Avoiding Common Pitfalls When Contracting With Public Boards In Mississippi

• Published date: 09 June 2023
• Subject Matter: Corporate/Commercial Law, Real Estate and Construction, Transport, Contracts and Commercial Law, Rail, Road & Cycling, Construction & Planning
• Law Firm: Butler Snow LLP
• Author: Mr Samuel D. Gregory

In addition to generally applicable contract law principles, special care should be taken when contracting with public boards in Mississippi. Otherwise, you may find yourself with a contract that is unenforceable or exposes you to more liability than anticipated. This article addresses (1) the ability to bind future boards, (2) the "minutes rule," and (3) whether statutes of limitations or statutes of repose apply to political subdivisions of the State.

A. Ability to bind future boards

"[T]here is a long-standing rule in Mississippi that predecessor boards generally cannot bind a successor board." Broadband Voice, LLC v. Jefferson Cnty., 348 So. 3d 305, 308 (Miss. 2022). Thus, long-term contracts that could extend into the terms of future boards are subject to being cut short. That is not to suggest that you cannot or should not enter into long-term contracts with public boards, but this issue should be carefully evaluated when doing so.

B. The "Minutes Rule"

Under the "minutes rule" or "minutes requirement," contracts with public boards must be evidenced through the board's minutes. "'[T]he entire contract need not be placed on the minutes,' [b]ut 'enough of the terms and conditions of the contract [must be] contained in the minutes for determination of the liabilities and obligations of the contracting parties without the necessity of resorting to other evidence.'" Jackson Cnty. v. KPMG, LLP, 278 So. 3d 1124 (' 11) (Miss. 2019) (quoting Wellness, Inc. v. Pearl River County Hosp., 178 So. 3d 1287, 1291 (Miss. 2015)). Recent opinions have placed the burden on private parties to ensure that their contracts are properly recorded in board minutes. See Lefoldt for Natchez Regional Medical Center Liquidation Trust v. Horne, L.L.P., 853 F.3d 804, 822 (5th Cir. 2017), as revised, (Apr. 12, 2017); Dukes v. City of Lumberton, 2019 WL 1522225, *2 (S.D. Miss. 2019).

Importantly, the "minutes rule" must be satisfied as to each public board involved. See Singing River MOB, LLC v. Jackson Cnty., 342 So. 3d 140 (Miss. 2021) (although County Board attached lease to its minutes, it was not spread upon the minutes of the Singing River Health System Board)...