city to donate municipal resources to a private, for-profit individual. McAdams v. Perkins, the Mississippi Supreme Court case, says a municipal board cannot lawfully give away public money. Prior AG opinions extend the same principle to municipal property and equipment, which can be used only for proper municipal purposes.

But the AG also pointed at Section 17-3-1. That statute lets a municipality "set aside, appropriate and expend moneys, not to exceed one mill" of valuation for the purpose of advertising and bringing into favorable notice the opportunities, possibilities, and resources of the city. The AG treats expenditures under Section 17-3-1 as expenditures, not donations. So if the city makes the factual determination that a banner project actually advertises or promotes the city (which is the council's call, subject to judicial review), the work could potentially be done within Section 17-3-1, not as a free favor to a private seller.

The AG also addressed the second question: whether the analysis would change if the banners were donated to the city. The answer was no. Ownership of the banners is one factor in the public-purpose analysis but not determinative. Even if the banners belonged to the city, the project still has to serve a municipal purpose, not the private seller's commercial interest.

What this means for you

For mayors and city councils evaluating banner-and-pole proposals

The opinion holds that there is no authority for a city to donate the use of municipal utility and light poles, or municipal labor and equipment, to a private, for-profit individual at no cost. It holds the city must determine that a project fulfills a proper municipal purpose and is not for the benefit of a private individual. As an alternative framework, the AG points to Section 17-3-1, which lets a municipality "set aside, appropriate and expend moneys, not to exceed one mill" of valuation for advertising and bringing into favorable notice the city's opportunities and resources, treated as an expenditure rather than a donation. Whether a specific project falls within Section 17-3-1 is a factual determination for the council, subject to judicial review.

For city attorneys

The opinion holds that municipal property and equipment may be used only for a proper municipal purpose (citing McAdams v. Perkins, "a municipal board cannot lawfully give away public money," and the AG's Hunt opinion), and that Section 17-3-1 expenditures are not donations (citing Barton). It holds the council must "make a factual determination, consistent with fact and subject to judicial review, as to whether a specific project falls within the parameters of Section 17-3-1," and suggests contacting the Division of Technical Assistance in the Office of the State Auditor for guidance in making that determination.

On donating the banners to the city

The opinion holds that the answer does not change if the banners are donated to the city: ownership of the banners "may be a factor" but "is not determinative." Regardless of who owns the banners, the project must benefit the municipality and not the private individual.

Common questions

What is "one mill" of valuation?
A mill is one-tenth of one percent of assessed valuation. For a city with a $200 million assessed property valuation, one mill is roughly $200,000 per year. Section 17-3-1 caps total advertising and promotion expenditures across the year, not per project.

Does it matter if the banner content is non-commercial (just names of community members), not selling anything?
The AG's analysis focused on whether the project benefits the city or a private seller. If the banner seller is making $45 per banner from private buyers, the seller is benefiting commercially even if the banner content itself is not commercial speech. The relevant question is who profits from the installation, not what the banners say.

Could the project go forward as a city advertising expenditure?
The opinion holds it could, potentially, if the city makes the factual determination that the project falls within Section 17-3-1, that is, that it advertises and brings into favorable notice the city's opportunities and resources. That determination is the council's to make, subject to judicial review, and the AG suggested consulting the State Auditor's Division of Technical Assistance.

Does the city's lack of control over banner content matter?
The request noted the city had no control over the content of the banners or the sale proceeds. The opinion's analysis turns on whether the project benefits the municipality or the private seller; ownership of the banners is one non-determinative factor in that analysis.

Background and statutory framework

Section 7-5-25 limits the AG's authority to prospective questions of state law. The AG cannot validate or invalidate past actions, only provide guidance on what the law allows going forward.

The default rule is that municipal property and funds may only be used for proper municipal purposes. McAdams v. Perkins, 204 So. 3d 1257, 1265 (Miss. 2016) ("a municipal board cannot lawfully give away public money") (internal quotations omitted). The AG has applied that principle to municipal equipment and labor in MS AG Op., Hunt (Feb. 5, 1999).

Section 17-3-1 creates a narrow exception. It authorizes municipal governing authorities to "set aside, appropriate and expend moneys, not to exceed one mill of their respective valuation and assessment for the purpose of advertising and bringing into favorable notice the opportunities, possibilities, and resources of such municipality." Spending under Section 17-3-1 is treated as an expenditure, not a donation. MS AG Op., Barton (May 11, 2018).

Whether a particular project falls within Section 17-3-1 is a factual determination for the council, subject to judicial review. MS AG Op., Barton (Oct. 12, 2007); MS AG Op., Hammack (Apr. 18, 1997). The council's order should record the public-purpose finding and confirm the project actually advances "the moral, financial and other interests of the city."

The AG noted that even if the private individual donates the banners to the city, the analysis does not change. Banner ownership is one factor, not determinative. The project as a whole has to serve a municipal purpose.

Citations

• Miss. Code Ann. § 7-5-25 (scope of AG opinions)
• Miss. Code Ann. § 17-3-1 (municipal advertising and promotion authority, one-mill cap)
• McAdams v. Perkins, 204 So. 3d 1257, 1265 (Miss. 2016) (no donation of public money)
• MS AG Op., Hunt (Feb. 5, 1999) (municipal property and equipment for proper municipal purpose only)
• MS AG Op., Barton (May 11, 2018) (Section 17-3-1 spending is expenditure, not donation)
• MS AG Op., Barton (Oct. 12, 2007) (factual determination by council subject to judicial review)
• MS AG Op., Hammack (Apr. 18, 1997) (advancing the moral, financial and other interests of the city)
• MS AG Op., Turnage (Oct. 11, 2021) (AG opinions are prospective only)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2025/02/H.-Brock-January-31-2025-Installation-of-Private-Banners-on-Municipal-Utility-and-Light-Poles.pdf

Original opinion text

January 31, 2025

H. Donald Brock, Jr., Esq.
Attorney, City of Greenwood
Post Office Box 941
Greenwood, Mississippi 38935

Re: Installation of Private Banners on Municipal Utility and Light Poles

Dear Mr. Brock:

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

Background

You have represented the circumstances as follows: A private individual has requested that Greenwood (the "City") permit and facilitate, at no cost to the individual, the installation of temporary banners on municipal utility and light poles. In honor of Black History Month, the individual is currently selling, at a cost of $45.00 per banner, approximately 200 banners to businesses and other private individuals in the community. Purchasers may put on the banner an individual's name, image, and a caption identifying that person's contributions to the community. The City has no control over the content of the banners or the funds derived from the sales. The individual has requested that the banners be installed using municipal employees and equipment, which is estimated to cost the City approximately $2,000.00.

Questions Presented

1. Does the City have the authority to donate the use of space for the banners on municipal utility and light poles, and the use of municipal labor and equipment for installation of the banners, to a private, for-profit individual, at no cost to that individual?
2. Would your opinion change if the banners were donated to the City?

Brief Response

1. There is no authority for the City to donate the use of municipal utility and light poles or the use of municipal equipment and labor to a private, for-profit individual at no cost to the individual. Pursuant to the City's authority over its property, finances, streets, sidewalks, and parks, the City has discretion regarding projects and events that promote the City. However, the City must determine that the project fulfills a proper municipal purpose and is not for the benefit of a private individual(s).
2. See the response to your first question. While the ownership of the banners may be a factor in determining whether the project benefits a private individual(s) or benefits the City, it is not determinative of the issue. Ultimately, the City may only expend municipal funds for a proper municipal function in accordance with state law.

Applicable Law and Discussion

Pursuant to Mississippi Code Annotated Section 7-5-25, official opinions of the Attorney General are limited to prospective questions of state law only and can neither validate nor invalidate past action. See MS AG Op., Turnage at *1 (Oct. 11, 2021). Therefore, to the extent the City may have allowed individuals to place banners on municipal utility and light poles, we provide guidance for prospective application only.

As to your first question, there is no authority permitting the City to donate the use of municipal resources to a private, for-profit individual. McAdams v. Perkins, 204 So. 3d 1257, 1265 (Miss. 2016) (explaining that "a municipal board cannot lawfully give away public money.") (internal quotations and citation omitted); see MS AG Op., Hunt at *1 (Feb. 5, 1999) (opining that municipal property and equipment may only be used for a proper municipal purpose).

However, Section 17-3-1 provides that the governing authorities of a municipality "may in their discretion, set aside, appropriate and expend moneys, not to exceed one mill of their respective valuation and assessment for the purpose of advertising and bringing into favorable notice the opportunities, possibilities, and resources of such municipality. . . ." Miss. Code Ann. § 17-3-1 (emphasis added). This is considered an expenditure, not a donation. MS AG Op., Barton at *2 (May 11, 2018).

Our office has previously and consistently opined that under Section 17-3-1, municipal governing authorities have the discretionary authority to spend funds for the purposes of advertising and "advancing the moral, financial and other interests of the city." MS AG Op., Hammack at 1 (Apr. 18, 1997). However, "it is the duty of the governing authorities of the municipality to make a factual determination, consistent with fact and subject to judicial review, as to whether a specific project falls within the parameters of Section 17-3-1." MS AG Op., Barton at 1 (Oct. 12, 2007) (internal citations omitted). Should the City make the requisite factual determinations, Section 17-3-1 may provide an alternative framework to implement the project within the bounds of state law. Should the City decide to consider an expenditure pursuant to Section 17-3-1, we suggest that you contact the Division of Technical Assistance in the Office of the State Auditor for further guidance in making the requisite factual determinations.

In response to your second question, the ownership of the banners is ultimately non-determinative. Regardless of whether the individual or the City owns the banners, the project must be for the benefit of the municipality and not for the private individual(s).

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/ Caleb A. Pracht
Caleb A. Pracht
Special Assistant Attorney General