Bill Text: MS HB211 | 2012 | Regular Session | Introduced
Bill Title: Sunshine Act; create for agencies hiring attorneys.
Spectrum: Partisan Bill (Republican 41-0)
Status: (Enrolled - Dead) 2012-05-09 - Due From Governor 05/26/12 [HB211 Detail]
Download: Mississippi-2012-HB211-Introduced.html
MISSISSIPPI LEGISLATURE
2012 Regular Session
To: Judiciary A
By: Representatives Gunn, Baker, Lamar, Snowden, Rogers (61st), Upshaw, Monsour, Formby, White, Martinson, Zuber, Turner, Lott, Jennings, Woods, Hamilton, Boyd, Alday, Shirley, Crawford, Eure, DeBar, Weathersby, Barton, Rushing, Morgan, Aldridge, Carpenter, Massengill, Pigott, Haney, Mettetal, Brown (20th), Mims, Staples, Hood, Denny, Chism
House Bill 211
AN ACT TO PROVIDE THAT THE GOVERNOR, LIEUTENANT GOVERNOR, SPEAKER OF THE HOUSE OF REPRESENTATIVES, ATTORNEY GENERAL, SECRETARY OF STATE, STATE TREASURER, STATE AUDITOR, COMMISSIONER OF AGRICULTURE AND COMMERCE, COMMISSIONER OF INSURANCE, AND THE EXECUTIVE DIRECTOR OF ANY STATE AGENCY, BOARD, COMMISSION, DEPARTMENT OR INSTITUTION, IS AUTHORIZED TO APPOINT OR EMPLOY SPECIAL COUNSEL TO REPRESENT THAT OFFICER OR AGENCY, BOARD, COMMISSION, DEPARTMENT OR INSTITUTION; TO PROVIDE THAT LITIGATION ON BEHALF OF A STATE AGENCY MUST RECEIVE THE APPROVAL OF THE AGENCY HEAD; TO REVISE THE AUTHORITY OF THESE OFFICERS TO RETAIN SPECIAL COUNSEL AND TO GRANT A LIMITED FUNDS REALLOCATION; TO PROVIDE THAT THE PERSONAL SERVICE CONTRACT REVIEW BOARD SHALL MAINTAIN CERTAIN CONTRACTS FOR APPOINTED OR EMPLOYED OUTSIDE COUNSEL ENTERED INTO BY THESE OFFICERS AND AGENCIES; TO AMEND SECTIONS 7-1-5, 7-5-1, 7-5-5, 7-5-7, 7-5-21, 7-5-39, 7-7-211, 7-7-225, 17-18-41, 25-9-120, 27-33-49, 27-104-17, 27-104-19, 27-104-105, 29-3-39, 31-29-23, 41-9-35, 43-11-27, 43-15-121, 43-16-21, 43-20-21, 43-27-14, 49-5-98, 53-1-47, 57-10-533, 57-61-35, 57-71-33, 57-77-39, 59-5-65, 59-17-57, 65-26-37, 69-1-14, 69-2-33, 69-27-359, 73-11-49, 73-13-39, 73-13-95, 73-15-33, 73-29-39, 73-29-43, 73-31-25, 73-36-35, 73-63-25, 75-76-25, 83-1-5, AND 97-33-109, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) For purposes of this section, "officer" means the Governor, Lieutenant Governor, Speaker of the House of Representatives, Attorney General, Secretary of State, State Treasurer, State Auditor, Commissioner of Agriculture and Commerce, Commissioner of Insurance, and executive director of any state agency, board, commission, department or institution.
(2) Any officer is authorized to appoint or employ special counsel of the officer's choice other than the attorney employed in the Office of the Attorney General and assigned by the Attorney General and other than an attorney employed in state service who may be recommended by the State Personnel Board, to represent that officer or the entity he leads or represents. An attorney appointed as special counsel who is not an attorney in the state service may be compensated on a fee basis. An attorney employed as special counsel who is an attorney in the state service shall be compensated on a salary basis. The special counsel may assist the officer in any or all legal matters, including, but not limited to, the preparation for, prosecution, or defense of any litigation in the state or federal courts or before any federal or state commission or agency in which the appointing or employing entity is a party or has an interest. The approval of the Attorney General is not required for an appointment or employment under this section. Unless compensation is paid pursuant to a contingent fee agreement, the appointed or employed special counsel's compensation shall be paid out of any funds appropriated or otherwise available to the officer.
(3) The officer is further entitled, without a determination as required in subsection (4), to retain special counsel of the officer's choice under this section if, in the officer's opinion, any conflict of interest exists with the Office of the Attorney General. If appointed special counsel has been retained under this subsection, the Attorney General shall withdraw from representation of that officer, but the Attorney General may continue to appear in any other capacity.
(4) Before an attorney may be appointed or employed as special counsel under the provisions of this section, the officer must first determine and make a written finding that the needed legal services cannot be adequately performed by the attorneys and supporting legal staff members in state service who are assigned to the officer by the Attorney General.
(5) (a) An attorney appointed as special counsel under the provisions of this subsection shall be compensated for his or her legal services on an hourly basis, unless the legal services being sought can reasonably be obtained from attorneys in the private practice of law only under a contract providing for a contingent fee, or because there are not appropriated funds available to pay the estimated amounts required under a contract providing only for the payment of hourly fees.
(b) Any contract, in which the anticipated fee is in excess of One Hundred Thousand Dollars ($100,000.00), for the legal services of appointed special counsel under this subsection shall be forwarded by the officer to the Personal Service Contract Review Board created under Section 25-9-120. Unless the officer specifies in writing to the board reasons which may negatively affect the interests of the state in relation to the matter for which the contract was executed, all such contracts shall be delivered to the board within five (5) days of the execution of the contract, and placed on the website of the board within five (5) days of the board's receipt of the contract, and such contracts shall remain on the website during the pendency of the matter for which the contract was executed. Under no circumstances shall such contracts not be submitted to the board for placement on the board's website within five (5) days of the filing of any lawsuit or appearance by such contracting law firm or attorney in the matter for which the contract was executed.
(6) The following provisions shall apply to any contract for the services of appointed special counsel:
(a) Any contract for services of special counsel, whether providing for set, hourly or contingent fees, must require that the contracting attorney or law firm appointed as special counsel keep current and complete written time and expense records that describe in detail the time and expenses incurred each day in performance of the contract.
(b) At the conclusion of the matter for which the legal services were obtained, the contracting attorney or law firm appointed as special counsel shall prepare a complete written statement that describes the outcome of the matter, states the amount of any recovery, shows the contracting attorney's or law firm's computation of the amount of all fees and expenses, and contains the final complete time and expense records required under this subsection. The officer shall keep and maintain these records, shall forward copies of these records to the Personal Service Contract Review Board, and shall provide an annual report that shall be an open and public record, detailing all litigation pursued with appointed special counsel. This report shall include a description of the litigation, name of counsel retained, description of the terms and conditions by which outside counsel was retained, compensation, a description of the outcome of the matter, the amount of recovery, the contracting attorney's or law firm's computation of the amount of all fees and expenses and the final and complete time and expense records.
(7) The officer may reallocate appropriated funds in the budget of such officer for the purpose of allowing the officer to retain appointed special counsel to pursue any legal matters consistent with this act. The officer shall notify the Legislative Budget Office of any such budget reallocation and shall ensure that the office receives timely, detailed and accurate information about the amount and use of the authority granted under this subsection.
(8) The officer shall provide a docket of all cases using appointed or employed counsel under this section to the Personal Service Contract Review Board, which must be open to the inspection of the public during normal business hours and available online. The docket shall contain the information required in Section 7-5-21.
(9) This section shall not apply to Sections 57-75-15 and 81-22-17.
SECTION 2. Section 7-1-5, Mississippi Code of 1972, is amended as follows:
7-1-5. In addition to the powers conferred and duties imposed on the Governor by the Constitution and by the laws as elsewhere provided, he shall have the powers and perform the duties following:
(a) He is the supreme executive officer of the state.
(b) He is the commander in chief of the militia of the state and may call out the militia to execute the laws, to suppress insurrections or riots, and to repel invasions.
(c) He shall see that the laws are faithfully executed.
(d) He is to supervise the official conduct of all executive and ministerial officers.
(e) He is to see that all offices are filled and the duties of the offices are performed or, in default thereof, apply such remedy as the law allows; and if the remedy is inadequate, he shall inform the Legislature at its next session.
(f) He shall make appointments and fill vacancies as prescribed by law.
(g) Whenever any suit or legal proceeding is pending that affects the title of the state to any property, or that may result in any claim against the state, he may direct the Attorney General to appear on behalf of the state and protect its interest.
(h) He may require the Attorney General, or district attorney of any district, to inquire into the affairs or management of any corporation existing under the laws of this state, or doing business in this state under the laws of the state.
(i) He may require the Attorney General to aid any district attorney in the discharge of his duties.
(j) He may offer rewards, not exceeding Two Hundred Dollars ($200.00), for persons with mental illness who have escaped and are dangerous, and such other rewards as are authorized by law.
(k) He may require any officer or board to make special reports to him upon demand in writing.
(l) He shall transact all necessary business with state officers, shall require them to be present at their respective offices at all reasonable business hours, and may require information, in writing, from any such officer relating to the duties of his office.
(m) When deemed advisable upon proceedings for the arrest in this state of fugitives from justice from other states or countries, he may commission a special officer to arrest the fugitive in any part of the state.
(n) He may bring any proper suit affecting the general public interests, in his own name for the State of Mississippi, if after first requesting the proper officer so to do, the officer refuses or neglects to do the same.
(o) He may appoint or employ special counsel in accordance with Section 1 of this act.
SECTION 3. Section 7-5-1, Mississippi Code of 1972, is amended as follows:
7-5-1. (1) The Attorney General provided for by Section 173 of the Mississippi Constitution shall be elected at the same time and in the same manner as the Governor is elected. His term of office shall be four (4) years and his compensation shall be fixed by the Legislature. He shall be the chief legal officer and advisor for the state, both civil and criminal, and is charged with managing * * * litigation on behalf of the state. Nothing in this section shall be construed as exclusive authority by the Attorney General over attorneys for an officer as defined in Section 1 of this act, except as authorized by law. No arm or agency of the state government shall bring or defend a suit against another such arm or agency without prior written approval of the Attorney General. He shall have the powers of the Attorney General at common law and, except as provided in subsection (2) of this section, is given * * * power to bring or defend a lawsuit on behalf of a state agency, the subject matter of which is of statewide interest, and he shall intervene and argue the constitutionality of any statute when notified of a challenge thereto, pursuant to the Mississippi Rules of Civil Procedure. His qualifications for office shall be as provided for chancery and circuit judges in Section 154 of the Mississippi Constitution.
(2) No legal action on behalf of any officer as defined in Section 1 of this act, including a suit to recoup funds expended by an agency, may be taken until ten (10) days' written notice of the proposed legal action is given to the officer or agency, board, commission, department or institution. Upon the expiration of the notice period, the Attorney General may institute suit with or without the consent of the officer or agency, board, commission, department or institution. If the officer or agency, board, commission, department or institution does not consent to the legal action, an appointed or employed special counsel may be retained by such officer or agency, board, commission, department or institution pursuant to Section 1 of this act.
SECTION 4. Section 7-5-5, Mississippi Code of 1972, is amended as follows:
7-5-5. (1) The Attorney General shall appoint nine (9) competent attorneys, each of whom shall be designated as an assistant attorney general. The assistants shall each possess all of the qualifications required by law of the Attorney General and shall have power and authority under the direction and supervision of the Attorney General to perform all of the duties required by law of that officer; and each shall be liable to the pains and penalties to which the Attorney General is liable. The assistants shall serve at the will and pleasure of the Attorney General, and they shall devote their entire time and attention to the duties pertaining to the department of justice as required by the general laws. The compensation of the within enumerated assistant attorneys general and all other regular assistants authorized by law shall be fixed by the Attorney General, not to exceed the compensation fixed by law for such assistants.
(2) (a) The Attorney General is hereby authorized, empowered and directed to designate three (3) of the * * * assistant attorneys general to devote their time and attention primarily to defending and aiding in the defense in all courts of any suit, filed or threatened, against the State of Mississippi, against any subdivision thereof, or against any agency or instrumentality of the state or subdivision, including all elected officials and any other officer or employee thereof. When the circumstances permit, the assistants may perform any of the Attorney General's powers and duties, including, but not limited to, engaging in lawsuits outside the state when in his opinion same would help bring about the equal application of federal laws and court decisions in every state and guaranteeing equal protection of the laws as guaranteed every citizen by the United States Constitution.
(b) To further prosecute and insure such purposes, the Attorney General is hereby further expressly authorized, empowered and directed to appoint or employ such additional special counsel as * * * may be necessary or advisable, on a fee or contract basis pursuant to the provisions of Section 1 of this act.
(3) The Attorney General may discharge any assistant attorney general, special assistant attorney general or appointed or employed special counsel hired by him at his pleasure and appoint another in his stead. The assistant attorneys general shall devote their entire time and attention to the duties pertaining to the Department of Justice under the control and supervision of the Attorney General.
SECTION 5. Section 7-5-7, Mississippi Code of 1972, is amended as follows:
7-5-7. The Governor may engage counsel to assist the Attorney General in cases to which the state is a party when, in his opinion, the interest of the state requires it, subject to the action of the Legislature in providing compensation for such services.
Pursuant to the provisions of Section 1 of this act, the Attorney General is hereby authorized and empowered to appoint and employ special counsel, on a fee or salary basis, to assist the Attorney General in the preparation for, prosecution, or defense of any litigation in the state or federal courts or before any state or federal commission or agency in which the state is a party or has an interest.
The Attorney General may designate such special counsel as special assistant attorney general, and may pay such special counsel reasonable compensation provided that he complies with the requirements of Section 1 of this act.
The Attorney General may also employ special investigators on a per diem or salary basis, to be agreed upon at the time of employment, for the purpose of interviewing witnesses, ascertaining facts, or rendering any other services that may be needed by the Attorney General in the preparation for and prosecution of suits by or against the State of Mississippi, or in suits in which the Attorney General is participating on account of same being of statewide interest.
The Attorney General may pay travel and other expenses of employees and appointees made hereunder in the same manner and amount as authorized by law for the payment of travel and expenses of state employees and officials.
The compensation of appointees and employees made hereunder shall be paid out of the Attorney General's contingent fund, or out of any other funds appropriated to the Attorney General's office.
SECTION 6. Section 7-5-21, Mississippi Code of 1972, is amended as follows:
7-5-21. The Attorney General shall keep a docket of all causes in which he is required to appear or is appearing, either through his office or through counsel retained as appointed or employed special counsel, which must * * * be open to the inspection of the public during regular business hours and must show the style of the case and the county, district, and court in which the causes have been instituted and tried, the cause number of the action, and whether they be civil or criminal. If civil, the docket must show the nature of the demand, the stage of the proceedings, the name and address of any appointed or employed special counsel, a memorandum of the judgment when prosecuted to judgment, any process issued thereon, whether satisfied or not, and if not satisfied, the return of the sheriff. If criminal, the docket must show the nature of the crime, the mode of prosecution, the stage of the proceedings, a memorandum of the sentence when prosecuted to a sentence, the execution thereof, if executed, and, if not executed, the reasons of delay or prevention. The docket information shall be available on the Attorney General's website.
SECTION 7. Section 7-5-39, Mississippi Code of 1972, is amended as follows:
7-5-39. Except as otherwise authorized in Section 1 of this act, the Attorney General shall also represent the state, in person or by his assistant, as counsel in all suits against the state in other courts than the Supreme Court at the seat of government, and he shall, in like manner, act as counsel for any of the state officers in suits brought by or against them in their official capacity, touching any official duty or trust and triable at the seat of government. He may pursue the collection of any claim or judgment in favor of the state outside of the state.
SECTION 8. Section 7-7-211, Mississippi Code of 1972, is amended as follows:
7-7-211. The department shall have the power and it shall be its duty:
(a) To identify and define for all public offices of the state and its subdivisions generally accepted accounting principles as promulgated by nationally recognized professional organizations and to consult with the State Fiscal Officer in the prescription and implementation of accounting rules and regulations;
(b) To provide best practices, for all public offices of regional and local subdivisions of the state, systems of accounting, budgeting and reporting financial facts relating to said offices in conformity with legal requirements and with generally accepted accounting principles as promulgated by nationally recognized professional organizations; to assist such subdivisions in need of assistance in the installation of such systems; to revise such systems when deemed necessary, and to report to the Legislature at periodic times the extent to which each office is maintaining such systems, along with such recommendations to the Legislature for improvement as seem desirable;
(c) To study and analyze existing managerial policies, methods, procedures, duties and services of the various state departments and institutions upon written request of the Governor, the Legislature or any committee or other body empowered by the Legislature to make such request to determine whether and where operations can be eliminated, combined, simplified and improved;
(d) To postaudit each year and, when deemed necessary, preaudit and investigate the financial affairs of the departments, institutions, boards, commissions or other agencies of state government, as part of the publication of a comprehensive annual financial report for the State of Mississippi. In complying with the requirements of this paragraph, the department shall have the authority to conduct all necessary audit procedures on an interim and year-end basis;
(e) To postaudit and, when deemed necessary, preaudit and investigate separately the financial affairs of (i) the offices, boards and commissions of county governments and any departments and institutions thereof and therein; (ii) public school districts, departments of education and junior college districts; and (iii) any other local offices or agencies which share revenues derived from taxes or fees imposed by the State Legislature or receive grants from revenues collected by governmental divisions of the state; the cost of such audits, investigations or other services to be paid as follows: Such part shall be paid by the state from appropriations made by the Legislature for the operation of the State Department of Audit as may exceed the sum of Thirty Dollars ($30.00) per man hour for the services of each staff person engaged in performing the audit or other service, which sum shall be paid by the county, district, department, institution or other agency audited out of its general fund or any other available funds from which such payment is not prohibited by law.
Each school district in the state shall have its financial records audited annually, at the end of each fiscal year, either by the State Auditor or by a certified public accountant approved by the State Auditor, except that, beginning with audits of fiscal year 2010 activity, the State Auditor shall conduct the audit of each school district at least once every four (4) years. If financial and personnel resources are not made available to the State Auditor for the purpose of ensuring that school districts are audited by the State Auditor at least once every four (4) years then, beginning with the audits of fiscal year 2010 activity, no certified public accountant shall be selected to perform the annual audit of a school district who has audited that district for three (3) or more consecutive years previously. Certified public accountants shall be selected in a manner determined by the State Auditor. The school district shall have the responsibility to pay for the audit, including the review by the State Auditor of audits performed by certified public accountants;
(f) To postaudit and, when deemed necessary, preaudit and investigate the financial affairs of the levee boards; agencies created by the Legislature or by executive order of the Governor; profit or nonprofit business entities administering programs financed by funds flowing through the State Treasury or through any of the agencies of the state, or its subdivisions; and all other public bodies supported by funds derived in part or wholly from public funds, except municipalities which annually submit an audit prepared by a qualified certified public accountant using methods and procedures prescribed by the department;
(g) To make written demand, when necessary, for the recovery of any amounts representing public funds improperly withheld, misappropriated and/or otherwise illegally expended by an officer, employee or administrative body of any state, county or other public office, and/or for the recovery of the value of any public property disposed of in an unlawful manner by a public officer, employee or administrative body, such demands to be made (i) upon the person or persons liable for such amounts and upon the surety on official bond thereof, and/or (ii) upon any individual, partnership, corporation or association to whom the illegal expenditure was made or with whom the unlawful disposition of public property was made, if such individual, partnership, corporation or association knew or had reason to know through the exercising of reasonable diligence that the expenditure was illegal or the disposition unlawful. Such demand shall be premised on competent evidence, which shall include at least one (1) of the following: (i) sworn statements, (ii) written documentation, (iii) physical evidence, or (iv) reports and findings of government or other law enforcement agencies. Other provisions notwithstanding, a demand letter issued pursuant to this paragraph shall remain confidential by the State Auditor until the individual against whom the demand letter is being filed has been served with a copy of such demand letter. If, however, such individual cannot be notified within fifteen (15) days using reasonable means and due diligence, such notification shall be made to the individual's bonding company, if he or she is bonded. Each such demand shall be paid into the proper treasury of the state, county or other public body through the office of the department in the amount demanded within thirty (30) days from the date thereof, together with interest thereon in the sum of one percent (1%) per month from the date such amount or amounts were improperly withheld, misappropriated and/or otherwise illegally expended. In the event, however, such person or persons or such surety shall refuse, neglect or otherwise fail to pay the amount demanded and the interest due thereon within the allotted thirty (30) days, the State Auditor shall have the authority and it shall be his duty to institute suit, and the Attorney General shall prosecute the same in any court of the state to the end that there shall be recovered the total of such amounts from the person or persons and surety on official bond named therein; and the amounts so recovered shall be paid into the proper treasury of the state, county or other public body through the State Auditor. In any case where written demand is issued to a surety on the official bond of such person or persons and the surety refuses, neglects or otherwise fails within one hundred twenty (120) days to either pay the amount demanded and the interest due thereon or to give the State Auditor a written response with specific reasons for nonpayment, then the surety shall be subject to a civil penalty in an amount of twelve percent (12%) of the bond, not to exceed Ten Thousand Dollars ($10,000.00), to be deposited into the State General Fund;
(h) To investigate any alleged or suspected violation of the laws of the state by any officer or employee of the state, county or other public office in the purchase, sale or the use of any supplies, services, equipment or other property belonging thereto; and in such investigation to do any and all things necessary to procure evidence sufficient either to prove or disprove the existence of such alleged or suspected violations. The Department of Investigation of the State Department of Audit may investigate, for the purpose of prosecution, any suspected criminal violation of the provisions of this chapter. For the purpose of administration and enforcement of this chapter, the enforcement employees of the Department of Investigation of the State Department of Audit have the powers of a law enforcement officer of this state, and shall be empowered to make arrests and to serve and execute search warrants and other valid legal process anywhere within the State of Mississippi. All enforcement employees of the Department of Investigation of the State Department of Audit hired on or after July 1, 1993, shall be required to complete the Law Enforcement Officers Training Program and shall meet the standards of the program;
(i) To issue subpoenas, with the approval of, and returnable to, a judge of a chancery or circuit court, in termtime or in vacation, to examine the records, documents or other evidence of persons, firms, corporations or any other entities insofar as such records, documents or other evidence relate to dealings with any state, county or other public entity. The circuit or chancery judge must serve the county in which the records, documents or other evidence is located; or where all or part of the transaction or transactions occurred which are the subject of the subpoena;
(j) In any instances in which the State Auditor is or shall be authorized or required to examine or audit, whether preaudit or postaudit, any books, ledgers, accounts or other records of the affairs of any public hospital owned or owned and operated by one or more political subdivisions or parts thereof or any combination thereof, or any school district, including activity funds thereof, it shall be sufficient compliance therewith, in the discretion of the State Auditor, that such examination or audit be made from the report of any audit or other examination certified by a certified public accountant and prepared by or under the supervision of such certified public accountant. Such audits shall be made in accordance with generally accepted standards of auditing, with the use of an audit program prepared by the State Auditor, and final reports of such audits shall conform to the format prescribed by the State Auditor. All files, working papers, notes, correspondence and all other data compiled during the course of the audit shall be available, without cost, to the State Auditor for examination and abstracting during the normal business hours of any business day. The expense of such certified reports shall be borne by the respective hospital, or any available school district funds other than minimum program funds, subject to examination or audit. The State Auditor shall not be bound by such certified reports and may, in his or their discretion, conduct such examination or audit from the books, ledgers, accounts or other records involved as may be appropriate and authorized by law;
(k) The State Auditor shall have the authority to contract with qualified public accounting firms to perform selected audits required in paragraphs (d), (e), (f) and (j) of this section, if funds are made available for such contracts by the Legislature, or if funds are available from the governmental entity covered by paragraphs (d), (e), (f) and (j). Such audits shall be made in accordance with generally accepted standards of auditing. All files, working papers, notes, correspondence and all other data compiled during the course of the audit shall be available, without cost, to the State Auditor for examination and abstracting during the normal business hours of any business day;
(l) The State Auditor shall have the authority to establish training courses and programs for the personnel of the various state and local governmental entities under the jurisdiction of the Office of the State Auditor. The training courses and programs shall include, but not be limited to, topics on internal control of funds, property and equipment control and inventory, governmental accounting and financial reporting, and internal auditing. The State Auditor is authorized to charge a fee from the participants of these courses and programs, which fee shall be deposited into the Department of Audit Special Fund. State and local governmental entities are authorized to pay such fee and any travel expenses out of their general funds or any other available funds from which such payment is not prohibited by law;
(m) Upon written request by the Governor or any member of the State Legislature, the State Auditor may audit any state funds and/or state and federal funds received by any nonprofit corporation incorporated under the laws of this state;
(n) To conduct performance audits of personal or professional service contracts by state agencies on a random sampling basis, or upon request of the State Personal Service Contract Review Board under Section 25-9-120(3);
(o) To appoint or employ special counsel pursuant to the provisions of Section 1 of this act.
SECTION 9. Section 7-7-225, Mississippi Code of 1972, is amended as follows:
7-7-225. The State Auditor * * *, when conducting agency audits, shall test to determine whether or not the state institutions of higher learning and any state agency which does not draw warrants on the Treasury have complied with the provisions of Section 1 of this act with regard to any contract for legal services.
SECTION 10. Section 17-18-41, Mississippi Code of 1972, is amended as follows:
17-18-41. (1) No member, officer or employee of the department, authority or committee while acting within the scope of their authority shall be subject to any personal liability by reason of any act or omission in connection with the exercise of any power or performance of any duty whether expressed or implied pursuant to this chapter.
(2) Except as otherwise authorized in Section 1 of this act, the Attorney General shall be the legal representative of the authority and the committee and shall provide legal advice and counsel without cost to the authority and the committee.
SECTION 11. Section 25-9-120, Mississippi Code of 1972, is amended as follows:
25-9-120. (1) Contract personnel, whether classified as contract workers or independent contractors shall not be deemed state service or nonstate service employees of the State of Mississippi, and shall not be eligible to participate in the Public Employees' Retirement System, or the state employee health plan, nor be allowed credit for personal and sick leave and other leave benefits as employees of the State of Mississippi, notwithstanding Sections 25-3-91 through 25-3-101; 25-9-101 through 25-9-151; 25-11-1 through 25-11-126; 25-11-128 through 25-11-131; 25-15-1 through 25-15-23 and for the purpose set forth herein. Contract workers, i.e., contract personnel who do not meet the criteria of independent contractors, shall be subject to the provisions of Section 25-11-127.
(2) There is hereby created the Personal Service Contract Review Board, which shall be composed of the State Personnel Director, the Executive Director of the Department of Finance and Administration, or his designee, the Commissioner of Corrections, or his designee, the Executive Director of the Mississippi Department of Wildlife and Fisheries, or his designee, and the Executive Director of the Department of Environmental Quality, or his designee. The State Personnel Director shall be chairman and shall preside over the meetings of the board. The board shall annually elect a vice chairman, who shall serve in the absence of the chairman. No business shall be transacted, including adoption of rules of procedure, without the presence of a quorum of the board. Three (3) members shall be a quorum. No action shall be valid unless approved by the chairman and two (2) other of those members present and voting, entered upon the minutes of the board and signed by the chairman. Necessary clerical and administrative support for the board shall be provided by the State Personnel Board. Minutes shall be kept of the proceedings of each meeting, copies of which shall be filed on a monthly basis with the Legislative Budget Office.
(3) The Personal Service Contract Review Board shall have the following powers and responsibilities:
(a) Promulgate rules and regulations governing the solicitation and selection of contractual services personnel including personal and professional services contracts for any form of consulting, policy analysis, public relations, marketing, public affairs, legislative advocacy services or any other contract that the board deems appropriate for oversight, with the exception of any personal service contracts entered into for computer or information technology-related services governed by the Mississippi Department of Information Technology Services, any personal service contracts entered into by the Mississippi Department of Transportation, and any contract for * * * accountant, auditor, physician, dentist, architect, engineer, veterinarian and utility rate expert services. Any such rules and regulations shall provide for maintaining continuous internal audit covering the activities of such agency affecting its revenue and expenditures as required under Section 7-7-3(6)(d), Mississippi Code of 1972;
(b) (i) Approve all personal and professional services contracts involving the expenditures of funds in excess of One Hundred Thousand Dollars ($100,000.00); and
(ii) Maintain all contracts and related documents for legal services submitted to it and perform related responsibilities in accordance with the provisions of Section 1 of this act.
(c) Develop standards with respect to contractual services personnel which require invitations for public bid, requests for proposals, record keeping and financial responsibility of contractors. The Personal Service Contract Review Board may, in its discretion, require the agency involved to advertise such contract for public bid, and may reserve the right to reject any or all bids;
(d) Prescribe certain circumstances whereby agency heads may enter into contracts for personal and professional services without receiving prior approval from the Personal Service Contract Review Board. The Personal Service Contract Review Board may establish a preapproved list of providers of various personal and professional services for set prices with which state agencies may contract without bidding or prior approval from the board;
(e) To provide standards for the issuance of requests for proposals, the evaluation of proposals received, consideration of costs and quality of services proposed, contract negotiations, the administrative monitoring of contract performance by the agency and successful steps in terminating a contract;
(f) To present recommendations for governmental privatization and to evaluate privatization proposals submitted by any state agency;
(g) To authorize personal and professional service contracts to be effective for more than one (1) year provided a funding condition is included in any such multiple year contract, except the State Board of Education, which shall have the authority to enter into contractual agreements for student assessment for a period up to ten (10) years. The State Board of Education shall procure these services in accordance with the Personal Service Contract Review Board procurement regulations;
(h) To request the State Auditor to conduct a performance audit on any personal or professional service contract;
(i) Prepare an annual report to the Legislature concerning the issuance of personal service contracts during the previous year, collecting any necessary information from state agencies in making such report.
(4) No member of the Personal Service Contract Review Board shall use his official authority or influence to coerce, by threat of discharge from employment, or otherwise, the purchase of commodities or the contracting for personal or professional services under this section.
SECTION 12. Section 27-33-49, Mississippi Code of 1972, is amended as follows:
27-33-49. Except as otherwise authorized in Section 1 of this act, the Attorney General of the state shall be the attorney for the commission and shall represent it in any proceedings before any court. In any hearing before the commission, where the services of an attorney are desired or needed, the Attorney General shall attend on behalf of the commission. The Attorney General shall construe any doubtful or conflicting provisions of this article, and his opinion shall be controlling on all officers.
SECTION 13. Section 27-104-17, Mississippi Code of 1972, is amended as follows:
27-104-17. (1) An allotment period shall be one-half (1/2) of twelve (12) months, and expenditure one-half (1/2) of the appropriated amount, unless otherwise specified in the appropriation bill or justified by the agency to the Department of Finance and Administration, and the first allotment period shall commence on July 1. Estimates shall be filed with the Department of Finance and Administration not later than the first day of the month preceding the beginning period.
* * * The Department of Finance and Administration may, in its discretion, restrict an agency to a monthly allotment period when it becomes evident that an agency's rate of expenditure to date indicates this restriction will be necessary to prevent depletion of its appropriation prior to the close of the fiscal year or when the condition of the State General Fund requires monthly monitoring and control of the rate of General Fund expenditures.
(2) Except as otherwise authorized in Section 1 of this act, and unless otherwise specified in the agency appropriation bill, in the event any emergency or unforeseen circumstances shall arise, the agency head may authorize increases in major objects of expenditure within each specific budget within each appropriation bill in total amounts not to exceed ten percent (10%) of the appropriated amount of each object, provided that other major objects of expenditure are decreased by a corresponding dollar amount. Except as otherwise authorized in Section 1 of this act, no transfers shall be authorized which increase or decrease the major object of expenditure "Salaries, Wages and Fringe Benefits," or which increase the major object of expenditure "Capital
Outlay - Equipment." The agency head shall submit written justification for the transfer to the Legislative Budget Office, the Department of Finance and Administration, and the State Auditor, on or before the fifteenth of the month prior to the effective date of the transfer. The transfer shall be effective the first working day of the month following timely submissions required herein. In cases of extreme hardship, certified in writing by the agency head and submitted with timely submissions required herein, the Executive Director of the Department of Finance and Administration, in his discretion, may authorize an earlier effective date for the transfer.
* * *
(3) No former employee who is receiving State of Mississippi retirement benefits shall be hired under contract for an amount exceeding Twenty Thousand Dollars ($20,000.00) a year without prior approval by an agency's proper governing board or authority. Upon approval of such contracts a written report shall be submitted detailing the cost and need of such contract services to the Chairmen and members of the Senate and House Appropriations Committees.
SECTION 14. Section 27-104-19, Mississippi Code of 1972, is amended as follows:
27-104-19. Except as otherwise authorized in Section 1 of this act, when an operating budget has been approved, the amount approved shall be available and shall constitute the maximum of obligations or indebtedness which may be incurred by the agency for any purpose during the allotment period to be paid from such funds.
SECTION 15. Section 27-104-105, Mississippi Code of 1972, is amended as follows:
27-104-105. The Department of Finance and Administration shall not process any warrant requested by any state agency for payment for legal services without first determining that the services and contract were approved as required by law. Contracts for legal services performed for the Mississippi Department of Transportation in eminent domain cases shall not require approval by the State Personnel Board. The State Auditor shall test for compliance with this section.
SECTION 16. Section 29-3-39, Mississippi Code of 1972, is amended as follows:
29-3-39. It shall be the duty of the board of education to survey periodically the classification of all sixteenth section land under its jurisdiction and to reclassify that land as it may deem advisable because of changes of conditions, and when any land is so reclassified, the board of education shall file a report thereof with the Secretary of State. From time to time the Secretary of State may institute proceedings to reclassify any sixteenth section lands which he may deem advisable and when any land is so reclassified, the Secretary of State shall file a report thereof with the board of education. When any land is reclassified under this section, notice thereof, rights to object thereto and rights to appeal therefrom shall be given in the same manner provided in Section 29-3-37 with reference to the original classification. * * * However, * * * all sixteenth section land shall be classified, or reclassified as is necessary, within one (1) year prior to the expiration date of any existing lease, and within sixty (60) days of the terminating of any lease of sixteenth section land by final court order. In all litigation which may result from the classification or reclassification of lands by the Secretary of State under Sections 29-3-31 through 29-3-39, the Secretary of State shall be represented by the Attorney General, who shall have control of the litigation, except as otherwise authorized in Section 1 of this act, but it shall be the duty of the various boards of education to furnish local legal assistance when requested so to do by the Attorney General.
SECTION 17. Section 31-29-23, Mississippi Code of 1972, is amended as follows:
31-29-23. Except as otherwise authorized in Section 1 of this act, the Attorney General of the State of Mississippi shall represent the State Bond Commission in issuing, selling and validating bonds herein provided for, and the bond commission is hereby authorized and empowered to expend from the proceeds derived from the sale of the bonds authorized hereunder all necessary administrative, legal and other expenses incidental and related to the issuance of bonds authorized under this chapter.
SECTION 18. Section 41-9-35, Mississippi Code of 1972, is amended as follows:
41-9-35. Notwithstanding the existence or pursuit of any other remedy, the licensing agency, may in the manner provided by law, upon the advice of the Attorney General who shall represent the licensing agency in the proceedings, except as otherwise authorized in Section 1 of this act, maintain an action in the name of the state for an injunction or other process against any person or governmental unit to restrain or prevent the establishment, conduct, management or operation of a hospital without a license as provided for in Section 41-9-11.
SECTION 19. Section 43-11-27, Mississippi Code of 1972, is amended as follows:
43-11-27. Notwithstanding the existence or pursuit of any other remedy, the licensing agency may, in the manner provided by law, upon the advice of the Attorney General who shall represent the licensing agency in the proceedings, except as otherwise authorized in Section 1 of this act, maintain an action in the name of the state for injunction or other process against any person to restrain or prevent the establishment, conduct, management or operation of an institution for the aged or infirm without a license under this chapter.
SECTION 20. Section 43-15-121, Mississippi Code of 1972, is amended as follows:
43-15-121. In addition to, and notwithstanding, any other remedy provided by law, the division may, in a manner provided by law and upon the advice of the Attorney General who shall represent the division in the proceedings, except as otherwise authorized in Section 1 of this act, maintain an action in the name of the state for injunction or other process against any person or entity to restrain or prevent the establishment, management or operation of a program or facility or performance of services in violation of this article or rules of the division.
SECTION 21. Section 43-16-21, Mississippi Code of 1972, is amended as follows:
43-16-21. Notwithstanding the existence of any other remedy, the department may, in the manner provided by law, in termtime or in vacation, upon the advice of the Attorney General who shall represent the department in the proceedings, except as otherwise authorized in Section 1 of this act, maintain an action in the name of the state for an injunction or restraining order to cease the operation of the home, and to provide for the appropriate removal of the children from the home and placement in the custody of the parents or legal guardians, the Department of Human Services, or any other appropriate entity in the discretion of the court. Such action shall be brought in the chancery court or the youth court, as appropriate, of the county in which such child residential home is located, and shall only be initiated for the following violations:
(a) Providing supervision, care, lodging or maintenance for any children in such home without filing notification in accordance with this chapter.
(b) Failure to satisfactorily comply with local health department or State Fire Marshal inspections made pursuant to Section 43-16-15, regarding the health, nutrition, cleanliness, safety, sanitation, written records and discipline policy of such home.
(c) Suspected abuse and/or neglect of the children served by such home, as defined in Section 43-21-105.
SECTION 22. Section 43-20-21, Mississippi Code of 1972, is amended as follows:
43-20-21. Notwithstanding the existence of any other remedy, the licensing agency may, in the manner provided by law, in termtime or in vacation, upon the advice of the Attorney General who shall represent the licensing agency in the proceedings, except as otherwise authorized in Section 1 of this act, maintain an action in the name of the state for an injunction or other proper remedy against any person to restrain or prevent the establishment, conduct, management or operation of a child care facility without license under this chapter, or otherwise in violation of this chapter.
SECTION 23. Section 43-27-14, Mississippi Code of 1972, is amended as follows:
43-27-14. The Department of Youth Services shall have the authority to accept any allotments of federal funds and commodities and shall manage and dispose of them in whatever manner may be required by federal law, and may take advantage of any federal programs, grants-in-aid, or other public or private assistance which may be offered or available which will accomplish or further the objectives of the department. Except as otherwise authorized in Section 1 of this act, the Attorney General shall be the legal representative of the department.
SECTION 24. Section 49-5-98, Mississippi Code of 1972, is amended as follows:
49-5-98. Except as otherwise authorized in Section 1 of this act, the Attorney General of the State of Mississippi shall represent the commission in issuing, selling and validating bonds herein provided for, and the commission may expend any sum not exceeding Fifteen Thousand Dollars ($15,000.00) from the proceeds derived from the sale of the bonds authorized hereunder to pay the cost of attorney's fees, validating, printing, and cost of delivery of bonds authorized under Sections 49-5-86 through 49-5-98.
SECTION 25. Section 53-1-47, Mississippi Code of 1972, is amended as follows:
53-1-47. (a) (i) Any person, who, for the purpose of evading the provisions of Sections 53-1-1 through 53-1-47, inclusive, or any rule, regulation or order made thereunder, shall make or cause to be made any false entry, statement of fact or omission in any report required by such sections or by any rule, regulation or order thereunder or in any account, record or memorandum kept in connection with the provisions thereof or who, for such purpose, shall mutilate, alter, conceal or falsify any such report, account, record or memorandum, shall be subject to a penalty of not more than Ten Thousand Dollars ($10,000.00) per day for each day of such violation to be assessed by the board. In determining the amount of the penalty, the board shall consider the factors specified in subsection (d) of this section. Such penalties shall be assessed according to the procedures set forth in subsection (b) of this section.
(ii) Any person, who, for the purpose of evading the provisions of Sections 53-1-1 through 53-1-47, inclusive, or any rule, regulation or order made thereunder, shall intentionally make or cause to be made any false entry, statement of fact or omission in any report required by said sections or by any rule, regulation or order thereunder or in any account, record or memorandum kept in connection with the provisions thereof or who, for such purpose, shall mutilate, alter, conceal or falsify any such report, account, record or memorandum shall be deemed guilty of a misdemeanor and shall be subject, upon conviction in any court of competent jurisdiction, to a fine of not less than Five Hundred Dollars ($500.00) nor more than One Thousand Dollars ($1,000.00), or imprisonment for a term of not less than ten (10) days nor more than six (6) months for each such violation, or both such fine and imprisonment.
(b) Any person who violates any provision of Sections 53-1-1 through 53-1-47, inclusive, or Sections 53-3-1 through 53-3-33, and 53-3-39 through 53-3-165, or any lawful rule, regulation or order of the board made hereunder, shall, in addition to any penalty for such violation that is otherwise provided for herein, be subject to a penalty of not to exceed Ten Thousand Dollars ($10,000.00) per day for each day of such violation to be assessed by the board. When any charge is filed with the board charging any person with any such violation, the board shall conduct an adjudicative proceeding in accordance with the Administrative Procedures Law. Such proceeding shall be held by not less than three (3) members of the board and a unanimous verdict of all members hearing such charge shall be necessary for conviction and in the event of a conviction all members of the board hearing such cause must agree on the penalty assessed.
Except as otherwise authorized in Section 1 of this act, the Attorney General, by his designated assistant, shall represent the board in all such proceedings. If he represents the board, the Attorney General shall also designate a member of his staff to present evidence and proof of such violation in the event such charge is contested.
All penalties assessed by the board under the provisions of this section shall have the force and effect of a judgment of the circuit court and shall be enrolled in the office of the circuit clerk and execution may be issued thereon. All such penalties paid or collected shall be paid to the State Treasurer for credit to the Special Oil and Gas Board Fund.
Any person adjudged guilty of any such violation shall have the right of appeal in accordance with the provisions of Section 53-1-39.
The payment of any penalty as provided herein shall not have the effect of changing illegal oil into legal oil, illegal gas into legal gas or illegal product into legal product, nor shall such payment have the effect of authorizing the sale or purchase or acquisition or the transportation, refining, processing or handling in any other way of such illegal oil, illegal gas or illegal product.
(c) Any person who aids or abets any other person in the violation of any provision of Sections 53-1-1 through 53-1-47, inclusive, or Sections 53-3-1 through 53-3-21, inclusive, or any rule, regulation or order made thereunder, shall be subject to the same penalties as are prescribed herein for the violation by such other person.
(d) In determining the amount of the penalty under subsection (a), (b) or (c) of this section, the board shall consider at a minimum the following factors:
(i) The willfulness of the violation;
(ii) Any damage to water, land or other natural resources of the state or their users;
(iii) Any cost of restoration and abatement;
(iv) Any economic benefit to the violator as a result of noncompliance;
(v) The seriousness of the violation, including any harm to the environment and any harm to the health and safety of the public; and
(vi) Any prior violation by such violator.
(e) The board is authorized to utilize the provisions of Section 85-7-132 to enforce penalties provided by this section.
SECTION 26. Section 57-10-533, Mississippi Code of 1972, is amended as follows:
57-10-533. Except as otherwise authorized in Section 1 of this act, the Attorney General of the State of Mississippi shall represent the seller in issuing, selling and validating bonds or notes herein provided for, and the seller is hereby authorized and empowered to expend from the proceeds derived from the sale of the bonds or notes authorized hereunder all necessary administrative, legal and other expenses incidental and related to the issuance of bonds or notes authorized under this article.
SECTION 27. Section 57-61-35, Mississippi Code of 1972, is amended as follows:
57-61-35. Except as otherwise authorized in Section 1 of this act, the Attorney General of the State of Mississippi shall represent the seller in issuing, selling and validating bonds herein provided for, and the seller is hereby authorized and empowered to expend from the proceeds derived from the sale of the bonds authorized hereunder all necessary administrative, legal and other expenses incidental and related to the issuance of bonds authorized under this chapter.
SECTION 28. Section 57-71-33, Mississippi Code of 1972, is amended as follows:
57-71-33. Except as otherwise authorized in Section 1 of this act, the Attorney General of the State of Mississippi shall represent the seller in issuing, selling and validating bonds or notes herein provided for, and the seller is hereby authorized and empowered to expend from the proceeds derived from the sale of the bonds or notes authorized hereunder all necessary administrative, legal and other expenses incidental and related to the issuance of bonds or notes authorized under this act.
SECTION 29. Section 57-77-39, Mississippi Code of 1972, is amended as follows:
57-77-39. Except as otherwise authorized in Section 1 of this act, the Attorney General of the State of Mississippi shall represent the seller in issuing, selling and validating bonds or notes herein provided for, and the seller is hereby authorized and empowered to expend from the proceeds derived from the sale of the bonds or notes authorized hereunder all necessary administrative, legal and other expenses incidental and related to the issuance of bonds or notes authorized under this chapter.
SECTION 30. Section 59-5-65, Mississippi Code of 1972, is amended as follows:
59-5-65. Except as otherwise authorized in Section 1 of this act, the Attorney General of the State of Mississippi shall represent the State Bond Commission in issuing, selling and validating bonds herein provided for. The State Bond Commission is hereby authorized and empowered to pay the costs that are incident to the sale, issuance and delivery of the bonds herein provided for, and such costs may be paid for out of the proceeds derived from the sale of such bonds.
SECTION 31. Section 59-17-57, Mississippi Code of 1972, is amended as follows:
59-17-57. Except as otherwise authorized in Section 1 of this act, the Attorney General of the State of Mississippi shall represent the State Bond Commission in issuing, selling and validating bonds herein provided for, and the board is hereby authorized and empowered to expend any sum not exceeding Fifteen Thousand Dollars ($15,000.00) from the proceeds derived from the sale of any one (1) series of bonds authorized hereunder to pay for the cost of the approving attorney's fees, validating, printing and cost of delivery of bonds authorized under this chapter.
SECTION 32. Section 65-26-37, Mississippi Code of 1972, is amended as follows:
65-26-37. Except as otherwise authorized in Section 1 of this act, the Attorney General of the State of Mississippi shall represent the Transportation Commission in issuing, selling and validating bonds herein provided for, and said Transportation Commission is hereby authorized and empowered to expend any sum not to exceed Forty Thousand Dollars ($40,000.00) on approval by the State Bond Commission from the proceeds derived from the sale of bonds authorized in subsections (1) and (2) of Section 65-26-15, or from other funds available to the Transportation Commission, to pay the cost of approving attorney's fees, validating, printing and cost of delivery of bonds authorized under this chapter.
SECTION 33. Section 69-1-14, Mississippi Code of 1972, is amended as follows:
69-1-14. (1) The Commissioner of Agriculture and Commerce is hereby authorized and empowered to employ an attorney to represent the Department of Agriculture and Commerce and to fix his compensation subject to the approval of the State Personnel Board. Said attorney shall be a full-time employee of the Department of Agriculture and Commerce and shall be furnished such office space and clerical assistance as shall be necessary. In addition to his duties with the Department of Agriculture and Commerce, said attorney shall represent the Board of Animal Health, the Mississippi State Fair Commission and the Mississippi Central Market Board. The salary and expenses of said attorney shall be paid from any funds available to the Department of Agriculture and Commerce, the Board of Animal Health, the Mississippi Fair Commission and the Mississippi Central Market Board in a ratio commensurate with the services provided by said attorney to each of the said agencies.
(2) The Department of Agriculture and Commerce, the Board of Animal Health, the Mississippi Fair Commission and the Mississippi Central Market Board are hereby authorized and empowered to expend such sums from any funds available for the purposes of paying the salary and expenses of the attorney provided for in subsection (1).
(3) In addition, the commissioner is authorized to appoint or employ special counsel pursuant to the provisions of Section 1 of this act.
SECTION 34. Section 69-2-33, Mississippi Code of 1972, is amended as follows:
69-2-33. Except as otherwise authorized in Section 1 of this act, the Attorney General of the State of Mississippi shall represent the department in issuing, selling and validating bonds or notes authorized under Sections 69-2-19 through 69-2-39 of this chapter, and the department is authorized to pay from the proceeds derived from the sale of such bonds or notes, or from other funds available to the department, the reasonable cost of approving attorney's fees, validating, printing and cost of delivery of such bonds or notes.
SECTION 35. Section 69-27-359, Mississippi Code of 1972, is amended as follows:
69-27-359. Except as otherwise authorized in Section 1 of this act, the Attorney General of the State of Mississippi shall represent the Soil and Water Conservation Commission in issuing, selling and validating bonds authorized under Sections 69-27-345 through 69-27-365, and the commission is authorized to pay from the proceeds derived from the sale of such bonds or from other funds available to the commission, the reasonable cost of approving attorney's fees, validating, printing, cost of delivery of such bonds and any other necessary costs of issuance.
SECTION 36. Section 73-11-49, Mississippi Code of 1972, is amended as follows:
73-11-49. (1) The board is authorized to select from its own membership a chairman, vice chairman and secretary-treasurer. Election of officers shall be held at the first regularly scheduled meeting of the fiscal year.
(2) All members of the board shall be reimbursed for their necessary traveling expenses and mileage incident to their attendance upon the business of the board, as provided in Section 25-3-41, and shall receive a per diem as provided in Section 25-3-69 for every day actually spent upon the business of the board, not to exceed twenty (20) days per year unless authorized by a majority vote of the board.
(3) All monies received by the board shall be paid into a special fund in the State Treasury to the credit of the board and shall be used by the board for paying the traveling and necessary expenses and per diem of the members of the board while on board business, and for paying other expenses necessary for the operation of the board in carrying out and involving the provisions of this chapter.
(4) The board shall employ an administrator of the board, who shall have complete supervision and be held responsible for the direction of the office of the board, shall have supervision over field inspections and enforcement of the provisions of this chapter, shall have such other duties as may be assigned by the board, shall be responsible and answerable to the board. The board may employ such other clerical assistants and employees as may be necessary to carry out the provisions of this chapter, and the terms and conditions of such employment shall be determined by the board in accordance with applicable state law and rules and regulations of the State Personnel Board.
(5) Except as otherwise authorized in Section 1 of this act, the board, when it shall deem necessary, shall be represented by an assistant attorney general duly appointed by the Attorney General of this state, and may also request and receive the assistance of other state agencies and county and district attorneys, all of whom are authorized to provide the assistance requested.
(6) The board shall have subpoena power in enforcing the provisions of this chapter.
(7) The board shall adopt and promulgate rules and regulations for the transaction of its business in accordance with the provisions of the Mississippi Administrative Procedures Law (Section 25-43-1 et seq.). No rule or regulation promulgated by the board affecting any person or agency outside the board shall be adopted, amended or repealed without a public hearing on the proposed action. The board shall give written notice at least thirty (30) days in advance of any meeting with respect to any proposed adoption, amendment or repeal of a rule or regulation of the board, in accordance with the Administrative Procedures Act, as well as notifying the duly elected presidents and secretaries of the Mississippi Funeral Directors Association and the Mississippi Funeral Directors and Morticians Association, or their successors.
(8) The board may designate the administrator to perform inspections under this chapter, may employ an individual to perform such inspections or may contract with any other individual or entity to perform such inspections. Any individual or entity that performs such inspections shall have the right of entry into any place in which the business or practice of funeral service and/or funeral directing is carried on or advertised as being carried on, for the purpose of inspection, for the investigation of complaints coming before the board and for such other matters as the board may direct.
(9) The board shall not adopt any rule or regulation pertaining to the transportation of dead bodies, and shall not adopt any rule or regulation requiring dead bodies to be embalmed except as required by the State Department of Health's Rule 43 or any subsequent rule adopted by the department.
SECTION 37. Section 73-13-39, Mississippi Code of 1972, is amended as follows:
73-13-39. Any person or firm who shall practice, or offer to practice, engineering in this state without being licensed in accordance with the provisions of Sections 73-13-1 through 73-13-45, or any person presenting or attempting to use as his own the certificate of licensure or seal of another, or any person who shall give any false or forged evidence of any kind to the board or to any member thereof in obtaining a certificate of licensure, or any person who shall falsely impersonate any other licensee of like or different name, or any person or firm who shall attempt to use an expired or revoked certificate of licensure, or any person or firm who shall violate any of the provisions of Sections 73-13-1 through 73-13-45, shall be guilty of a misdemeanor, and shall, upon conviction, be sentenced to pay a fine of not less than One Hundred Dollars ($100.00), nor more than Five Thousand Dollars ($5,000.00) in addition to reimbursement of investigative expenses and court costs, or suffer imprisonment for a period not exceeding three (3) months, or both. The criminal penalties provided for in this section may be assessed in addition to those civil penalties provided for in Section 73-13-37.
Unless licensed in accordance with the provisions of Sections 73-13-1 through 73-13-45, no person shall:
(a) Directly or indirectly employ, use, cause to be used or make use of any of the following terms or any combinations, variations or abbreviations thereof as a professional, business or commercial identification, title, name, representation, claim, asset or means of advantage or benefit: "engineer," "professional engineer," "licensed engineer," "registered engineer," "registered professional engineer," "licensed professional engineer," "engineered," "engineering"; or
(b) Directly or indirectly employ, use, cause to be used or make use of any letter, abbreviation, word, symbol, slogan, sign or any combinations or variations thereof which in any manner whatsoever tends or is likely to create any impression with the public or any member thereof that any person is qualified or authorized to practice engineering; or
(c) Receive any fee or compensation or the promise of any fee or compensation for performing, offering or attempting to perform any service, work, act or thing which is any part of the practice of engineering.
Any person, firm, partnership, association or corporation which shall do, offer or attempt to do any one or more of the acts or things set forth in items (a) through (c) of the preceding paragraph shall be conclusively presumed and regarded as engaged in the practice of engineering.
It shall be the duty of all duly constituted officers of the law of this state, or any political subdivision thereof, to enforce the provisions of Sections 73-13-1 through 73-13-45 and to prosecute any persons violating same. Except as otherwise authorized in Section 1 of this act, the Attorney General of the state or his assistant shall act as legal advisor of the board in carrying out the provisions of Sections 73-13-1 through 73-13-45.
SECTION 38. Section 73-13-95, Mississippi Code of 1972, is amended as follows:
73-13-95. Any person who shall practice, or offer to practice, surveying in this state without being licensed in accordance with the provisions of Sections 73-13-71 through 73-13-105, or any person presenting or attempting to use as his own the certificate of licensure or the seal of another, or any person who shall give any false or forged evidence of any kind to the board or to any member thereof in obtaining a certificate of licensure, or any person who shall falsely impersonate any other licensee of like or different name, or any person who shall knowingly attempt to use a license which has been expired for more than twelve (12) consecutive months or revoked certificate of licensure, or any person who shall violate any of the provisions of Sections 73-13-71 through 73-13-105, shall be guilty of a misdemeanor, and shall, upon conviction of a first offense of violating this section, be sentenced to pay a fine of not less than One Hundred Dollars ($100.00), nor more than Five Thousand Dollars ($5,000.00), and in addition thereto shall make restitution to the board for investigative expenses and court costs, or suffer imprisonment for a period of not exceeding three (3) months, or both. Upon any second and subsequent conviction of violating this section, such person shall be sentenced to pay a fine of not less than Five Thousand Dollars ($5,000.00), nor more than Ten Thousand Dollars ($10,000.00), or by imprisonment in the county jail for not more than one (1) year, or both. The criminal penalties provided for in this section may be assessed in addition to those civil penalties provided for in Section 73-13-37.
Unless licensed in accordance with the provisions of Sections 73-13-71 through 73-13-105, no person shall:
(a) Directly or indirectly employ, use, cause to be used or make use of any of the following terms or any combination, variations or abbreviations thereof as a professional, business or commercial identification, title, name, representation, claim, asset or means of advantage or benefit: "surveyor," "professional surveyor," "licensed surveyor," "registered surveyor," "registered professional surveyor," "licensed professional surveyor," "surveyed," "surveying," "professional land surveyor," or "licensed professional land surveyor";
(b) Directly or indirectly employ, use, cause to be used or make use of any letter, abbreviation, word, symbol, slogan, sign or any combinations or variations thereof, which in any manner whatsoever tends or is likely to create any impression with the public or any member thereof that any person is qualified or authorized to practice surveying; or
(c) Receive any fee or compensation or the promise of any fee or compensation for performing, offering or attempting to perform any service, work, act or thing which is any part of the practice of surveying.
Any person, firm, partnership, association or corporation which shall do, offer or attempt to do any one or more of the acts or things set forth in items (a) through (c) of the preceding paragraph shall be conclusively presumed and regarded as engaged in the practice of surveying.
It shall be the duty of all duly constituted officers of the law of this state, or any political subdivision thereof, to enforce the provisions of Sections 73-13-71 through 73-13-105 and to prosecute any persons violating same. Except as otherwise authorized in Section 1 of this act, the Attorney General of the state or his assistant shall act as legal adviser of the board and render such legal assistance as may be necessary in carrying out the provisions of Sections 73-13-71 through 73-13-105.
SECTION 39. Section 73-15-33, Mississippi Code of 1972, is amended as follows:
73-15-33. It is unlawful for any person, including a corporation or association, to:
(a) Sell, fraudulently obtain or furnish any nursing diploma, license, renewal of license, or record, or to aid or abet therein;
(b) Practice nursing as defined by this article under cover of any diploma, license, renewal of license, or record illegally or fraudulently obtained or signed or issued unlawfully or under fraudulent representation;
(c) Practice or offer to practice nursing as defined by this article unless duly licensed or privileged to practice under the provisions of this article;
(d) Use any title, designation or abbreviation by which a person presents to the public that he or she is a registered nurse, a licensed practical nurse or any other type of nurse, unless the person is duly licensed or privileged to practice under the provisions of this article; however, this paragraph does not prohibit a certified nurse assistant or certified nursing assistant from using the word "nurse" or "nursing" as part of his or her job title;
(e) Practice as a registered nurse or a licensed practical nurse during the time his or her license or privilege to practice issued under the provisions of this article is under suspension or revocation;
(f) Conduct a nursing education program for the preparation of registered nurses, unless the program has been accredited by the Board of Trustees of State Institutions of Higher Learning, or conduct a nursing education program for the preparation of licensed practical nurses unless the program has been accredited by the Department of Education through the Division of Vocational Education;
(g) Willfully employ unlicensed persons or persons not holding the privilege to practice, to practice as registered nurses or licensed practical nurses; or
(h) Willfully aid or abet any person who violates any provisions of this article.
Any person, firm or corporation who violates any provisions of this article shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine not less than One Hundred Dollars ($100.00) nor more than One Thousand Dollars ($1,000.00) or by imprisonment in the county jail for not less than twelve (12) months, or by both such fine and imprisonment. It shall be necessary to prove, in any prosecution under this article, only a single act prohibited by law, or a single holding out or an attempt without proving a general course of conduct in order to constitute a violation. Each violation may constitute a separate offense. Except as otherwise authorized in Section 1 of this act, it shall be the duty of the Attorney General to advise with the board in preparing charges, to assist in conducting board disciplinary hearings, to provide assistance with appropriate affidavits and other charges for filing in the appropriate court, and to assist the county or district attorney in prosecution, if any.
SECTION 40. Section 73-29-39, Mississippi Code of 1972, is amended as follows:
73-29-39. Any person dissatisfied with the action of the board in refusing his application or suspending or revoking his license, or any other action of the board, may appeal the action of the board by filing a petition within thirty (30) days thereafter in the circuit court in the county where the person resides or in the Circuit Court of Hinds County, Mississippi, and the court is vested with jurisdiction and it shall be the duty of the court to set the matter for hearing upon ten (10) days' written notice to the board and the attorney representing the board. The court in which the petition of appeal is filed shall determine whether or not a cancellation or suspension of a license shall be abated until the hearing shall have been consummated with final judgment thereon or whether any other action of the board should be suspended pending hearing, and enter its order accordingly, which shall be operative when served upon the board, and the court shall provide the attorney representing the board with a copy of the petition and order. Except as otherwise authorized in Section 1 of this act, the board shall be represented in such appeals by the district or county attorney of the county or the Attorney General, or any of their assistants. The board shall initially determine all facts, but the court upon appeal shall set aside the determination of the board if the board's determination (1) is not based upon substantial evidence upon the entire record; (2) is arbitrary or capricious; (3) is in violation of statutory requirements; or (4) was made without affording to licensee or applicant due process of law.
Actions taken by the board in suspending a license when required by Section 93-11-157 or 93-11-163 are not actions from which an appeal may be taken under this section. Any appeal of a license suspension that is required by Section 93-11-157 or 93-11-163 shall be taken in accordance with the appeal procedure specified in Section 93-11-157 or 93-11-163, as the case may be, rather than the procedure specified in this section.
SECTION 41. Section 73-29-43, Mississippi Code of 1972, is amended as follows:
73-29-43. If any person violates any provisions of this chapter, the secretary shall, upon direction of a majority of the board, in the name of the State of Mississippi, through the Attorney General of the State of Mississippi, except as otherwise authorized in Section 1 of this act, apply in any chancery court of competent jurisdiction, for an order enjoining such violation or for an order enforcing compliance with this chapter. Upon the filing of a verified petition in the court, the court, or any judge thereof, if satisfied by affidavit or otherwise that the person has violated this chapter, may issue a temporary injunction, without notice or bond, enjoining such continued violation and if it is established that the person has violated or is violating this chapter, the court, or any judge thereof, may enter a decree perpetually enjoining the violation or enforcing compliance with this chapter. In case of violation of any order or decree issued under the provisions of this section, the court, or any judge thereof, may try and punish the offender for contempt of court. Proceedings under this section shall be in addition to, and not in lieu of, all other remedies and penalties provided by this chapter.
SECTION 42. Section 73-31-25, Mississippi Code of 1972, is amended as follows:
73-31-25. The board may, in the name of the people of the State of Mississippi, through the Attorney General, except as otherwise authorized in Section 1 of this act, apply for an injunction in any court of competent jurisdiction to enjoin any person from committing any act declared to be a misdemeanor by this chapter.
If it is established that the defendant has been or is committing an act declared to be a misdemeanor by this chapter, the court, or any judge thereof, shall enter a decree perpetually enjoining the defendant from further committing that act. In case of violation of any injunction issued under the provisions of this section, the court, or any judge thereof, may summarily try and punish the offender for contempt of court. Those injunctive proceedings shall be in addition to, and not in lieu of, all penalties and other remedies provided for in this chapter.
SECTION 43. Section 73-36-35, Mississippi Code of 1972, is amended as follows:
73-36-35. Any person who practices or offers to practice the profession of forestry in this state without being registered in accordance with this chapter, or any person who uses in connection with his name, or otherwise assumes, uses or advertises any title or description tending to convey the impression that he is a registered forester without being registered in accordance with this chapter, or any person who presents or attempts to use as his own the license of another, or any person who gives any false or forged evidence of any kind to the board or any member in obtaining a license, or any person who attempts to use an expired or revoked license, or any person, firm, partnership or corporation who violates any of the provisions of this chapter and has not been issued an administrative fine by the board for the violation is guilty of a misdemeanor and, upon conviction, shall be fined not more than Five Thousand Dollars ($5,000.00) for each violation. The board, or any person or persons as may be designated by the board to act in its stead, is empowered to prefer charges for any violations of this chapter in any court of competent jurisdiction. It shall be the duty of all duly constituted officers of the law of this state to enforce the provisions of this chapter and to prosecute any persons, firms, partnerships or corporations violating same. Except as otherwise authorized in Section 1 of this act, the Attorney General of the state or his designated assistant shall act as legal advisor of the board and render such assistance as may be necessary in carrying out the provisions of this chapter.
SECTION 44. Section 73-63-25, Mississippi Code of 1972, is amended as follows:
73-63-25. Except as otherwise authorized in Section 1 of this act, the Attorney General shall be counsel and attorney for the board and shall provide any legal services as may be requested by the board from time to time. The board * * * may retain outside counsel and investigators to provide any legal and investigative assistance as may be necessary in enforcing this chapter as authorized in Section 1 of this act.
SECTION 45. Section 75-76-25, Mississippi Code of 1972, is amended as follows:
75-76-25. Except as otherwise authorized in Section 1 of this act, the Attorney General and his assistants shall represent the commission and the executive director in any proceeding to which the commission or the executive director is a party under this chapter. Except as otherwise authorized in Section 1 of this act, the Attorney General shall also advise the commission and the executive director in all other matters, including representing the commission when the commission sits in a quasi-judicial capacity.
SECTION 46. Section 83-1-5, Mississippi Code of 1972, is amended as follows:
83-1-5. The commissioner shall receive a compensation to be fixed by law. He is hereby authorized to employ a clerk and stenographer and an actuary at a salary to be fixed by law; and in addition shall be allowed a sufficient sum for traveling expenses and for extra clerical help.
Further, the commissioner may appoint or employ special counsel pursuant to the provisions of Section 1 of this act.
SECTION 47. Section 97-33-109, Mississippi Code of 1972, is amended as follows:
97-33-109. (1) The commission shall monitor the conduct or business of licensees, both on a routine scheduled and an unscheduled basis, to the extent necessary to ensure compliance with the provisions of charitable bingo game laws and regulations of the state.
(2) In carrying out its enforcement responsibilities, the commission may:
(a) Inspect and examine all premises in which charitable bingo games are conducted or supplies or equipment for such games are manufactured and distributed;
(b) Inspect all such supplies and equipment in, upon or about such premises;
(c) Seize and remove from such premises and impound such supplies and equipment for the purpose of examination and inspection pursuant to an appropriate court order;
(d) Demand access to and audit and inspect books and records of licensees for the purpose of determining compliance with laws and regulations relative to charitable bingo games;
(e) Conduct in-depth audits and investigations; and
(f) Mandate that internal controls be executed in accordance with the provisions of the Charitable Bingo Law and other applicable laws and regulations.
(3) The commission shall require licensees to maintain records and submit reports.
(4) In addition to license revocation or suspension or any criminal penalty imposed, the commission may assess a fine against any person who violates any law or regulation relative to charitable bingo games. Such a fine shall only be assessed after notice and an opportunity for a hearing to be held.
(5) All departments, commissions, boards, agencies, officers and institutions of the state, and all subdivisions thereof, shall cooperate with the commission in carrying out its enforcement responsibilities.
(6) Except as otherwise authorized in Section 1 of this act, the Attorney General shall be the attorney for the commission in regard to its duties to regulate the Charitable Bingo Law and he shall represent it in all legal proceedings and shall prosecute any civil action for a violation of the provisions of Sections 97-33-51 through 97-33-203 or the rules and regulations of the commission.
(7) It is the duty of the sheriffs, deputy sheriffs and police officers of this state to assist the commission in the enforcement of the provisions of Sections 97-33-51 through 97-33-203 and to arrest and complain against any person violating the provisions of Sections 97-33-51 through 97-33-203. It is the duty of the district attorneys of this state to prosecute all violations of the provisions of Sections 97-33-51 through 97-33-203 if requested to do so by the commission.
(8) (a) Whenever any person who is a resident of the State of Mississippi has reason to believe that a person or organization is or has violated the provisions of Sections 97-33-51 through 97-33-203 and that proceedings would be in the public interest, he may bring an action in the name of the state against such person to restrain by temporary or permanent injunction such violation, upon at least five (5) days' summons before the hearing of the action. The action shall be brought in the chancery or county court of the county in which such violation has occurred or, with consent of the parties, may be brought in the chancery or county court of the county in which the State Capitol is located. The said courts are authorized to issue temporary or permanent injunctions to restrain and prevent violations of Sections 97-33-51 through 97-33-203, and such injunctions shall be issued without bond.
(b) Any person who violates the terms of an injunction issued under this subsection shall forfeit and pay to the state a civil penalty of not more than Five Thousand Dollars ($5,000.00) per violation which shall be payable to the General Fund of the State of Mississippi. For the purposes of this subsection, the chancery or county court issuing an injunction shall retain jurisdiction, and the cause shall be continued, and in such cases the person bringing the action may petition for recovery of civil penalties.
(c) In any action brought under this subsection, if the court finds that a person is willfully violating the provisions of Sections 97-33-51 through 97-33-203, the person bringing the action, upon petition to the court, may recover on behalf of the state a civil penalty of not exceeding Five Hundred Dollars ($500.00) per violation which shall be payable to the General Fund of the State of Mississippi.
(d) No penalty authorized by this subsection shall be deemed to limit the court's powers to insure compliance with its orders, decrees and judgments, or punish for the violations thereof.
(e) For purposes of this subsection, a willful violation occurs when the party committing the violation knew or should have known that his conduct was a violation of the provisions of Sections 97-33-51 through 97-33-203.
SECTION 48. This act shall take effect and be in force from and after July 1, 2012.
