Mr. Quincy Rogers

*1 Attorney General Jim Hood received your request and assigned it to me for research and response.

*1 You inquire as to the effectiveness of a vote taken by a board of aldermen outside of a properly called meeting. Specifically, you provide the following:

*1 We preface our response by stating that this opinion is prospective in nature only and does not address actions that have already been taken by the municipality. An opinion from this office can neither validate nor invalidate any such past actions. Therefore, to the extent that your request deals with a past action, we must decline to respond with an official opinion of this office. However, by way of information only, we make the following comments for your future guidance.

*1 Transacting or conducting business of the municipality outside of a properly called meeting, which includes a telephone vote of the members of the board of aldermen, is a violation of the Open Meetings Act. While a matter may be discussed unofficially and informally over the phone by less than a quorum of the board, no authority exists which would permit a telephone vote, unless said vote was made during an official meeting of the governing authorities of a municipality.

*2 In regard to the official actions of a municipality, minutes of a meeting are the only mechanism by which a municipality speaks. MS AG Op., Hawkins (December 1, 1993). Thus, any “action” of a municipality that is not conducted in an official meeting of the governing authorities and found in its minutes would not be considered an official action of the municipality. We have previously opined that “[t]ransacting or conducting business of the municipality by telephone poll of the members of the board of aldermen is a violation of the Open Meetings Act.” MS AG Op., Brooks (February 3, 2006). The Mississippi Supreme Court in Board of Trustees of State Institutions of Higher Learning v. Mississippi Publishers Corporation, 487 So.2d 269 (Miss. 1985), provided that the “[r]equirement that official meetings be open to the public at all times may not be avoided by use of telephone polls among members of a public body to conduct official acts...” While a matter may be discussed unofficially and informally over the phone by members of the board,¹ no authority exists which would permit a telephone vote, unless said vote was made during an official meeting of the governing authorities of a municipality. MS AG Op., Smith (April 20, 1984). See also Mississippi Code Annotated Section 25-41-5. Notably, we have previously recognized the Supreme Court's position in the aforementioned Board of Trustees v. Mississippi Publishers Corp. case, that a public body may record a final vote via telephone outside of an open meeting in the limited instance in which the body has performed all of its deliberations in an open meeting and such vote is reduced to public record. However, our opinions were issued prior to legislative amendments to the Open Meetings Act, found at Sections 25-41-1 et seq., which specifically authorized meetings through teleconference means. Therefore, in light of the changes in the law, it is our opinion that all votes must now be taken in an official meeting, teleconference or otherwise.

*2 With respect to the authority of a municipality to transfer funds, dispose of surplus items or pay claims, there are specific statutory provisions regarding such action to guide governing authorities.² Any action to transfer funds by the board itself, or the mayor, would require an official action of the governing authorities in a properly called meeting and compliance with the pertinent statutory provisions. MS AG Op., Willis (March 8, 2002). Likewise, disposal of surplus personal property requires a formal finding by the board of aldermen that such property has ceased to be used for public purposes in compliance with Section 17-25-25. As to your inquiry involving the use of surplus property as compensation, we are not aware of any prohibition that would bar a municipality from using surplus property as a means of compensation to an individual who has performed services to the municipality, provided that such disposal complies with the provisions of Section 17-25-25. In regard to the payment of claims, Section 21- 39-7 requires that all claims and accounts be preserved as a permanent record by the city clerk, and Section 21-39-13 specifically requires that approval by the governing authorities be made before the issuance of a warrant or check for such claim. In fact, Section 21-39-17 provides a penalty for any expenditures made from the municipal treasury in the absence of an order authorizing such payment by the governing authorities.

*3 In response to your final inquiry, the Separation of Powers doctrine, found at Article 1, Sections 1 and 2 of the Mississippi Constitution of 1890, as interpreted by the Mississippi Supreme Court in Dye v. State, 507 So.2d 332 (1987), prohibits an individual of one branch of government from performing a function “at the core” of power belonging to either of the other two branches where the acts are “ongoing and are in the upper level of governmental affairs and have a substantial policymaking character.” Your factual scenario does not appear to involve a violation of the Separation of Powers doctrine as a member of an advisory board does not exercise core powers. See MS AG Op., Lawrence (July 17, 2009)(advisory board has no authority to exercise executive powers). However, the service on both the board of aldermen and the advisory board may create a conflict of interest. We direct you to the Ethics Commission concerning any potential conflict of interest.

*3 If we may be of further assistance, please advise.