MISSISSIPPI LEGISLATURE

1998 Regular Session

To: Conservation and Water Resources; Appropriations

By: Representative Livingston

House Bill 1209

AN ACT TO AMEND SECTION 29-15-9, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE LEGISLATURE SHALL APPROPRIATE MONEY FROM THE PUBLIC TRUST TIDELANDS FUND AND THAT THE COMMISSION SHALL ADMINISTER AND MANAGE THE ALLOCATION OF DISBURSEMENTS FROM THAT APPROPRIATED AMOUNT; TO PROVIDE THAT THE COMMISSION SHALL HAVE THE SOLE AUTHORITY TO ALLOCATE THE DISBURSEMENT OF FUNDS TO PROJECTS REQUESTED BY ANY POLITICAL SUBDIVISION; TO PROVIDE THAT A PERCENTAGE OF THE ANNUAL APPROPRIATION TO THE COMMISSION MAY BE USED FOR ADMINISTRATIVE COSTS IN MANAGING THE FUNDS; TO PROVIDE THAT THE COMMISSION SHALL DISBURSE FUNDS TO LOCAL TAXING AUTHORITIES TO REPLACE LOST AD VALOREM TAX REVENUES CAUSED BY THE LEASE OF PUBLIC TRUST TIDELANDS; TO PROVIDE THAT THE BALANCE OF ANY FUNDS MAY BE USED BY THE COMMISSION TO DISBURSE FUNDS TO POLITICAL SUBDIVISIONS FOR PROJECTS RELATED TO THE CONSERVATION OF THE TIDELANDS; TO PROVIDE THAT ANY REMAINING FUNDS MAY BE USED BY THE COMMISSION FOR PROGRAMS OF TIDELANDS MANAGEMENT; TO AMEND SECTION 7-7-211, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE STATE AUDITOR TO AUDIT THE DISBURSEMENT OF ANY FUNDS FROM THE PUBLIC TRUST TIDELANDS FUND; TO AMEND SECTION 29-15-7, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; AND FOR RELATED PURPOSES. 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 29-15-9, Mississippi Code of 1972, is amended as follows:

29-15-9. (1) There is hereby created in the State Treasury a special fund to be known as the "Public Trust Tidelands Fund." The fund shall be administered by the commission as trustee. Any funds derived from lease rentals of tidelands and submerged lands, except those funds derived from mineral leases, or funds heretofore specifically designated to be applied to other agencies, shall be transferred to the special fund. The State Legislature shall appropriate money from the special fund to the commission, and the commission shall administer and manage the allocation of disbursements from that appropriated amount. Any disbursements from the commission under the provisions of this section may be subject to an audit by the State Auditor, in the discretion of the Auditor or upon the written request of the Governor or any member of the State Legislature.

(2) In its role as administrator of funds derived from the special fund, the commission shall have the sole authority to manage the use of such funds, and it shall approve or disapprove allocation and disbursement of funds to projects requested by any political subdivision. Seven percent (7%) of the annual appropriation to the commission from the special fund may be used to cover the administrative costs incurred by the commission in the management of the fund. If any local taxing authorities have lost ad valorem taxes from the lease of public trust tidelands and submerged lands, the commission shall disburse funds on a pro rata basis to such authorities to replace the lost tax revenue. The balance of the funds, if any, remaining after deduction of administrative costs incurred by the commission, and after deduction of the amounts disbursed to the local taxing authorities under this subsection, may be disbursed by the commission to political subdivisions for projects related to the management and conservation of the tidelands and submerged lands.

(3) Any political subdivision seeking to use funds derived from the special fund after July 1, 1998, for a specific project shall submit a proposal to the commission requesting funds for a particular project or projects, no later than the first Monday in September before the beginning of the fiscal year in which the monies are sought. The proposal shall include the following:

(a) A description of how the project is related to the shoreline and the prudent management of the public trust tidelands and submerged lands;

(b) A long-range public access development plan, which must be approved by the commission;

(c) Proof that the political subdivision has completed any project funded before July 1, 1998, within two (2) years of the time that the project was funded initially;

(d) An application for, or proof of issuance of, a wetlands permit, in the case of any public access project that would require such a permit; and

(e) An agreement that the political subdivision shall provide twenty-five percent (25%) of the total costs of the project in matching funds, and evidence of the payment of such matching funds to the commission.

(4) After a thorough review of the project proposals submitted for a particular fiscal year, the commission shall approve or disapprove each proposal before May 1 of each year. Any political subdivision which has received the approval of the commission for a particular project or projects shall submit detailed, quarterly reports to the commission. The reports shall contain any information required by the commission and shall outline how monies disbursed by the commission to the political subdivision have been or are being expended for a particular project or projects.

(5) The balance of the funds, if any, remaining after deduction of disbursements under subsections (2) and (3) of this section shall be disbursed, in its discretion, by the commission for additional programs of tidelands management, such as conservation, reclamation, preservation, acquisition, education or the enhancement of public access to the public trust tidelands or public improvement projects as they relate to such lands.

SECTION 2. 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 prescribe, 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 subsection, 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 One Hundred Dollars ($100.00) per day 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;

(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 subsection 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 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;

(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 peace officer of this state only over those persons under indictment or at the direction of another duly authorized law enforcement agency having jurisdiction over the case. 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 subsections (d), (e) and (f) 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 subsections (d), (e) and (f). 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.

(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) Upon written request by the Governor, any member of the State Legislature, the Commission on Marine Resources, or in his discretion, the State Auditor may audit any funds disbursed from the Public Trust Tidelands Fund and received under Section 29-15-9 by any political subdivision, local taxing authority, or by any other organization or entity.

SECTION 3. Section 29-15-7, Mississippi Code of 1972, is amended as follows:

(1) The commission and the Secretary of State, in cooperation with other state agencies, shall prepare a Preliminary Map of Public Trust Tidelands. The preliminary map shall depict the boundary as the current mean high water line where shoreline is undeveloped and in developed areas or where there have been encroachments, such maps shall depict the boundary as the determinable mean high water line nearest the effective date of the Coastal Wetlands Protection Act.

(2) The state recognizes that the boundary of the public trust tidelands is ambulatory and that the natural inland expansion of tide waters over land not previously subject to the ebb and flow of the tide increases the land subject to the public trust, while natural accretion, the gradual and imperceptible accumulation of land by natural causes, and natural reliction, the increase of land by permanent withdrawal or retrocession of tidal waters by natural causes, diminish the land subject to the public trust and increase the property owned by the contiguous upland owner. Likewise, the state recognizes the common law doctrine as it pertains to such tidelands, submerged lands and riparian and littoral rights and declares such to be the law of this state.

(3) The preliminary map shall be transmitted to each of the chancery clerks of the coastal counties, and each chancery clerk shall post such map in a public place in his office. The commission and the Secretary of State shall also cause to be published in a newspaper of general circulation within each coastal county a notice announcing that a copy of the Preliminary Map of Public Trust Tidelands is available for public inspection at the office of the chancery clerk of that county, and shall post a similar notice in at least three (3) public places in each coastal county in this state. The preliminary map shall also be open to public inspection at the office of the commission and the Secretary of State.

(4) The commission and the Secretary of State shall allow sixty (60) days after publication of the preliminary map for submission of comments and/or additional documentation and may, at his discretion, revise the map accordingly. Within twenty (20) days of the completion of the period for submission of comments, the commission and the Secretary of State shall have incorporated any revisions to the Preliminary Map of Public Trust Tidelands and certify its final adoption. The certified map as finally adopted shall be published as provided hereinabove. The final certified map shall be duly recorded in the land records of the chancery clerks office in Hancock, Harrison and Jackson Counties. Upon recordation, the certified map shall be final to those properties not subject to the trust. The commission and the Secretary of State shall issue to all consenting property owners a certificate stating that the described property does not lie within the boundary of the public trust tidelands and is not subject to the trust. The commission and the Secretary of State shall duly file such certificates with the proper chancery clerks offices for recordation. In addition, the certified map shall be placed in the Secretary of State's permanent register which shall be open to public inspection. Within one hundred twenty (120) days of final adoption of the certified map, the commission and the Secretary of State shall determine those property owners whose lands are subject of the public trust and are in violation of such trust. The commission and the Secretary of State shall notify all such owners by certified mail and shall include an explanation of the procedure available to the occupant to resolve any dispute with respect to this map. The notice shall also inform occupants that after three (3) years the boundary as set forth in the certified map shall become final unless the occupant has submitted a contrary claim to the offices of the commission and the Secretary of State. Such property owner shall have six (6) months to negotiate and settle differences with the commission and the Secretary of State. The commission and the Secretary of State may allow extensions in its or his discretion. A boundary determination shall be final upon agreement of the commission and the Secretary of State and the owner and an instrument setting forth the boundary agreement shall be duly executed and recorded in the chancery court where the property is located. Any such boundary agreement shall be binding on the state and other parties thereto.

(5) If any dispute as to the location of the boundary of the public trust cannot be negotiated and settled between the affected property owners and the commission and the Secretary of State within six (6) months after notice by the state of its claim, either the state or a person claiming an interest in the property may apply to the chancery court of the county in which the property is located for a resolution of the dispute and a determination of the location of the boundary. All persons having an interest in the property subject to the dispute shall be made a party to such proceeding. In any such action, the state shall have the burden of proof by a preponderance of evidence that any such land is subject to the trust.

(6) Nothing in this section is intended to preclude any party from pursuing remedies otherwise available at law, including but not limited to those provided in Sections 11-17-1 et seq., except that if no action is taken by the occupant within three (3) years of receipt of notice as described above, the boundary as determined by the certified map shall become final.

SECTION 4. This act shall take effect and be in force from and after July 1, 1998.