MISSISSIPPI LEGISLATURE
2018 1st Extraordinary Session
To: Highways and Transportation
By: Senator(s) Moran, Gollott, Dearing, Simmons (13th), Carter, Blackwell, Seymour, Wiggins, Chassaniol, Jackson (11th)
AN ACT TO CREATE THE ALYCE G. CLARKE MISSISSIPPI LOTTERY LAW TO ESTABLISH A STATE LOTTERY; TO CREATE THE MISSISSIPPI LOTTERY CORPORATION TO ADMINISTER THE STATE LOTTERY; TO PROVIDE THAT THE AFFAIRS OF THE CORPORATION SHALL BE ADMINISTERED AND GOVERNED BY A BOARD OF DIRECTORS APPOINTED BY THE GOVERNOR WITH THE ADVICE AND CONSENT OF THE SENATE; TO PROVIDE THE TERMS OF OFFICE AND POWERS AND DUTIES OF THE BOARD; TO PROVIDE THAT THE MISSISSIPPI LOTTERY CORPORATION SHALL BE MANAGED BY A PRESIDENT SELECTED BY THE BOARD WITH THE APPROVAL OF THE GOVERNOR; TO PROVIDE THAT THE PRESIDENT SHALL SERVE AT THE PLEASURE OF THE BOARD; TO PROVIDE FOR THE POWERS AND DUTIES OF THE PRESIDENT; TO AUTHORIZE THE BOARD TO EMPLOY LEGAL COUNSEL; TO REQUIRE BACKGROUND INVESTIGATION OF APPLICANTS FOR EMPLOYMENT WITH THE CORPORATION; TO PROVIDE FOR THE DISPOSITION OF PROCEEDS RECEIVED FROM THE SALE OF LOTTERY TICKETS; TO PROVIDE FOR APPEALS BY RETAILERS, VENDORS OR APPLICANTS AGGRIEVED BY DECISIONS OF THE PRESIDENT OR THE BOARD OF DIRECTORS; TO PROHIBIT THE SALE OF LOTTERY TICKETS TO ANYONE UNDER THE AGE OF 21; TO PROVIDE THE MANNER IN WHICH PRIZES MAY BE PAID AND TO AUTHORIZE THE VOLUNTARY ASSIGNMENT OF PRIZES; TO PROVIDE FOR THE SELECTION OF LOTTERY TICKET RETAILERS AND THE REQUIREMENTS THAT MUST BE MET TO BECOME A RETAILER; TO PROVIDE THAT THE PROCEEDS FROM THE SALE OF LOTTERY TICKETS AND RECEIVED BY A LOTTERY RETAILER SHALL CONSTITUTE A TRUST; TO PLACE CERTAIN REQUIREMENTS ON VENDORS OF GOODS OR SERVICES NECESSARY FOR THE IMPLEMENTATION OF THE STATE LOTTERY; TO PROVIDE FOR CRIMINAL BACKGROUND INVESTIGATIONS BY THE MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY ON POTENTIAL VENDORS, POTENTIAL RETAILERS AND CERTAIN EMPLOYEES OF THE CORPORATION; TO MAKE UNLAWFUL CERTAIN ACTS WITH REGARD TO THE STATE LOTTERY; TO PROVIDE FOR THE DISPOSITION OF PROCEEDS RECEIVED FROM THE SALE OF LOTTERY TICKETS; TO PROVIDE THAT THE NET PROCEEDS COLLECTED FROM THE SALE OF LOTTERY TICKETS SHALL BE DEPOSITED INTO A LOTTERY PROCEEDS FUND CREATED IN THE STATE TREASURY FOR VARIOUS PURPOSES; TO AMEND SECTION 7-7-211, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE DEPARTMENT OF AUDIT TO REVIEW AND APPROVE ANY INDEPENDENT AUDITOR SELECTED BY THE MISSISSIPPI LOTTERY CORPORATION TO CONDUCT AN ANNUAL AUDIT OF THE CORPORATION AND TO CONDUCT AUDITS OR INVESTIGATIONS OF THE MISSISSIPPI LOTTERY CORPORATION IF IN THE OPINION OF THE STATE AUDITOR CONDITIONS JUSTIFY SUCH AUDITS OR INVESTIGATIONS; TO AMEND SECTIONS 25-9-107, 25-11-103, 25-41-3, 31-7-13, 67-1-71, 97-33-9, 97-33-11, 97-33-13, 97-33-21, 97-33-23, 97-33-31, 97-33-33, 97-33-35, 97-33-37, 97-33-39, 97-33-41, 97-33-43, 97-33-45, 97-33-47 AND 97-33-49, MISSISSIPPI CODE OF 1972, IN CONFORMITY TO THE PROVISIONS OF THIS ACT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act shall be referred to as the "Alyce G. Clarke Mississippi Lottery Law."
SECTION 2. The Legislature recognizes that the operations of a state lottery are unique activities for state government and that a corporate structure will best enable the lottery to be managed in an entrepreneurial and business-like manner. It is the intent of the Legislature that the Mississippi Lottery Corporation shall be accountable to the Governor, the Legislature, and the people of the state through a system of audits, reports, and disclosures as required by this act.
SECTION 3. As used in this act, the following words and phrases shall have the following meanings unless the context clearly requires otherwise:
(a) "Corporation" means the Mississippi Lottery Corporation.
(b) "Lottery" means any game of chance approved by the corporation and operated pursuant to this act, which utilizes the sale of paper tickets for various intrastate and multistate or multisovereign lottery games (such as Pick-3, Pick-4, Mega Millions, Powerball), and "instant tickets" as defined, but specifically excluding any form of "video lottery" or use of "video lottery terminal" as defined.
(c) "Major procurement" means any item, product or service in the amount of One Million Dollars ($1,000,000.00) or more, including, but not limited to, major advertising contracts, annuity contracts, prizes, products, and services unique to the Mississippi lottery.
(d) "Net proceeds" means gross lottery revenues minus amounts paid as prizes and expenses of operation of the lottery.
(e) "Person" means any individual, corporation, partnership, unincorporated association or other legal entity.
(f) "President" means the President of the Mississippi Lottery Corporation, who shall also serve as chief executive officer of the corporation.
(g) "Retailer" means any person with whom the corporation has contracted to sell lottery tickets to the public.
(h) "Security" means the protection of information that would provide an unfair advantage to any individual involved in the operation of the lottery, protection and preservation of the integrity of lottery games and operations, as well as measures taken to prevent crimes against the corporation and its retailers.
(i) "Vendor" means any person who has entered into a contract with the corporation.
(j) "Fiscal year" means the fiscal year used by the State of Mississippi government.
(k) "Board" means the Mississippi Lottery Corporation Board of Directors.
(l) "Instant ticket" means a lottery game in which a player scratches a coating from one or more play areas on a ticket to determine if he or she has won, as indicated by the symbols and words that are revealed.
(m) "Video lottery" and "video lottery terminal" means any electronic interactive computerized game machine or device equipped with a video screen and buttons, keys, a keyboard, touchscreen or other input device allowing input by an individual player and into which the player inserts coins, tokens, currency or other representation of value (including, but not limited to, an electronic card, ticket or other thing on which value is recorded electronically) as consideration in order for play of a game to be available, and through which, as a result of the play of a game, the player may receive free games, credits redeemable for cash or a noncash prize, or some other thing of value, whether or not received directly from the device, or nothing, determined wholly or predominantly by chance.
SECTION 4. (1) There is hereby created a state lottery, which shall be administered by a corporation which shall be known as the "Mississippi Lottery Corporation." The corporation shall be managed in such a manner that enables the people of the state to benefit from its profits and to ensure the integrity of the lottery.
(2) The existence of the corporation, which shall be domiciled in the State of Mississippi, shall begin upon the appointment of all five (5) members of the board as provided in Section 5 of this act.
(3) The exclusive venue for any action or matter against the corporation arising out of or in connection with the issuance, nonissuance, delivery or failure to deliver a lottery ticket or payment or nonpayment of a lottery prize is the county in which its corporate headquarters is located, and the circuit court for that county has exclusive jurisdiction thereof. For purposes of court costs, the corporation shall be a private corporation.
SECTION 5. (1) The affairs of the corporation shall be administered by the Mississippi Lottery Corporation Board of Directors. The board shall be composed of five (5) members appointed by the Governor, with the advice and consent of the Senate. The Commissioner of Revenue and the State Treasurer shall serve as ex officio, nonvoting members. Members appointed when the Senate is not in session shall serve only until the end of the next regular session, unless confirmed by the Senate.
(2) (a) Members of the board shall be residents of the State of Mississippi, and the Governor shall take into account the goals of geographic, racial, gender and other categories of diversity when nominating board members.
(b) Of the initial appointees, the members' terms shall be staggered as follows: one (1) term to expire on December 31, 2019; December 31, 2020; December 31, 2021; December 31, 2022; and December 31, 2023. After the expiration of the initial terms, members of the board shall serve terms of five (5) years.
(c) Members may serve beyond the end of their respective terms until their successors have been appointed and qualified. No member shall serve more than two (2) consecutive five-year terms. Members may be removed by the Governor for neglect of duty, misfeasance or nonfeasance in office. The board shall annually elect a chairman from among its voting members.
(3) Appointed members of the board shall be entitled to per diem compensation pursuant to Section 25-3-69 paid by the corporation and shall be reimbursed by the corporation for necessary travel and other reasonable expenses incurred in the performance of their official duties. No appointed member of the board shall be considered a public officer.
(4) The board, upon the initial call of the Governor and the chairman thereafter, shall meet at least monthly for the first eighteen (18) months and at such other times as the chairman may determine. Three (3) voting members of the board shall constitute a quorum. The board shall also meet upon call of three (3) or more of the voting members of the board. The board shall keep accurate and complete records of all its meetings.
(5) All meetings of the board shall be subject to the Open Meetings Act in Section 25-41-1 et seq.
SECTION 6. (1) The president of the corporation shall be appointed by the board subject to the approval of the Governor. The Governor shall, within thirty (30) days after receiving the nomination of the president in writing, either approve or reject the nomination. Failure to take either action within the required time shall constitute approval by the Governor. If the Governor rejects the nomination of the president, then the board shall submit a different nominee to the Governor. The president shall manage the daily affairs of the corporation and shall have such powers and duties as specified by this act, by the board, and any rules or regulations adopted by the board. The president shall not be a member of the board. The president shall serve at the will and pleasure of the board.
(2) The president shall employ such personnel as he or she deems necessary. All personnel shall serve at the will and pleasure of the president, unless otherwise specified by the president.
(3) The board shall set the salary of the president.
(4) No employee shall be a member of the board.
SECTION 7. (1) Except as provided under Section 12 of this act, all records of the corporation shall be deemed public records and subject to public inspection as provided by Section 25-61-1 et seq. unless:
(a) The record relates to or was provided by a confidential source or informant and relates to lottery security, applicant, vendor, or retailer qualifications or conduct;
(b) The record involves a trade secret of the corporation or of a vendor;
(c) The disclosure of the record would endanger the security of the lottery or its retailers; or
(d) The record is covered by another exemption under federal or state law.
(2) Records pertaining to the security of lottery operations, whether current or proposed, the security director, and the division handling security shall be deemed to be records containing security procedures, investigative techniques, or internal security information.
SECTION 8. (1) The board shall provide the president with private sector perspectives on the operation of a business, large marketing enterprise, and the like. The board shall:
(a) Approve, disapprove, amend or modify the budget recommended by the president for the operation of the corporation.
(b) Approve, disapprove, amend or modify the terms of major procurements recommended by the president.
(c) Serve as a board of appeals for any denial, revocation or cancellation by the president of a contract with a lottery retailer.
(d) Adopt such administrative rules and regulations as may be necessary to carry out and implement its powers and duties, the operations of the corporation, the conduct of lottery games in general and any other matters necessary or desirable for the efficient and effective operation of the lottery or convenience of the public.
(2) Any policies adopted by authority of this section or any other section of this act must be published and posted on the corporation's website thirty (30) days prior to becoming effective.
SECTION 9. (1) The board shall not authorize, conduct or administer lottery games involving the use of a "video lottery terminal" as defined or any mobile or Internet-based or monitor-based interactive game, or any simulated casino-style game, including video poker, video roulette, slot machines or video blackjack, or any variant of these prohibited games.
(2) The board may adopt administrative rules and regulations for the conduct of specific lottery games and operations, including, but not limited to, administrative rules and regulations specifying:
(a) The types of lottery games to be conducted which utilize the sale of paper tickets for various intrastate and multistate or multisovereign lottery games (such as Pick-3, Pick-4, Mega Millions, Powerball) and "instant tickets" as defined.
(b) The sale price of tickets.
(c) The number and amount of prizes.
(d) The methods to be used in selling tickets for lottery games; provided, however, the corporation shall not permit any lottery game to be played or ticket to be purchased, sold or played by any method involving (i) a video lottery terminal or (ii) by any personal computer, tablet, smartphone, mobile device or other similar equipment or type of device.
(e) The methods and location of selecting or validating winning tickets.
(f) The frequency and the means of conducting drawings which shall be open to the public.
(g) The manner of payment of prizes.
(h) The frequency of games and drawings.
(i) The manner and amount of compensation to lottery retailers, except all compensation shall be uniform.
(j) Any other matters necessary to carry out this act and necessary for the efficient and effective operation of the lottery or for the convenience of the public.
(3) In all other matters, the board shall advise and make recommendations. In addition, the board shall:
(a) Conduct hearings upon complaints charging violations of this act or of administrative rules and regulations adopted by the corporation and shall conduct such other hearings as may be provided by administrative rules and regulations.
(b) Periodically, review the performance of the corporation and:
(i) Advise the president and make recommendations to him or her regarding operations of the corporation; and
(ii) Identify potential improvements in this act, the administrative rules and regulations of the corporation, and the management of the corporation.
(c) Request from the corporation any information the board determines to be relevant to its duties.
(4) Nothing in this act shall be construed to govern, affect or limit gaming operations at a licensed gaming facility nor shall this act be construed to supersede or preempt the authority of the Mississippi Gaming Commission as it relates to gaming operations occurring at a licensed gaming facility.
(5) Nothing in this act shall prohibit a licensed gaming facility under the Mississippi Gaming Commission from applying and operating as a lottery retailer under this act.
SECTION 10. (1) The corporation shall conduct and administer lottery games to result in maximization of revenues to the State of Mississippi. The corporation, its employees, and the members of the board shall provide for the efficient and effective operation of lottery games which ensure the integrity of the lottery and maintain the dignity of the state and the general welfare of its citizens.
(2) The corporation, in pursuing the objectives and purposes of this act, may:
(a) Sue and be sued in its corporate name.
(b) Adopt a corporate seal and a symbol.
(c) Hold patents, copyrights, trademarks, and service marks and enforce its rights with respect thereto.
(d) Register to do business in Mississippi and appoint agents upon which process may be served.
(e) Enter into written agreements with one or more other states or sovereigns for the operation, marketing and promotion of a joint lottery or joint-lottery games.
(f) Acquire real property and make improvements thereon.
(g) Make, solicit and request proposals and offers, and execute and effectuate any and all agreements or contracts, including, but not limited to:
(i) Contracts that provide for the placement of commercial advertising on tickets.
(ii) Contracts for the purchase and/or lease of real property as are necessary for the operation and promotion of the lottery.
(iii) Any contract and/or agreement necessary for the implementation, operation, and promotion of the lottery and this act.
(h) Adopt and amend such bylaws, rules and regulations, with the approval of the board as it deems necessary to administer this act.
(3) The corporation shall:
(a) Supervise and administer the lottery in accordance with the provisions of this act and the administrative rules and regulations adopted by the board.
(b) Submit quarterly and annual reports to the Governor, the Lieutenant Governor, the Speaker of the House of Representatives, the State Treasurer, the State Auditor, the Joint Legislative Committee on Performance Evaluation and Expenditure Review, and the Commissioner of Revenue containing financial information and projections which include, but are not limited to, disclosure of gross revenues, expenses and net proceeds for the period.
(c) Adopt by administrative rules and regulations a system of continuous internal audits.
(d) Maintain weekly or more frequent records of lottery transactions, including distribution of tickets to lottery retailers, revenues received, claims for prizes, prizes paid and all other financial transactions of the corporation.
(e) Adopt by administrative rules and regulations a code of ethics for officers and employees of the corporation to carry out the standards of conduct established by this act.
(f) Adopt by administrative rules and regulations guidelines for the disposal of lottery property if the corporation is dissolved.
(4) There shall be no liability on the part of, and no cause of action shall arise against, the corporation, its governing board, staff, agents, vendors, or employees, arising out of or in connection with the issuance, failure to issue, or delivery of a lottery ticket.
SECTION 11. (1) The president, as chief executive officer of the corporation, shall direct and supervise all administrative and technical activities in accordance with the provisions of this act and within the administrative rules and regulations adopted by the board. The president shall:
(a) Supervise and administer the operation of the corporation, the lottery and its games.
(b) Employ and direct such personnel as may be necessary to carry out the purposes of this act and utilize such services, personnel or facilities of the corporation as he or she may deem necessary.
(c) Contract in accordance with the administrative rules and regulations adopted by the corporation with lottery retailers.
(d) Make available for inspection by the board or any member of the board, upon request, all books, records, files, and other information and documents of his or her office and to advise the board and recommend such administrative rules and regulations and other matters he or she deems necessary and advisable to improve the operation and administration of the lottery.
(e) Subject to the limitations under Section 35 of this act, enter into any contract pursuant to this act with any person for the promotion and operation of the lottery or for the performance of any of the functions as provided in this act or administrative rules and regulations adopted by the board.
(f) Attend meetings of the board or appoint a designee to attend on his or her behalf.
(g) Not later than thirty (30) days before the beginning of the corporation's fiscal year, submit the proposed annual budget of the corporation and projected net proceeds to the board for review and approval. In addition, the proposed annual budget of the corporation shall include a personnel table reporting information for each full-time and part-time permanent position, as follows:
(i) The position title and the salary for each position in the existing operating budget for the current fiscal year, indicating whether each position is filled or vacant as of the reporting date.
(ii) The position title and the salary recommended for each position for the next fiscal year.
(2) The president, with the approval of the board, may amend or modify the budget at any time in any manner deemed necessary for the proper operation of the corporation.
(3) Following his or her approval by the Governor and during his or her entire employment by the board, the president shall reside in Mississippi.
(4) The president and the board shall conduct an ongoing examination of the operation and administration of lotteries in other states and/or countries, including reviewing available literature on the subject, of federal laws and regulations which may affect the operation of the lottery, and of the reaction of citizens of this state to existing or proposed features of lottery games with a view toward implementing improvements that will tend to serve the purposes of this act. The president may also establish one or more market or equipment research centers for lottery products and may establish lottery player information centers.
(5) The president shall require bond from corporate employees with access to corporate funds or lottery funds in such an amount as provided in the administrative rules and regulations of the board.
(6) The president may:
(a) Require bond from other employees as he or she deems necessary.
(b) For good cause, suspend, revoke or refuse to renew any contract entered into in accordance with this act or the administrative rules and regulations of the board.
(c) Upon specific or general approval of the board, conduct hearings and administer oaths to persons for the purpose of assuring the security or integrity of lottery operations, or to determine the qualifications or compliance by vendors and retailers.
(d) Upon specific or general approval of the board, enter into personal service contracts pursuant to administrative rules and regulations adopted by the board and compensate such consultants and technical assistants as may be required to carry out the provisions of this act.
(e) By agreement, secure information and services as he or she may deem necessary from any department, agency or unit of the federal, state or local government, and to the extent allowed by federal or state law, may compensate such department, agency or unit of government for its information and services.
(7) Agencies, departments or units of state government shall cooperate with the corporation to assure the integrity of the lottery and the effective operation of the lottery games.
SECTION 12. (1) The corporation may enter into intelligence sharing, reciprocal use, or restricted use agreements with the federal government, law enforcement agencies, lottery regulation agencies, and gaming enforcement agencies of other jurisdictions which provide for and regulate the use of information provided and received pursuant to the agreement.
(2) Records, documents and information in the possession of the corporation received pursuant to an intelligence sharing, reciprocal use or restricted use agreement entered into by the corporation with a federal department or agency, any law enforcement agency, or the lottery regulation or gaming enforcement agency of any jurisdiction shall be exempt from the Mississippi Public Records Act of 1983 and shall not be released by the corporation without the permission of the person or agency providing the record or information.
SECTION 13. The board may employ an attorney and/or may contract with outside counsel when the board determines the need for such counsel.
SECTION 14. (1) The corporation may enter into contracts with any person or persons that provide for the placement of commercial advertising on tickets. For purposes of this section, "commercial advertising" means advertising intended for the sole benefit of the advertiser.
(2) The nature of the advertising authorized in this section and the procedures for its acceptance as well as the implementation of this section shall be provided by administrative rules and regulations adopted by the board. The board shall retain, in its discretion, the authority to accept or reject any bid. Advertisements for tobacco and alcohol products shall not be accepted.
(3) Implementation of this section shall be in the manner provided in the administrative rules and regulations adopted by the board.
SECTION 15. (1) The corporation shall establish and maintain a personnel program, including administrative rules and regulations for its employees. The corporation may procure benefit programs or group insurance plans and shall provide or arrange for a retirement plan. Unless otherwise specified by the president, employees of the corporation shall serve at the will and pleasure of the president who shall determine their compensation and benefits. The employees shall be subject to suspension, dismissal, reduction in pay, demotion, transfer, or other personnel action at the discretion of the president and shall not be subject to civil service provisions. The compensation of officers at the division head level and above shall be determined by the board. Corporation employees shall not be considered employees of the State of Mississippi.
(2) No board member, officer or employee of the corporation or any spouse, sibling, ascendant or descendant of a board member, officer or employee shall have a financial interest in any vendor doing business or proposing to do business with the corporation.
(3) No board member, officer or employee of the corporation with decision-making authority shall participate in any decision involving a lottery retailer with whom the board member, officer or employee or any spouse, sibling, ascendant or descendant of such board member, officer or employee has a financial interest.
(4) No officer or employee of the corporation who leaves the employ of the corporation nor any board member may represent any vendor or lottery retailer before the corporation for a period of one (1) year following termination of employment with the corporation or membership on the board.
SECTION 16. (1) A background investigation shall be conducted by the security director of the corporation or his or her agent or designee on every applicant who has reached the final selection process prior to employment by the corporation. The background investigation shall include testing the applicants for the presence of illegal controlled substances. Applicants shall be fingerprinted as a condition of employment. In addition, all division chiefs and deputy chiefs, directors of the corporation, and employees of the corporation performing duties primarily related to security matters, and other employee positions prior to employment as determined by the board, shall be subject to a background investigation report conducted by the Department of Public Safety.
(2) The Department of Public Safety shall be reimbursed by the corporation for the cost of investigations conducted pursuant to this section.
(3) No person who has been convicted of a felony, bookmaking or other forms of illegal gambling, or a crime involving moral turpitude shall be employed by the corporation. The board may by administrative rules and regulations provide for a definition of moral turpitude.
SECTION 17. (1) Any lottery retailer, vendor or applicant for a lottery retailer or vendor contract aggrieved by an action of the president of the corporation may appeal that decision to the board in accordance with the administrative rules and regulations of the board.
(2) Any person aggrieved by a decision of the board may appeal the decision to the chancery court of the county in which its corporate headquarters is located within ten (10) days of the date of the decision of the board.
(3) The chancery court shall hear appeals from the board.
(4) The chancery court may remand an appeal to the board to conduct further hearings necessary to adjudicate the appeal.
(5) Any person who appeals the award of a lottery procurement for the supply of a lottery ticket shall be liable for all costs of appeal and defense in the event the appeal is denied or the contract award upheld. Costs of appeal and defense may include, but should not be limited to, court costs, bond, legal fees and loss of income to the corporation resulting from institution of the appeal if, upon the motion of the corporation, the court finds the appeal to have been frivolous.
SECTION 18. Whenever a bond is required for the protection of the corporation, letters of credit or other surety approved by the corporation may be utilized in lieu of a bond. All bonds or letters of credit shall be reviewed at least annually as to their solvency and sufficiency.
SECTION 19. The board shall promulgate administrative rules and regulations that define and prohibit the bulk sale of lottery tickets by a retailer and the bulk purchase of such tickets by an investment syndicate, investment group, or individual for investment purposes.
SECTION 20. The corporation shall require as a part of any contract for the production or printing of lottery tickets that each ticket include the toll-free telephone number of any state or national organization that provides information and referral services regarding compulsive or problem gambling.
SECTION 21. The corporation shall publish quarterly and annual financial statements, which shall be made available to the public within thirty (30) days following the close of each quarter. The quarterly and annual financial statements shall include disposition of all funds expended by the corporation for any purpose, including disclosure of any major procurements.
SECTION 22. (1) Proceeds of any lottery prize of Six Hundred Dollars ($600.00) or more shall be subject to state and federal income tax withholding laws, as applicable. Any attachments, garnishments or executions authorized and issued pursuant to law shall also be withheld if timely served upon the process agent of the corporation.
(2) The board shall adopt administrative rules and regulations to establish a system of verifying the validity of tickets claimed to win prizes and to effect payment of such prizes, except that:
(a) No prize, nor any portion of a prize, nor any right of any person to a prize awarded shall be assignable, except as provided for in Section 24 of this act. Any prize, or portion thereof, remaining unpaid at the death of a prizewinner shall be paid to the estate of the deceased prizewinner or to the trustee of a trust established by the deceased prizewinner if a copy of the trust document or instrument has been filed with the corporation, along with a notarized letter of direction from the deceased prizewinner, and no written notice of revocation has been received by the corporation prior to the deceased prizewinner's death. Following a deceased prizewinner's death and prior to any payment to such a trustee, the corporation shall obtain from the trustee and each trust beneficiary a written agreement to indemnify and hold the corporation harmless with respect to any claims that may be asserted against the corporation arising from payment to or through the trust. Notwithstanding any other provisions of this act, any person, pursuant to an appropriate judicial order, shall be paid the prize to which a winner is entitled.
(b) No ticket shall knowingly be sold to any person under the age of twenty-one (21).
(c) No prize shall be paid arising from claimed tickets that are stolen, counterfeit, altered, fraudulent, unissued, produced or issued in error, unreadable, not received, unclaimed or not recorded by the corporation within applicable deadlines, lacking in captions that conform and agree with the play symbols as appropriate to the lottery game involved, or not in compliance with such additional specific rules and public or confidential validation and security tests of the corporation appropriate to the particular lottery game involved.
(d) No particular prize in any lottery game shall be paid more than once, and in the event of a binding determination that more than one (1) claimant is entitled to a particular prize, the sole remedy of such claimants is the award to each of them an equal share in the prize.
(e) A holder of a winning ticket from a Mississippi lottery game or from a multistate or multisovereign lottery game shall claim a prize within the timeframe provided for in administrative rules and regulations. If a valid claim is not made for a prize within the applicable period, the prize shall constitute an unclaimed prize for purposes of paragraph (c) of this subsection.
(f) A person holding a winning lottery ticket in the amount of Six Hundred Dollars ($600.00) or more from a lottery game must provide his or her name and city or area of residence to the corporation to claim a prize. The corporation shall not disclose the identity of the person holding a winning lottery ticket without that person's written permission.
(3) No prize shall be paid upon a ticket purchased or sold in violation of this act. Any such prize shall constitute an unclaimed prize for purposes of subsection (2)(c) of this section.
(4) Any unclaimed prize money shall be added to the pool from which future prizes are to be awarded or used for special prize promotions.
(5) The corporation is discharged of all liability upon payment of a prize.
(6) No ticket shall be purchased by and no prize shall be paid to any of the following persons:
(a) Any member of the board;
(b) Any officer, or employee of the corporation;
(c) Any vendor, including lottery retailers; or
(d) Any spouse, child, brother, sister or parent residing as a member of the same household in the principal place of abode of any person listed in paragraph (a), (b) or (c) of this subsection.
SECTION 23. (1) The board shall coordinate with the Department of Human Services to promulgate rules and regulations providing for the withholding of lottery prizes of persons who have outstanding child support arrearages as reported to the corporation, beginning at prize levels to be determined by the board. The corporation may require any agency reporting current child support arrearages to the corporation to provide information relating to such arrearages in a manner, format or record approved by the corporation. The corporation shall not be liable for withholding a lottery prize based upon child support arrearage information provided to it. Additionally, the corporation shall employ the same methods, procedures and parameters to withhold lottery prizes for persons who have delinquent debt as submitted by a claimant agency to the Department of Revenue for recovery under Section 27-7-501 et seq. The corporation shall not be liable for withholding a lottery prize based upon delinquent debt information provided to it by the Department of Revenue.
(2) To the extent feasible, the board shall coordinate with state agencies to promulgate administrative rules and regulations providing for the withholding of lottery prizes of persons who have outstanding debts owed to the state.
SECTION 24. (1) Under an appropriate judicial order, any prize, or any portion of a prize, or any right of any person to a prize awarded, payable by the corporation in deferred annuity payments, may be paid to any person other than the winner.
(2) The right of a person to a prize payable by the corporation in deferred annuity payments may be voluntarily assigned as a whole or in part, if the assignment is made to a person designated in accordance with an order of the chancery court in the county where the corporation's headquarters is located. Any such order shall be deemed an appropriate judicial order.
(3) On the filing by the assignor or the assignee in chancery court of a petition seeking approval of a voluntary assignment, the court may issue an order approving a voluntary assignment and directing the corporation to make prize payments as a whole or in part to the assignee if the court finds all of the following:
(a) The assignment is in writing, is executed by the assignor, and is by its terms subject to the laws of this state.
(b) The assignor provides a sworn affidavit attesting that the assignor is of sound mind, is in full command of the assignor's faculties, and is not acting under duress.
(c) The assignor has been advised about the assignment by an independent attorney who is not related to and not compensated by the assignee or an affiliate of the assignee.
(d) The assignor understands that the assignor will not receive the prize payments or parts of payments during the years assigned.
(e) The assignor understands and agrees, with regard to the assigned payments, that the corporation, board of directors, and officials and employees of the corporation shall have no further liability or responsibility for making the assigned payments.
(f) The assignee provides the assignor with a one-page disclosure statement that sets forth in bold type not less than fourteen (14) points in size the payments being assigned by amount and payment date, the purchase price, the rate of discount to present value, assuming daily compounding and funding on the contract date, and any origination or closing fee that will be charged to the assignor.
(g) The contract of assignment expressly states that the assignor has three (3) business days after signing the contract to cancel the assignment.
(h) The assignor and assignee do not seek assignment for purposes of evading creditors, judgments or obligations of child support.
(i) The assignor and assignee have certified that neither of them has a child support obligation or, if either does have a child support obligation, that no arrearage is due, and that neither the assignor nor the assignee is obligated to repay any public assistance benefits or overpayment of child support.
(j) The petition required by this subsection shall be accompanied by a certification from a representative of the Mississippi Department of Human Services stating any of the following:
(i) That the assignor or assignee does not currently have a child support arrearage, or the assignor or assignee does not owe an obligation to repay any public assistance benefits or an overpayment of child support benefits to the Mississippi Department of Human Services.
(ii) That the assignor or assignee does currently have a child support obligation and that no arrearage is due to the Mississippi Department of Human Services.
(iii) That the assignor or assignee does currently have a child support arrearage, or the assignor or assignee does owe an obligation to repay any public assistance benefits or an overpayment of child support benefits to the Mississippi Department of Human Services.
The certification from the Mississippi Department of Human Services shall be provided to the assignor and the assignee promptly upon the request of the assignor or the assignee, and in no event more than ten (10) business days after the request is received by the Mississippi Department of Human Services.
(4) Written notice of the petition and proposed assignment and any court hearing concerning the petition and proposed assignment shall be served on the corporation, which shall be made a party thereto.
(5) (a) The corporation, not later than ten (10) days after receiving a certified copy of a court order approving a voluntary assignment, shall send the assignor and the assignee written confirmation of both of the following:
(i) The court-approved assignment.
(ii) The intent of the corporation to rely on the assignment in making payments to the assignee named in the order free from any attachments, garnishments or executions.
(b) The corporation shall thereafter make payments in accordance with the assignment.
(6) (a) Neither the state nor the corporation, its board, nor any of its officials or employees shall be liable in any manner for any assigned payments made by the corporation pursuant to this section.
(b) The assignor and assignee shall hold harmless and indemnify the state, the corporation, its board of directors, and its employees and agents from all claims, suits, actions, complaints or liabilities related to the assignment.
(7) The assignee shall pay any costs incurred by the corporation related to the assignment.
(8) The assignee shall notify the corporation of its business location and mailing address for payment purposes and of any change in location or address during the entire course of the assignment.
(9) A court order or a combination of court orders issued pursuant to this section may not require the corporation to divide a single prize payment among more than three (3) different persons.
(10) If the Internal Revenue Service or a court of competent jurisdiction issues a determination letter, revenue ruling, or other public document declaring that the voluntary assignment of prizes will affect the federal income taxation treatment of lottery prizewinners who do not assign their prizes, the following shall occur:
(a) Within fifteen (15) days after the corporation receives the letter, ruling or other document, the president of the corporation shall file a copy of it with the Attorney General; and
(b) A court shall not issue an order authorizing a voluntary assignment under this section.
(11) This section shall prevail over any inconsistent provision in Mississippi law.
SECTION 25. (1) The corporation shall enter into its contracts for major procurements after bidding. The corporation may adopt administrative rules and regulations pursuant to the provisions of this act providing for special procedures whereby the Mississippi Lottery Corporation may make any class of procurement.
(2) In its bidding processes, the corporation may do its own bidding and procurement or may utilize the services of the Department of Finance and Administration, the Department of Information Technology Services, or other state agencies as appropriate and necessary. The president of the corporation may, with approval of the board, declare an emergency for purchasing purposes which shall be governed by the administrative rules and regulations adopted by the board.
SECTION 26. (1) (a) All monies received by the corporation from the sale of lottery tickets and all other sources shall be deposited into a corporate operating account. Such account shall be established in a custodian financial institution domiciled in the State of Mississippi and insured by the Federal Deposit Insurance Corporation and collateralized as prescribed by Section 27-105-5. The corporation may use all monies in the corporate operating account for the purposes of paying prizes and the necessary expenses of the corporation and dividends to the state. The corporation shall estimate and allocate the amount to be paid by the corporation to prizewinners.
(b) (i) The investment of monies in the corporate operating account, other than the amount specifically required for the purchase of securities for payment of deferred prizes, shall be invested in a manner prescribed by the board, consistent with law. Such securities purchased as investments by the corporation shall be issued in the name of the corporation and shall be kept at a custodian financial institution domiciled in the State of Mississippi insured by the Federal Deposit Insurance Corporation.
(ii) The investment of monies in the corporate operating account, other than the amount specifically required for the purchase of securities for deferred prize payments to winners, shall be invested only in securities in a manner prescribed by the board, consistent with law. Such securities purchased as investments by the corporation shall be issued in the name of the corporation and shall be safe kept at a custodian financial institution domiciled in the State of Mississippi insured by the Federal Deposit Insurance Corporation.
(iii) These instruments may be in varying maturities and may be in book-entry form.
(iv) For the purpose of deferred prize payments to winners, the corporation shall purchase or invest in only those securities prescribed by the board, consistent with law.
(c) Within twenty (20) days following the close of each calendar month, the corporation shall transfer to the Lottery Proceeds Fund in the State Treasury the amount of net proceeds.
(d) The apportionment of the total gross revenues accruing from the sale of lottery tickets or shares and from all other sources shall be as follows:
(i) The payment of prizes to the holders of winning lottery tickets or shares which in any case shall be no less than fifty percent (50%) of the total gross revenues accruing from the sale of lottery tickets.
(ii) The payment of costs incurred in the operation and administration of the lottery, including the expenses of the corporation and the costs resulting from any contract or contracts entered into for promotional, advertising or operational services or for the purchase or lease of lottery equipment and materials, which in no case shall exceed fifteen percent (15%) of the total gross revenues accruing from the sale of lottery tickets. However, this restriction shall not apply until after the first twelve (12) months of revenue generation.
(2) A Lottery Proceeds Fund is hereby established in the State Treasury. Net proceeds shall be deposited into this fund as provided in subsection (1) of this section. Monies deposited into the Lottery Proceeds Fund shall be invested by the state in accordance with state investment practices, and all earnings from such investments shall accrue to this account. No monies shall be allotted or expended from this account unless pursuant to a warrant issued as provided under Section 43 of this act.
SECTION 27. (1) The corporation may accept and expend such monies as may be appropriated by the Legislature or such monies as may be received from any source, including income from the corporation's operations, for effectuating its corporate purposes, including the payment of the initial expenses of administration and operation of the corporation and the lottery.
(2) The corporation is intended to be self-sustaining and self-funded. Monies in the State General Fund shall not be used or obligated to pay the prizes of the lottery, and no claim for the payment of an expense of the lottery or prizes of the lottery may be made against any monies other than monies credited to the corporate operating account.
SECTION 28. (1) The Legislature hereby recognizes that to conduct a successful lottery, the corporation must develop and maintain a statewide network of lottery retailers that will serve the public convenience and promote the sale of tickets, while ensuring the integrity of the lottery operations, games and activities.
(2) To govern the selection of lottery retailers, the board shall, by administrative rules and regulations, develop a list of objective criteria upon which the selection of lottery retailers shall be based. In developing these criteria, the board shall consider such factors as the applicant's financial responsibility, location and security of the applicant's place of business or activity, integrity, and reputation; however, the board shall not consider political affiliation, activities or monetary contributions to political organizations or candidates for any public office. The criteria shall include, but not be limited to, the following:
(a) The applicant shall be current in payment of all taxes, interest and penalties owed to any taxing political subdivision where the lottery retailer will sell lottery tickets.
(b) The applicant shall be current in filing all applicable tax returns and in payment of all taxes, interest and penalties owed to the State of Mississippi, excluding items under formal appeal pursuant to applicable statutes, before a license is issued and before each renewal.
(c) No person shall be selected as a lottery retailer for the sale of lottery tickets who:
(i) Has been convicted of a criminal offense related to the security or integrity of the lottery in this or any other jurisdiction.
(ii) Has been convicted of any illegal gambling activity, false statements, false swearing or perjury in this or any other jurisdiction, or convicted of a felony.
(iii) Has been found to have violated the provisions of this act or any administrative rules and regulations adopted under this act, unless either ten (10) years have passed since the violation, or the president and the board find the violation both minor and unintentional in nature.
(iv) Is a vendor or an employee or agent of any vendor doing business with the corporation.
(v) Resides in the same household as an officer or board member of the corporation.
(vi) Has made a statement of material fact to the corporation, knowing such statement to be false.
SECTION 29. (1) No lottery retailer contract awarded pursuant to this act shall be transferable or assignable. No lottery retailer shall contract with any person for lottery goods or services except with the approval of the board.
(2) Each lottery retailer shall be issued a lottery retailer certificate which shall be conspicuously displayed at the place where the lottery retailer is authorized to sell lottery tickets. Lottery tickets shall only be sold by the retailer at the location stated on the lottery retailer certificate.
(3) For the convenience of the public, all retailers may pay winners up to Six Hundred Dollars ($600.00) after performing validation procedures appropriate to the lottery game involved.
SECTION 30. The corporation shall require each lottery retailer to post a letter of credit or a bond with the corporation using a surety acceptable to the corporation in an amount not to exceed twice the average lottery ticket sales of the lottery retailer for the period within which the lottery retailer is required to remit lottery funds to the corporation. This section does not apply to lottery tickets which are prepaid by the lottery retailers. The corporation may facilitate the purchase of bonds and letters of credit by establishing lottery retailer pools for the purchase of bonds and letters of credit for lottery retailers.
SECTION 31. (1) Any contract executed by the corporation with a lottery retailer pursuant to this section shall specify the reasons for which any contract may be cancelled, denied, revoked, suspended, renewal rejected or terminated by the corporation, which reasons may include, but not be limited to:
(a) Commission of a violation of this act or administrative rules and regulations adopted pursuant to this act.
(b) Failure to accurately account for lottery tickets, revenues or prizes as required by the corporation.
(c) Commission of any fraud, deceit or misrepresentation.
(d) Insufficient sale of tickets.
(e) Conduct prejudicial to public confidence in the lottery.
(f) The lottery retailer filing for or being placed in bankruptcy or receivership.
(g) Any material change in any matter considered by the corporation in executing the contract with the lottery retailer.
(h) Failure to meet any of the objective criteria established by the board pursuant to this act.
(2) If, in the discretion of the president, cancellation, denial, revocation, suspension, rejection of renewal or termination of a lottery retailer contract is in the best interest of the lottery, the public welfare, or the State of Mississippi, the president may cancel, deny, revoke, suspend, reject the renewal, or terminate, after notice and a hearing, any contract issued pursuant to this act. Such contract may, however, be temporarily suspended by the president without prior notice, pending any prosecution, hearing or investigation, whether by a third party or by the president. A contract may be cancelled, denied, revoked, suspended, renewal rejected or terminated by the president for any one or more of the reasons enumerated in this section.
SECTION 32. (1) (a) All proceeds from the sale of lottery tickets received by a lottery retailer shall constitute a trust fund until paid to the corporation either directly or through the corporation's authorized collection representative. A lottery retailer shall have a fiduciary duty to preserve and account for lottery proceeds, and lottery retailers shall be personally liable for all proceeds. Proceeds shall include unsold instant tickets received by a lottery retailer and cash proceeds of the sale of any lottery products, net of allowable sales commissions and credit for lottery prizes to winners by lottery retailers. Sales proceeds and unused instant tickets shall be delivered to the corporation or its authorized collection representative upon demand.
(b) The corporation shall, by administrative rules and regulations, require lottery retailers to place all lottery proceeds due the corporation in accounts in institutions insured by the Federal Deposit Insurance Corporation not later than the close of the next banking day after the date of their collection by the lottery retailer until the date they are paid over to the corporation. Each lottery retailer shall establish a separate bank account for lottery proceeds which shall be kept separate and apart from all other funds and assets and shall not be commingled with any other funds or assets.
(2) Whenever any person who receives proceeds from the sale of lottery tickets in the capacity of a lottery retailer becomes insolvent, or dies insolvent, the proceeds due the corporation from such person or his or her estate shall have preference over all debts or demands.
SECTION 33. (1) No person shall sell a ticket at a price other than established by the corporation, unless authorized in writing by the president. No person other than a duly certified lottery retailer shall sell lottery tickets, but this shall not be construed to prevent a person who may lawfully purchase tickets from making a gift of lottery tickets to another. Nothing in this act shall be construed to prohibit the corporation from designating certain of its agents and employees to sell lottery tickets directly to the public.
(2) Lottery tickets may be given by merchants as a means of promoting goods or services to customers or prospective customers subject to approval by the board.
(3) No lottery retailer shall sell a ticket except from the locations listed in the contract.
(4) No lottery tickets shall be sold at State of Mississippi safety rest areas.
SECTION 34. The corporation shall require the posting of one or more signs on licensed premises at each point of entry into areas where lottery tickets are sold to inform patrons of a toll-free telephone number of any state or national organization that provides information and referral services regarding compulsive or problem gambling. Failure by the owner of the licensed premises to post and maintain such a sign or signs shall be cause for the imposition of a fine to be determined by the board.
SECTION 35. (1) The corporation may purchase, lease or lease-purchase such goods or services as are necessary for effectuating the purposes of this act. The corporation shall not contract with any person or entity for the total operation and administration of the lottery, but it may make procurements which integrate such functions as lottery game design, lottery ticket distribution to retailers, supply of goods and services and advertising. In all procurement decisions, the corporation shall take into account the particularly sensitive nature of the lottery and shall act to promote and ensure security, honesty, fairness and integrity in the operation and administration of the lottery and the objectives of raising net proceeds for the benefit of the public.
(2) The corporation shall investigate the financial responsibility, security and integrity of any lottery system vendor who submits a bid, proposal or offer. At the time of submitting such bid, proposal or offer to the corporation, the corporation shall require the following items:
(a) A disclosure of the vendor's name and address and, as applicable, the name and address of the following:
(i) If the vendor is a corporation, the officers, directors and each stockholder in such corporation; however, in the case of owners of equity securities of a publicly traded corporation, only the names and addresses of those known to the corporation to own five percent (5%) or more of such securities need be disclosed.
(ii) If the vendor is a trust, the trustee and all persons entitled to receive income or benefits from the trust.
(iii) If the vendor is an association, the members, officers and directors.
(iv) If the vendor is a partnership or joint venture, all of the general partners, limited partners, or joint venturers.
(b) A disclosure of all the states and jurisdictions in which the vendor does business, and the nature of the business for each such state or jurisdiction.
(c) A disclosure of all the states and jurisdictions in which the vendor has contracts to supply gaming goods or services, including, but not limited to, lottery goods and services, and the nature of the goods or services involved for each such state or jurisdiction.
(d) A disclosure of all the states and jurisdictions in which the vendor has applied for, has sought renewal of, has received, has been denied, has pending, or has had revoked a gaming license of any kind, or had fines or penalties assessed on their license, contract, or operation, and the disposition of such in each such state or jurisdiction. If any lottery license or contract has been revoked or has not been renewed or any lottery license or application has remained pending for more than six (6) months, then it shall be disclosed.
(e) A disclosure of the details of any finding of a plea, conviction or adjudication for guilt, in a state or federal court, of the vendor for any felony or any other criminal offense other than a traffic violation.
(f) A disclosure of the details of any bankruptcy, insolvency, reorganization, corporate or individual purchase or takeover of another corporation, including bonded indebtedness, or any pending litigation of the vendor.
(g) Such additional disclosures and information as the corporation may determine to be appropriate for the procurement involved. If the vendor subcontracts any substantial portion of the work to be performed under the contract to a subcontractor, the vendor shall disclose all of the information required by this subsection for the subcontractor as if the subcontractor were itself a vendor.
(3) In no case shall the corporation enter into a contract for a procurement of any video lottery or video lottery terminal or any other illegal lottery device, and shall only enter into a contract for a procurement for any lottery system with a vendor who has complied with the disclosures required by the corporation and described in subsection (2) of this section, and any contract with such a vendor is void and unenforceable. Any contract with a vendor who does not comply with such requirements for periodically updating such disclosures during the tenure of a contract as may be specified in such contract is voidable and may be terminated by the corporation. The provisions of this section shall be construed broadly and liberally to achieve the ends of full disclosure of all information necessary to allow for a full and complete evaluation by the corporation of the competence, integrity, background and character of vendors.
(4) (a) A contract shall not be entered into with any vendor who has been found guilty of a felony related to the security or integrity of the lottery in this or any other jurisdiction or with any vendor who is found to be in possession of any illegal lottery device.
(b) A contract shall not be entered into with any vendor who has not first obtained a signed tax clearance from the Commissioner of Revenue indicating that the vendor is current in filing all applicable tax returns and in payment of all taxes, interest and penalties owed to the State of Mississippi, excluding items under formal appeal pursuant to applicable statutes.
(5) The corporation may require that each vendor shall, at the execution of the contract with the corporation, post a performance bond or letter of credit from a bank acceptable to the corporation, in an amount established by the corporation subject to the provisions of Section 31 of this act. In lieu of the bond, a vendor may, to assure the faithful performance of its obligations, deposit and maintain with the corporation securities that are interest-bearing or accruing and that are rated in one (1) of the three (3) highest classifications by an established nationally recognized investment rating service. Securities eligible under this subsection are limited to:
(a) Certificates of deposit issued by solvent banks or savings associations approved by the corporation and which are organized and existing under the laws of this state or under the laws of the United States.
(b) United States bonds, notes, and bills for which the full faith and credit of the government of the United States is pledged for the payment of principal and interest.
(c) Corporate bonds approved by the corporation. The corporation which issued the bonds shall not be an affiliate or subsidiary of the depositor. Such securities shall be held in trust.
(6) Every contract entered into by the corporation pursuant to this section shall contain a provision for payment of liquidated damages to the corporation for any breach of contract by the vendor.
(7) Each vendor shall be qualified to do business in this state and shall file appropriate tax returns as provided by the laws of this state. All contracts under this section shall be governed by the laws of this state.
SECTION 36. (1) The Mississippi Department of Public Safety shall perform full criminal background investigations on all potential vendors, including potential lottery retailers, and potential employees of the corporation at the level of division head and above, and at any level within a division handling security, and, as determined by the board, on any other employee of the corporation. The corporation shall reimburse the Department of Public Safety for the actual costs of such investigations.
(2) The corporation or its division handling security shall:
(a) Conduct criminal background investigations and credit investigations on all potential employees of the corporation not referred to in subsection (1) of this section or not investigated by the Department of Public Safety.
(b) Supervise ticket validation and lottery drawings.
(c) For just cause and subject to the terms of the vendor contract, inspect the facilities of any vendor in order to determine the integrity of the vendor's product and in order to determine whether the vendor is in compliance with its contract.
(d) Report any suspected violations of this act to the appropriate district attorney, or the Attorney General, and law enforcement agencies.
(e) Upon request, provide assistance to any district attorney, the Attorney General, or law enforcement agency investigating a violation of this act.
SECTION 37. (1) (a) No lottery retailer and no agent, associate, employee, representative or servant of any such person shall allow any illegal lottery device to be on its premises, nor shall any lottery retailer, agent, associate, employee, representative or servant sell a lottery ticket to any person unless the person submits any one (1) of the following forms of identification which establish the age of the person as twenty-one (21) years or older:
(i) A valid and current Mississippi driver's license which contains a photograph of the person presenting the driver's license.
(ii) A valid and current driver's license of another state which contains a photograph of the person submitting the driver's license.
(iii) A valid and current special identification card issued by the State of Mississippi containing a photograph of the person submitting the identification card.
(iv) A valid and current passport or visa issued by the federal government or another country or nation that contains a permanently attached photograph of the person submitting the passport or visa.
(v) A valid and current military or federal identification card issued by the federal government containing a photograph of the person submitting the identification card.
(b) Each form of identification listed in paragraph (a) of this subsection must on its face establish the age of the person as twenty-one (21) years of age or older, and there must be no reason to doubt the authenticity or correctness of the identification. No form of identification mentioned in paragraph (a) of this subsection shall be accepted as proof of age if it is expired, defaced, mutilated or altered. If the driver's license, state special identification card or lawful identification submitted is a duplicate, the person shall submit additional identification which contains the name, date of birth and photograph of the person.
(c) An educational institution identification card, check-cashing identification card, or employee identification card shall not be considered as lawful identification for the purposes of this subsection.
(2) Any lottery retailer who knowingly sells a lottery ticket to a person under twenty-one (21) years of age will be fined not less than One Hundred Dollars ($100.00) nor more than Five Hundred Dollars ($500.00) for the first offense and, for each subsequent offense, not less than Two Hundred Dollars ($200.00) nor more than One Thousand Dollars ($1,000.00) and may be disqualified as a lottery retailer.
(3) (a) It is unlawful for any person under twenty-one (21) years of age to purchase a lottery ticket.
(b) Whoever violates the provisions of this subsection shall be fined not more than One Hundred Dollars ($100.00).
(c) Any person apprehended while violating the provisions of this subsection shall be issued a citation by the apprehending law enforcement officer, which shall be paid in the same manner as provided for the offenders of local traffic violations.
SECTION 38. (1) Any person, with intent to defraud, who falsely makes, alters, forges, utters, passes or counterfeits a state lottery ticket shall be punished by imprisonment for not less than one (1) year and not more than twenty (20) years, by a fine of not more than Fifty Thousand Dollars ($50,000.00), or by both such fine and imprisonment.
(2) Any person who influences or attempts to influence the winning of a prize through the use of coercion, fraud, deception or tampering with lottery equipment or materials shall be punished by imprisonment for not less than one (1) year and not more than twenty (20) years, by a fine of not more than Fifty Thousand Dollars ($50,000.00), or by both such fine and imprisonment.
SECTION 39. (1) No former board member or officer of the corporation, or a corporation or other entity owned, in whole or in part, by a former board member or officer of the corporation, shall solicit or accept employment or enter into a contract for compensation of any kind with a vendor of the corporation within one (1) year after termination of service with the corporation.
(2) The name of any individual who is a board member or an officer or employee of the corporation shall not appear upon any lottery ticket, lottery game, lottery form or paper used in playing any lottery game.
(3) Violation of any provision of this section by a board member, officer or employee of the corporation shall constitute cause for removal from office or dismissal from employment.
(4) The provisions of subsections (1) and (3) of this section shall not apply to ex officio members of the board.
(5) The State Ethics Commission shall administer and enforce the provisions of this section. The procedures and penalties provided for in Section 25-4-101 et seq. shall apply to the administration and enforcement of the provisions of this section.
SECTION 40. (1) Skimming of lottery proceeds is the intentional excluding, or the taking of any action in an attempt to exclude, of anything or its value from the deposit, counting, collection or computation of gross revenues or net proceeds from lottery activities.
(2) Whoever commits the crime of skimming of lottery proceeds when the amount skimmed or to be skimmed is less than One Thousand Dollars ($1,000.00) may be imprisoned for not more than five (5) years, or may be fined not more than Five Thousand Dollars ($5,000.00), or both.
(3) Whoever commits the crime of skimming of lottery proceeds when the amount skimmed or to be skimmed is One Thousand Dollars ($1,000.00) or more but less than Ten Thousand Dollars ($10,000.00), shall be imprisoned for not less than three (3) years nor more than ten (10) years without benefit of probation, parole, or suspension of sentence, and may be fined not more than Twenty-five Thousand Dollars ($25,000.00), or both.
(4) Whoever commits the crime of skimming of lottery proceeds when the amount skimmed or to be skimmed is Ten Thousand Dollars ($10,000.00) or more shall be imprisoned for not less than ten (10) years nor more than twenty-five (25) years without benefit of probation, parole, or suspension of sentence, and may be fined not more than Fifty Thousand Dollars ($50,000.00), or both imprisonment and fine.
SECTION 41. No person shall knowingly or intentionally use or possess an illegal lottery device or make a material false statement in any application for a license or proposal to conduct lottery activities or make a material false entry in any book or record which is compiled or maintained or submitted to the corporation pursuant to the provisions of this act. Any person who violates the provisions of this section shall be imprisoned for not less than five (5) years nor more than ten (10) years without benefit of probation, parole or suspension of sentence, and may be fined an amount not to exceed Twenty-five Thousand Dollars ($25,000.00) or the dollar amount of the false entry or statement, whichever is greater, or both such fine and imprisonment.
SECTION 42. (1) Illegal lottery devices as described in this section are considered gambling devices and contraband.
(2) As used in this section, the term "illegal lottery device" means:
(a) Forged, counterfeit, or stolen, or improperly issued or illegally possessed lottery tickets.
(b) Any device or equipment that is in itself or is being used as part of any sort of a video lottery terminal.
(c) Any tickets, payouts, receipts or the like which are generated by, taken from or are related to any sort of a video lottery terminal.
(3) All law enforcement officers of municipal police forces, sheriff's departments, and the state shall confiscate and preserve all illegal lottery devices that come to their attention for evidence in the prosecution of those individuals in possession of same. Any such illegal lottery device will be subject to confiscation and destruction.
(4) Neither the state nor any political subdivision, agency, agent, or enforcement officer thereof shall be liable civilly or criminally for the destruction of any illegal lottery device.
SECTION 43. Until June 30, 2028, net proceeds generated by the Alyce G. Clarke Mississippi Lottery Law, created pursuant to Sections 1 through 46 of this act and deposited into the Lottery Proceeds Fund under Section 26(2) of this act, except as otherwise provided in this section, shall be paid into the State Highway Fund by warrant issued by the State Fiscal Officer upon requisition of the State Transportation Commission as needed to provide funds to repair, renovate and maintain highways and bridges of the state; however, funds paid into the State Highway Fund under this section shall be first used for matching federal funds authorized to the state pursuant to any federal highway infrastructure program implemented after September 1, 2018. However, all such monies deposited into the Lottery Proceeds Fund over Eighty Million Dollars ($80,000,000.00) in a fiscal year shall be transferred into the Education Enhancement Fund for the purposes of funding the Early Childhood Learning Collaborative, the Classroom Supply Fund and/or other educational purposes. From and after July 1, 2028, the net proceeds shall be deposited into the Lottery Proceeds Fund and shall be tranferred to the State General Fund, except for the amounts over Eighty Million Dollars ($80,000,000.00) which shall continue to be deposited in the Education Enhancement Fund as provided above.
SECTION 44. All division heads, officers and employees of the corporation shall be considered public servants as defined in Section 25-4-103. All division heads and officers of the corporation are subject to Section 25-4-25 and shall be required to file a Statement of Economic Interest with the Mississippi Ethics Commission.
SECTION 45. To ensure the financial integrity of the lottery, the corporation through its board shall:
(a) Compile and submit quarterly and annual reports and financial statements, in compliance with Section 10(3)(b) and Section 21 of this act;
(b) Contract with an independent auditor who is a certified public accountant or firm to conduct an annual financial audit of the books and records of the corporation. The cost of this annual financial audit shall be an operating expense of the corporation:
(i) Such independent auditor shall have no financial interest in any vendor with whom the corporation is under contract;
(ii) All contracts for independent auditors shall be reviewed by and subject to the approval of the State Auditor to ensure that the independent auditor is qualified to perform the audit;
(iii) The audit shall be completed within ninety (90) days after the close of the corporation's fiscal year; and
(iv) Contracts may be entered into for audit services for a period not to exceed five (5) years and the same firm shall not receive two (2) consecutive audit contracts.
SECTION 46. For informational purposes only, the corporation shall submit to the Joint Legislative Budget Committee a copy of the corporation's annual operating budget for the upcoming fiscal year. The budget shall include an estimate of net proceeds to be deposited into the State Highway Fund during the succeeding fiscal year.
SECTION 47. 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 or other 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 or other 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, or as deemed necessary by the State Auditor. 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-five Dollars ($35.00) per man-hour for the services of each staff person engaged in performing the audit or other service plus the actual cost of any independent specialist firm contracted by the State Auditor to assist in the performance of the audit, 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. Costs paid for independent specialists or firms contracted by the State Auditor shall be paid by the audited entity through the State Auditor to the specialist or firm conducting the postaudit.
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. 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) At the discretion
of the State Auditor, the Auditor may conduct risk assessments, as well as
performance and compliance audits based on Generally Accepted Government
Auditing Standards (GAGAS) of any state-funded economic development program
authorized under Title 57, Mississippi Code of 1972. After risk assessments or
program audits, the State Auditor may conduct audits of those projects deemed
high-risk, specifically as they identify any potential wrongdoing or
noncompliance based on objectives of the economic development program. The
Auditor is granted authority to gather, audit and review data and information
from the Mississippi Development Authority or any of its agents, the Department
of Revenue, and when necessary under this paragraph, the recipient business or
businesses or any other private, public or nonprofit entity with information
relevant to the audit project. The maximum amount the State Auditor may bill
the oversight agency under this paragraph in any fiscal year is One Hundred
Thousand Dollars ($100,000.00), based on reasonable and necessary expenses * * *;
(p) To review and approve any independent auditor selected by the Mississippi Lottery Corporation in accordance with Section 45 of this act, to conduct an annual audit of the corporation; and
(q) To conduct audits or investigations of the Mississippi Lottery Corporation if in the opinion of the State Auditor conditions justify such audits or investigations.
SECTION 48. Section 25-9-107, Mississippi Code of 1972, is amended as follows:
25-9-107. The following terms, when used in this chapter, unless a different meaning is plainly required by the context, shall have the following meanings:
(a) "Board" means the State Personnel Board created under the provisions of this chapter.
(b) "State service" means all employees of state departments, agencies and institutions as defined herein, except those officers and employees excluded by this chapter.
(c) "Nonstate service" means the following officers and employees excluded from the state service by this chapter. The following are excluded from the state service:
(i) Members of the State Legislature, their staff and other employees of the legislative branch;
(ii) The Governor and staff members of the immediate Office of the Governor;
(iii) Justices and judges of the judicial branch or members of appeals boards on a per diem basis;
(iv) The Lieutenant Governor, staff members of the immediate Office of the Lieutenant Governor and officers and employees directly appointed by the Lieutenant Governor;
(v) Officers and officials elected by popular vote and persons appointed to fill vacancies in elective offices;
(vi) Members of boards and commissioners appointed by the Governor, Lieutenant Governor or the State Legislature;
(vii) All academic officials, members of the teaching staffs and employees of the state institutions of higher learning, the Mississippi Community College Board, and community and junior colleges;
(viii) Officers and enlisted members of the National Guard of the state;
(ix) Prisoners, inmates, student or patient help working in or about institutions;
(x) Contract
personnel; provided * * *
that any agency which employs state service employees may enter into contracts
for personal and professional services only if such contracts are approved in
compliance with the rules and regulations promulgated by the State Personal
Service Contract Review Board under Section 25-9-120(3). Before paying any
warrant for such contractual services in excess of One Hundred Thousand Dollars
($100,000.00), the Auditor of Public Accounts, or the successor to those
duties, shall determine whether the contract involved was for personal or
professional services, and, if so, was approved by the State Personal Service
Contract Review Board;
(xi) Part-time employees; provided, however, part-time employees shall only be hired into authorized employment positions classified by the board, shall meet minimum qualifications as set by the board, and shall be paid in accordance with the Variable Compensation Plan as certified by the board;
(xii) Persons appointed on an emergency basis for the duration of the emergency; the effective date of the emergency appointments shall not be earlier than the date approved by the State Personnel Director, and shall be limited to thirty (30) working days. Emergency appointments may be extended to sixty (60) working days by the State Personnel Board;
(xiii) Physicians, dentists, veterinarians, nurse practitioners and attorneys, while serving in their professional capacities in authorized employment positions who are required by statute to be licensed, registered or otherwise certified as such, provided that the State Personnel Director shall verify that the statutory qualifications are met prior to issuance of a payroll warrant by the Auditor;
(xiv) Personnel who are employed and paid from funds received from a federal grant program which has been approved by the Legislature or the Department of Finance and Administration whose length of employment has been determined to be time-limited in nature. This subparagraph shall apply to personnel employed under the provisions of the Comprehensive Employment and Training Act of 1973, as amended, and other special federal grant programs which are not a part of regular federally funded programs wherein appropriations and employment positions are appropriated by the Legislature. Such employees shall be paid in accordance with the Variable Compensation Plan and shall meet all qualifications required by federal statutes or by the Mississippi Classification Plan;
(xv) The administrative head who is in charge of any state department, agency, institution, board or commission, wherein the statute specifically authorizes the Governor, board, commission or other authority to appoint said administrative head; provided, however, that the salary of such administrative head shall be determined by the State Personnel Board in accordance with the Variable Compensation Plan unless otherwise fixed by statute;
(xvi) The State Personnel Board shall exclude top-level positions if the incumbents determine and publicly advocate substantive program policy and report directly to the agency head, or the incumbents are required to maintain a direct confidential working relationship with a key excluded official. Provided further, a written job classification shall be approved by the board for each such position, and positions so excluded shall be paid in conformity with the Variable Compensation Plan;
(xvii) Employees whose employment is solely in connection with an agency's contract to produce, store or transport goods, and whose compensation is derived therefrom;
(xviii) Repealed;
(xix) The associate director, deputy directors and bureau directors within the Department of Agriculture and Commerce;
(xx) Personnel
employed by the Mississippi Industries for the Blind; provided * * * that any agency may enter into contracts for
the personal services of MIB employees without the prior approval of the State
Personnel Board or the State Personal Service Contract Review Board; however,
any agency contracting for the personal services of an MIB employee shall
provide the MIB employee with not less than the entry-level compensation and
benefits that the agency would provide to a full-time employee of the agency
who performs the same services;
(xxi) Personnel
employed by the Mississippi Department of Wildlife, Fisheries and Parks and the
Mississippi Department of Marine Resources as law enforcement trainees
(cadets); such personnel shall be paid in accordance with the Colonel Guy Groff
State Variable Compensation Plan * * *;
(xxii) The President of the Mississippi Lottery Corporation and personnel employed by the Mississippi Lottery Corporation.
(d) "Agency" means any state board, commission, committee, council, department or unit thereof created by the Constitution or statutes if such board, commission, committee, council, department, unit or the head thereof, is authorized to appoint subordinate staff by the Constitution or statute, except a legislative or judicial board, commission, committee, council, department or unit thereof.
SECTION 49. Section 25-11-103, Mississippi Code of 1972, is amended as follows:
25-11-103. (1) The following words and phrases as used in Articles 1 and 3, unless a different meaning is plainly required by the context, have the following meanings:
(a) "Accumulated contributions" means the sum of all the amounts deducted from the compensation of a member and credited to his or her individual account in the annuity savings account, together with regular interest as provided in Section 25-11-123.
(b) "Actuarial cost" means the amount of funds presently required to provide future benefits as determined by the board based on applicable tables and formulas provided by the actuary.
(c) "Actuarial equivalent" means a benefit of equal value to the accumulated contributions, annuity or benefit, as the case may be, when computed upon the basis of such mortality tables as adopted by the board of trustees, and regular interest.
(d) "Actuarial
tables" * * *
mean such tables of mortality and rates of interest as adopted by the
board in accordance with the recommendation of the actuary.
(e) "Agency" means any governmental body employing persons in the state service.
(f) "Average compensation" means the average of the four (4) highest years of earned compensation reported for an employee in a fiscal or calendar year period, or combination thereof that do not overlap, or the last forty-eight (48) consecutive months of earned compensation reported for an employee. The four (4) years need not be successive or joined years of service. In computing the average compensation for retirement, disability or survivor benefits, any amount lawfully paid in a lump sum for personal leave or major medical leave shall be included in the calculation to the extent that the amount does not exceed an amount that is equal to thirty (30) days of earned compensation and to the extent that it does not cause the employee's earned compensation to exceed the maximum reportable amount specified in paragraph (k) of this section; however, this thirty-day limitation shall not prevent the inclusion in the calculation of leave earned under federal regulations before July 1, 1976, and frozen as of that date as referred to in Section 25-3-99. In computing the average compensation, no amounts shall be used that are in excess of the amount on which contributions were required and paid, and no nontaxable amounts paid by the employer for health or life insurance premiums for the employee shall be used. If any member who is or has been granted any increase in annual salary or compensation of more than eight percent (8%) retires within twenty-four (24) months from the date that the increase becomes effective, then the board shall exclude that part of the increase in salary or compensation that exceeds eight percent (8%) in calculating that member's average compensation for retirement purposes. The board may enforce this provision by rule or regulation. However, increases in compensation in excess of eight percent (8%) per year granted within twenty-four (24) months of the date of retirement may be included in the calculation of average compensation if satisfactory proof is presented to the board showing that the increase in compensation was the result of an actual change in the position held or services rendered, or that the compensation increase was authorized by the State Personnel Board or was increased as a result of statutory enactment, and the employer furnishes an affidavit stating that the increase granted within the last twenty-four (24) months was not contingent on a promise or agreement of the employee to retire. Nothing in Section 25-3-31 shall affect the calculation of the average compensation of any member for the purposes of this article. The average compensation of any member who retires before July 1, 1992, shall not exceed the annual salary of the Governor.
(g) "Beneficiary" means any person entitled to receive a retirement allowance, an annuity or other benefit as provided by Articles 1 and 3. The term "beneficiary" may also include an organization, estate, trust or entity; however, a beneficiary designated or entitled to receive monthly payments under an optional settlement based on life contingency or under a statutory monthly benefit may only be a natural person. In the event of the death before retirement of any member who became a member of the system before July 1, 2007, and whose spouse and/or children are not entitled to a retirement allowance on the basis that the member has less than four (4) years of membership service credit, or who became a member of the system on or after July 1, 2007, and whose spouse and/or children are not entitled to a retirement allowance on the basis that the member has less than eight (8) years of membership service credit, and/or has not been married for a minimum of one (1) year or the spouse has waived his or her entitlement to a retirement allowance under Section 25-11-114, the lawful spouse of a member at the time of the death of the member shall be the beneficiary of the member unless the member has designated another beneficiary after the date of marriage in writing, and filed that writing in the office of the executive director of the board of trustees. No designation or change of beneficiary shall be made in any other manner.
(h) "Board" means the board of trustees provided in Section 25-11-15 to administer the retirement system created under this article.
(i) "Creditable service" means "prior service," "retroactive service" and all lawfully credited unused leave not exceeding the accrual rates and limitations provided in Section 25-3-91 et seq., as of the date of withdrawal from service plus "membership service" and other service for which credit is allowable as provided in Section 25-11-109. Except to limit creditable service reported to the system for the purpose of computing an employee's retirement allowance or annuity or benefits provided in this article, nothing in this paragraph shall limit or otherwise restrict the power of the governing authority of a municipality or other political subdivision of the state to adopt such vacation and sick leave policies as it deems necessary.
(j) "Child" means either a natural child of the member, a child that has been made a child of the member by applicable court action before the death of the member, or a child under the permanent care of the member at the time of the latter's death, which permanent care status shall be determined by evidence satisfactory to the board. For purposes of this paragraph, a natural child of the member is a child of the member that is conceived before the death of the member.
(k) "Earned compensation" means the full amount earned during a fiscal year by an employee not to exceed the employee compensation limit set pursuant to Section 401(a)(17) of the Internal Revenue Code for the calendar year in which the fiscal year begins and proportionately for less than one (1) year of service. Except as otherwise provided in this paragraph, the value of maintenance furnished to an employee shall not be included in earned compensation. Earned compensation shall not include any amounts paid by the employer for health or life insurance premiums for an employee. Earned compensation shall be limited to the regular periodic compensation paid, exclusive of litigation fees, bond fees, performance-based incentive payments, and other similar extraordinary nonrecurring payments. In addition, any member in a covered position, as defined by Public Employees' Retirement System laws and regulations, who is also employed by another covered agency or political subdivision shall have the earnings of that additional employment reported to the Public Employees' Retirement System regardless of whether the additional employment is sufficient in itself to be a covered position. In addition, computation of earned compensation shall be governed by the following:
(i) In the case of constables, the net earnings from their office after deduction of expenses shall apply, except that in no case shall earned compensation be less than the total direct payments made by the state or governmental subdivisions to the official.
(ii) In the case of chancery or circuit clerks, the net earnings from their office after deduction of expenses shall apply as expressed in Section 25-11-123(f)(4).
(iii) In the case of members of the State Legislature, all remuneration or amounts paid, except mileage allowance, shall apply.
(iv) The amount by which an eligible employee's salary is reduced under a salary reduction agreement authorized under Section 25-17-5 shall be included as earned compensation under this paragraph, provided this inclusion does not conflict with federal law, including federal regulations and federal administrative interpretations under the federal law, pertaining to the Federal Insurance Contributions Act or to Internal Revenue Code Section 125 cafeteria plans.
(v) Compensation in addition to an employee's base salary that is paid to the employee under the vacation and sick leave policies of a municipality or other political subdivision of the state that employs him or her that exceeds the maximums authorized by Section 25-3-91 et seq. shall be excluded from the calculation of earned compensation under this article.
(vi) The maximum salary applicable for retirement purposes before July 1, 1992, shall be the salary of the Governor.
(vii) Nothing in Section 25-3-31 shall affect the determination of the earned compensation of any member for the purposes of this article.
(viii) The value of maintenance furnished to an employee before July 1, 2013, for which the proper amount of employer and employee contributions have been paid, shall be included in earned compensation. From and after July 1, 2013, the value of maintenance furnished to an employee shall be reported as earned compensation only if the proper amount of employer and employee contributions have been paid on the maintenance and the employee was receiving maintenance and having maintenance reported to the system as of June 30, 2013. The value of maintenance when not paid in money shall be fixed by the employing state agency, and, in case of doubt, by the board of trustees as defined in Section 25-11-15.
(ix) Except as otherwise provided in this paragraph, the value of any in-kind benefits provided by the employer shall not be included in earned compensation. As used in this subparagraph, "in-kind benefits" shall include, but not be limited to, group life insurance premiums, health or dental insurance premiums, nonpaid major medical and personal leave, employer contributions for social security and retirement, tuition reimbursement or educational funding, day care or transportation benefits.
(l) "Employee" means any person legally occupying a position in the state service, and shall include the employees of the retirement system created under this article.
(m) "Employer" means the State of Mississippi or any of its departments, agencies or subdivisions from which any employee receives his or her compensation.
(n) "Executive director" means the secretary to the board of trustees, as provided in Section 25-11-15(9), and the administrator of the Public Employees' Retirement System and all systems under the management of the board of trustees. Wherever the term "Executive Secretary of the Public Employees' Retirement System" or "executive secretary" appears in this article or in any other provision of law, it shall be construed to mean the Executive Director of the Public Employees' Retirement System.
(o) "Fiscal year" means the period beginning on July 1 of any year and ending on June 30 of the next succeeding year.
(p) "Medical board" means the board of physicians or any governmental or nongovernmental disability determination service designated by the board of trustees that is qualified to make disability determinations as provided for in Section 25-11-119.
(q) "Member" means any person included in the membership of the system as provided in Section 25-11-105. For purposes of Sections 25-11-103, 25-11-105, 25-11-109, 25-11-111, 25-11-113, 25-11-114, 25-11-115 and 25-11-117, if a member of the system withdrew from state service and received a refund of the amount of the accumulated contributions to the credit of the member in the annuity savings account before July 1, 2007, and the person reenters state service and becomes a member of the system again on or after July 1, 2007, and repays all or part of the amount received as a refund and interest in order to receive creditable service for service rendered before July 1, 2007, the member shall be considered to have become a member of the system on or after July 1, 2007, subject to the eight-year membership service requirement, as applicable in those sections. For purposes of Sections 25-11-103, 25-11-111, 25-11-114 and 25-11-115, if a member of the system withdrew from state service and received a refund of the amount of the accumulated contributions to the credit of the member in the annuity savings account before July 1, 2011, and the person reenters state service and becomes a member of the system again on or after July 1, 2011, and repays all or part of the amount received as a refund and interest in order to receive creditable service for service rendered before July 1, 2011, the member shall be considered to have become a member of the system on or after July 1, 2011.
(r) "Membership service" means service as an employee in a covered position rendered while a contributing member of the retirement system.
(s) "Position" means any office or any employment in the state service, or two (2) or more of them, the duties of which call for services to be rendered by one (1) person, including positions jointly employed by federal and state agencies administering federal and state funds. The employer shall determine upon initial employment and during the course of employment of an employee who does not meet the criteria for coverage in the Public Employees' Retirement System based on the position held, whether the employee is or becomes eligible for coverage in the Public Employees' Retirement System based upon any other employment in a covered agency or political subdivision. If or when the employee meets the eligibility criteria for coverage in the other position, then the employer must withhold contributions and report wages from the noncovered position in accordance with the provisions for reporting of earned compensation. Failure to deduct and report those contributions shall not relieve the employee or employer of liability thereof. The board shall adopt such rules and regulations as necessary to implement and enforce this provision.
(t) "Prior service" means:
(i) For persons who became members of the system before July 1, 2007, service rendered before February 1, 1953, for which credit is allowable under Sections 25-11-105 and 25-11-109, and which shall allow prior service for any person who is now or becomes a member of the Public Employees' Retirement System and who does contribute to the system for a minimum period of four (4) years.
(ii) For persons who became members of the system on or after July 1, 2007, service rendered before February 1, 1953, for which credit is allowable under Sections 25-11-105 and 25-11-109, and which shall allow prior service for any person who is now or becomes a member of the Public Employees' Retirement System and who does contribute to the system for a minimum period of eight (8) years.
(u) "Regular interest" means interest compounded annually at such a rate as determined by the board in accordance with Section 25-11-121.
(v) "Retirement allowance" means an annuity for life as provided in this article, payable each year in twelve (12) equal monthly installments beginning as of the date fixed by the board. The retirement allowance shall be calculated in accordance with Section 25-11-111. However, any spouse who received a spouse retirement benefit in accordance with Section 25-11-111(d) before March 31, 1971, and those benefits were terminated because of eligibility for a social security benefit, may again receive his or her spouse retirement benefit from and after making application with the board of trustees to reinstate the spouse retirement benefit.
(w) "Retroactive service" means service rendered after February 1, 1953, for which credit is allowable under Section 25-11-105(b) and Section 25-11-105(k).
(x) "System" means the Public Employees' Retirement System of Mississippi established and described in Section 25-11-101.
(y) "State" means the State of Mississippi or any political subdivision thereof or instrumentality of the state.
(z) "State service" means all offices and positions of trust or employment in the employ of the state, or any political subdivision or instrumentality of the state, that elect to participate as provided by Section 25-11-105(f), including the position of elected or fee officials of the counties and their deputies and employees performing public services or any department, independent agency, board or commission thereof, and also includes all offices and positions of trust or employment in the employ of joint state and federal agencies administering state and federal funds and service rendered by employees of the public schools. Effective July 1, 1973, all nonprofessional public school employees, such as bus drivers, janitors, maids, maintenance workers and cafeteria employees, shall have the option to become members in accordance with Section 25-11-105(b), and shall be eligible to receive credit for services before July 1, 1973, provided that the contributions and interest are paid by the employee in accordance with that section; in addition, the county or municipal separate school district may pay the employer contribution and pro rata share of interest of the retroactive service from available funds. "State service" shall not include the President of the Mississippi Lottery Corporation and personnel employed by the Mississippi Lottery Corporation. From and after July 1, 1998, retroactive service credit shall be purchased at the actuarial cost in accordance with Section 25-11-105(b).
(aa) "Withdrawal from service" or "termination from service" means complete severance of employment in the state service of any member by resignation, dismissal or discharge.
(bb) The masculine pronoun, wherever used, includes the feminine pronoun.
(2) For purposes of this article, the term "political subdivision" shall have the meaning ascribed to such term in Section 25-11-5 and shall also include public charter schools.
SECTION 50. Section 25-41-3, Mississippi Code of 1972, is amended as follows:
25-41-3. For purposes of this chapter, the following words shall have the meaning ascribed herein, to wit:
(a) "Public body" means any executive or administrative board, commission, authority, council, department, agency, bureau or any other policymaking entity, or committee thereof, of the State of Mississippi, or any political subdivision or municipal corporation of the state, whether the entity be created by statute or executive order, which is supported wholly or in part by public funds or expends public funds, and any standing, interim or special committee of the Mississippi Legislature. The term "public body" includes the governing board of a charter school authorized by the Mississippi Charter School Authorizer Board and the board of trustees of a community hospital as defined in Section 41-13-10. The term "public body" includes the Mississippi Lottery Corporation. There shall be exempted from the provisions of this chapter:
(i) The judiciary, including all jury deliberations;
(ii) Law enforcement officials;
(iii) The military;
(iv) The State Probation and Parole Board;
(v) The Workers' Compensation Commission;
(vi) Legislative subcommittees and legislative conference committees;
(vii) The arbitration council established in Section 69-3-19;
(viii) License revocation, suspension and disciplinary proceedings held by the Mississippi State Board of Dental Examiners; and
(ix) Hearings and meetings of the Board of Tax Appeals and of the hearing officers and the board of review of the Department of Revenue as provided in Section 27-77-15.
(b) "Meeting" means an assemblage of members of a public body at which official acts may be taken upon a matter over which the public body has supervision, control, jurisdiction or advisory power, including an assemblage through the use of video or teleconference devices that conforms to Section 25-41-5.
SECTION 51. Section 31-7-13, Mississippi Code of 1972, is amended as follows:
31-7-13. All agencies and governing authorities shall purchase their commodities and printing; contract for garbage collection or disposal; contract for solid waste collection or disposal; contract for sewage collection or disposal; contract for public construction; and contract for rentals as herein provided.
(a) Bidding procedure for purchases not over $5,000.00. Purchases which do not involve an expenditure of more than Five Thousand Dollars ($5,000.00), exclusive of freight or shipping charges, may be made without advertising or otherwise requesting competitive bids. However, nothing contained in this paragraph (a) shall be construed to prohibit any agency or governing authority from establishing procedures which require competitive bids on purchases of Five Thousand Dollars ($5,000.00) or less.
(b) Bidding procedure for purchases over $5,000.00 but not over $50,000.00. Purchases which involve an expenditure of more than Five Thousand Dollars ($5,000.00) but not more than Fifty Thousand Dollars ($50,000.00), exclusive of freight and shipping charges, may be made from the lowest and best bidder without publishing or posting advertisement for bids, provided at least two (2) competitive written bids have been obtained. Any state agency or community/junior college purchasing commodities or procuring construction pursuant to this paragraph (b) may authorize its purchasing agent, or his designee, to accept the lowest competitive written bid under Fifty Thousand Dollars ($50,000.00). Any governing authority purchasing commodities pursuant to this paragraph (b) may authorize its purchasing agent, or his designee, with regard to governing authorities other than counties, or its purchase clerk, or his designee, with regard to counties, to accept the lowest and best competitive written bid. Such authorization shall be made in writing by the governing authority and shall be maintained on file in the primary office of the agency and recorded in the official minutes of the governing authority, as appropriate. The purchasing agent or the purchase clerk, or their designee, as the case may be, and not the governing authority, shall be liable for any penalties and/or damages as may be imposed by law for any act or omission of the purchasing agent or purchase clerk, or their designee, constituting a violation of law in accepting any bid without approval by the governing authority. The term "competitive written bid" shall mean a bid submitted on a bid form furnished by the buying agency or governing authority and signed by authorized personnel representing the vendor, or a bid submitted on a vendor's letterhead or identifiable bid form and signed by authorized personnel representing the vendor. "Competitive" shall mean that the bids are developed based upon comparable identification of the needs and are developed independently and without knowledge of other bids or prospective bids. Any bid item for construction in excess of Five Thousand Dollars ($5,000.00) shall be broken down by components to provide detail of component description and pricing. These details shall be submitted with the written bids and become part of the bid evaluation criteria. Bids may be submitted by facsimile, electronic mail or other generally accepted method of information distribution. Bids submitted by electronic transmission shall not require the signature of the vendor's representative unless required by agencies or governing authorities.
(c) Bidding procedure for purchases over $50,000.00.
(i) Publication requirement.
1. Purchases which involve an expenditure of more than Fifty Thousand Dollars ($50,000.00), exclusive of freight and shipping charges, may be made from the lowest and best bidder after advertising for competitive bids once each week for two (2) consecutive weeks in a regular newspaper published in the county or municipality in which such agency or governing authority is located. However, all American Recovery and Reinvestment Act projects in excess of Twenty-five Thousand Dollars ($25,000.00) shall be bid. All references to American Recovery and Reinvestment Act projects in this section shall not apply to programs identified in Division B of the American Recovery and Reinvestment Act.
2. Reverse auctions shall be the primary method for receiving bids during the bidding process. If a purchasing entity determines that a reverse auction is not in the best interest of the state, then that determination must be approved by the Public Procurement Review Board. The purchasing entity shall submit a detailed explanation of why a reverse auction would not be in the best interest of the state and present an alternative process to be approved by the Public Procurement Review Board. If the Public Procurement Review Board authorizes the purchasing entity to solicit bids with a method other than reverse auction, then the purchasing entity may designate the other methods by which the bids will be received, including, but not limited to, bids sealed in an envelope, bids received electronically in a secure system, or bids received by any other method that promotes open competition and has been approved by the Office of Purchasing and Travel. However, reverse auction shall not be used for any public contract for design or construction of public facilities, including buildings, roads and bridges. The Public Procurement Review Board must approve any contract entered into by alternative process. The provisions of this item 2 shall not apply to the individual state institutions of higher learning.
3. The date as published for the bid opening shall not be less than seven (7) working days after the last published notice; however, if the purchase involves a construction project in which the estimated cost is in excess of Fifty Thousand Dollars ($50,000.00), such bids shall not be opened in less than fifteen (15) working days after the last notice is published and the notice for the purchase of such construction shall be published once each week for two (2) consecutive weeks. However, all American Recovery and Reinvestment Act projects in excess of Twenty-five Thousand Dollars ($25,000.00) shall be bid. For any projects in excess of Twenty-five Thousand Dollars ($25,000.00) under the American Recovery and Reinvestment Act, publication shall be made one (1) time and the bid opening for construction projects shall not be less than ten (10) working days after the date of the published notice. The notice of intention to let contracts or purchase equipment shall state the time and place at which bids shall be received, list the contracts to be made or types of equipment or supplies to be purchased, and, if all plans and/or specifications are not published, refer to the plans and/or specifications on file. If there is no newspaper published in the county or municipality, then such notice shall be given by posting same at the courthouse, or for municipalities at the city hall, and at two (2) other public places in the county or municipality, and also by publication once each week for two (2) consecutive weeks in some newspaper having a general circulation in the county or municipality in the above-provided manner. On the same date that the notice is submitted to the newspaper for publication, the agency or governing authority involved shall mail written notice to, or provide electronic notification to the main office of the Mississippi Procurement Technical Assistance Program under the Mississippi Development Authority that contains the same information as that in the published notice. Submissions received by the Mississippi Procurement Technical Assistance Program for projects funded by the American Recovery and Reinvestment Act shall be displayed on a separate and unique Internet web page accessible to the public and maintained by the Mississippi Development Authority for the Mississippi Procurement Technical Assistance Program. Those American Recovery and Reinvestment Act related submissions shall be publicly posted within twenty-four (24) hours of receipt by the Mississippi Development Authority and the bid opening shall not occur until the submission has been posted for ten (10) consecutive days. The Department of Finance and Administration shall maintain information regarding contracts and other expenditures from the American Recovery and Reinvestment Act, on a unique Internet web page accessible to the public. The Department of Finance and Administration shall promulgate rules regarding format, content and deadlines, unless otherwise specified by law, of the posting of award notices, contract execution and subsequent amendments, links to the contract documents, expenditures against the awarded contracts and general expenditures of funds from the American Recovery and Reinvestment Act. Within one (1) working day of the contract award, the agency or governing authority shall post to the designated web page maintained by the Department of Finance and Administration, notice of the award, including the award recipient, the contract amount, and a brief summary of the contract in accordance with rules promulgated by the department. Within one (1) working day of the contract execution, the agency or governing authority shall post to the designated web page maintained by the Department of Finance and Administration a summary of the executed contract and make a copy of the appropriately redacted contract documents available for linking to the designated web page in accordance with the rules promulgated by the department. The information provided by the agency or governing authority shall be posted to the web page for the duration of the American Recovery and Reinvestment Act funding or until the project is completed, whichever is longer.
(ii) Bidding process amendment procedure. If all plans and/or specifications are published in the notification, then the plans and/or specifications may not be amended. If all plans and/or specifications are not published in the notification, then amendments to the plans/specifications, bid opening date, bid opening time and place may be made, provided that the agency or governing authority maintains a list of all prospective bidders who are known to have received a copy of the bid documents and all such prospective bidders are sent copies of all amendments. This notification of amendments may be made via mail, facsimile, electronic mail or other generally accepted method of information distribution. No addendum to bid specifications may be issued within two (2) working days of the time established for the receipt of bids unless such addendum also amends the bid opening to a date not less than five (5) working days after the date of the addendum.
(iii) Filing requirement. In all cases involving governing authorities, before the notice shall be published or posted, the plans or specifications for the construction or equipment being sought shall be filed with the clerk of the board of the governing authority. In addition to these requirements, a bid file shall be established which shall indicate those vendors to whom such solicitations and specifications were issued, and such file shall also contain such information as is pertinent to the bid.
(iv) Specification restrictions.
1. Specifications pertinent to such bidding shall be written so as not to exclude comparable equipment of domestic manufacture. However, if valid justification is presented, the Department of Finance and Administration or the board of a governing authority may approve a request for specific equipment necessary to perform a specific job. Further, such justification, when placed on the minutes of the board of a governing authority, may serve as authority for that governing authority to write specifications to require a specific item of equipment needed to perform a specific job. In addition to these requirements, from and after July 1, 1990, vendors of relocatable classrooms and the specifications for the purchase of such relocatable classrooms published by local school boards shall meet all pertinent regulations of the State Board of Education, including prior approval of such bid by the State Department of Education.
2. Specifications for construction projects may include an allowance for commodities, equipment, furniture, construction materials or systems in which prospective bidders are instructed to include in their bids specified amounts for such items so long as the allowance items are acquired by the vendor in a commercially reasonable manner and approved by the agency/governing authority. Such acquisitions shall not be made to circumvent the public purchasing laws.
(v) Electronic bids. Agencies and governing authorities shall provide a secure electronic interactive system for the submittal of bids requiring competitive bidding that shall be an additional bidding option for those bidders who choose to submit their bids electronically. The Department of Finance and Administration shall provide, by regulation, the standards that agencies must follow when receiving electronic bids. Agencies and governing authorities shall make the appropriate provisions necessary to accept electronic bids from those bidders who choose to submit their bids electronically for all purchases requiring competitive bidding under this section. Any special condition or requirement for the electronic bid submission shall be specified in the advertisement for bids required by this section. Agencies or governing authorities that are currently without available high speed Internet access shall be exempt from the requirement of this subparagraph (v) until such time that high speed Internet access becomes available. Any county having a population of less than twenty thousand (20,000) shall be exempt from the provisions of this subparagraph (v). Any municipality having a population of less than ten thousand (10,000) shall be exempt from the provisions of this subparagraph (v). The provisions of this subparagraph (v) shall not require any bidder to submit bids electronically. When construction bids are submitted electronically, the requirement for including a certificate of responsibility, or a statement that the bid enclosed does not exceed Fifty Thousand Dollars ($50,000.00), on the exterior of the bid envelope as indicated in Section 31-3-21(1) and (2) shall be deemed in compliance with by including same as an attachment with the electronic bid submittal.
(d) Lowest and best bid decision procedure.
(i) Decision procedure. Purchases may be made from the lowest and best bidder. In determining the lowest and best bid, freight and shipping charges shall be included. Life-cycle costing, total cost bids, warranties, guaranteed buy-back provisions and other relevant provisions may be included in the best bid calculation. All best bid procedures for state agencies must be in compliance with regulations established by the Department of Finance and Administration. If any governing authority accepts a bid other than the lowest bid actually submitted, it shall place on its minutes detailed calculations and narrative summary showing that the accepted bid was determined to be the lowest and best bid, including the dollar amount of the accepted bid and the dollar amount of the lowest bid. No agency or governing authority shall accept a bid based on items not included in the specifications.
(ii) Decision procedure for Certified Purchasing Offices. In addition to the decision procedure set forth in subparagraph (i) of this paragraph (d), Certified Purchasing Offices may also use the following procedure: Purchases may be made from the bidder offering the best value. In determining the best value bid, freight and shipping charges shall be included. Life-cycle costing, total cost bids, warranties, guaranteed buy-back provisions, documented previous experience, training costs and other relevant provisions, including, but not limited to, a bidder having a local office and inventory located within the jurisdiction of the governing authority, may be included in the best value calculation. This provision shall authorize Certified Purchasing Offices to utilize a Request For Proposals (RFP) process when purchasing commodities. All best value procedures for state agencies must be in compliance with regulations established by the Department of Finance and Administration. No agency or governing authority shall accept a bid based on items or criteria not included in the specifications.
(iii) Decision procedure for Mississippi Landmarks. In addition to the decision procedure set forth in subparagraph (i) of this paragraph (d), where purchase involves renovation, restoration, or both, of the State Capitol Building or any other historical building designated for at least five (5) years as a Mississippi Landmark by the Board of Trustees of the Department of Archives and History under the authority of Sections 39-7-7 and 39-7-11, the agency or governing authority may use the following procedure: Purchases may be made from the lowest and best prequalified bidder. Prequalification of bidders shall be determined not less than fifteen (15) working days before the first published notice of bid opening. Prequalification criteria shall be limited to bidder's knowledge and experience in historical restoration, preservation and renovation. In determining the lowest and best bid, freight and shipping charges shall be included. Life-cycle costing, total cost bids, warranties, guaranteed buy-back provisions and other relevant provisions may be included in the best bid calculation. All best bid and prequalification procedures for state agencies must be in compliance with regulations established by the Department of Finance and Administration. If any governing authority accepts a bid other than the lowest bid actually submitted, it shall place on its minutes detailed calculations and narrative summary showing that the accepted bid was determined to be the lowest and best bid, including the dollar amount of the accepted bid and the dollar amount of the lowest bid. No agency or governing authority shall accept a bid based on items not included in the specifications.
(iv) Construction project negotiations authority. If the lowest and best bid is not more than ten percent (10%) above the amount of funds allocated for a public construction or renovation project, then the agency or governing authority shall be permitted to negotiate with the lowest bidder in order to enter into a contract for an amount not to exceed the funds allocated.
(e) Lease-purchase authorization. For the purposes of this section, the term "equipment" shall mean equipment, furniture and, if applicable, associated software and other applicable direct costs associated with the acquisition. Any lease-purchase of equipment which an agency is not required to lease-purchase under the master lease-purchase program pursuant to Section 31-7-10 and any lease-purchase of equipment which a governing authority elects to lease-purchase may be acquired by a lease-purchase agreement under this paragraph (e). Lease-purchase financing may also be obtained from the vendor or from a third-party source after having solicited and obtained at least two (2) written competitive bids, as defined in paragraph (b) of this section, for such financing without advertising for such bids. Solicitation for the bids for financing may occur before or after acceptance of bids for the purchase of such equipment or, where no such bids for purchase are required, at any time before the purchase thereof. No such lease-purchase agreement shall be for an annual rate of interest which is greater than the overall maximum interest rate to maturity on general obligation indebtedness permitted under Section 75-17-101, and the term of such lease-purchase agreement shall not exceed the useful life of equipment covered thereby as determined according to the upper limit of the asset depreciation range (ADR) guidelines for the Class Life Asset Depreciation Range System established by the Internal Revenue Service pursuant to the United States Internal Revenue Code and regulations thereunder as in effect on December 31, 1980, or comparable depreciation guidelines with respect to any equipment not covered by ADR guidelines. Any lease-purchase agreement entered into pursuant to this paragraph (e) may contain any of the terms and conditions which a master lease-purchase agreement may contain under the provisions of Section 31-7-10(5), and shall contain an annual allocation dependency clause substantially similar to that set forth in Section 31-7-10(8). Each agency or governing authority entering into a lease-purchase transaction pursuant to this paragraph (e) shall maintain with respect to each such lease-purchase transaction the same information as required to be maintained by the Department of Finance and Administration pursuant to Section 31-7-10(13). However, nothing contained in this section shall be construed to permit agencies to acquire items of equipment with a total acquisition cost in the aggregate of less than Ten Thousand Dollars ($10,000.00) by a single lease-purchase transaction. All equipment, and the purchase thereof by any lessor, acquired by lease-purchase under this paragraph and all lease-purchase payments with respect thereto shall be exempt from all Mississippi sales, use and ad valorem taxes. Interest paid on any lease-purchase agreement under this section shall be exempt from State of Mississippi income taxation.
(f) Alternate bid authorization. When necessary to ensure ready availability of commodities for public works and the timely completion of public projects, no more than two (2) alternate bids may be accepted by a governing authority for commodities. No purchases may be made through use of such alternate bids procedure unless the lowest and best bidder cannot deliver the commodities contained in his bid. In that event, purchases of such commodities may be made from one (1) of the bidders whose bid was accepted as an alternate.
(g) Construction contract change authorization. In the event a determination is made by an agency or governing authority after a construction contract is let that changes or modifications to the original contract are necessary or would better serve the purpose of the agency or the governing authority, such agency or governing authority may, in its discretion, order such changes pertaining to the construction that are necessary under the circumstances without the necessity of further public bids; provided that such change shall be made in a commercially reasonable manner and shall not be made to circumvent the public purchasing statutes. In addition to any other authorized person, the architect or engineer hired by an agency or governing authority with respect to any public construction contract shall have the authority, when granted by an agency or governing authority, to authorize changes or modifications to the original contract without the necessity of prior approval of the agency or governing authority when any such change or modification is less than one percent (1%) of the total contract amount. The agency or governing authority may limit the number, manner or frequency of such emergency changes or modifications.
(h) Petroleum purchase alternative. In addition to other methods of purchasing authorized in this chapter, when any agency or governing authority shall have a need for gas, diesel fuel, oils and/or other petroleum products in excess of the amount set forth in paragraph (a) of this section, such agency or governing authority may purchase the commodity after having solicited and obtained at least two (2) competitive written bids, as defined in paragraph (b) of this section. If two (2) competitive written bids are not obtained, the entity shall comply with the procedures set forth in paragraph (c) of this section. In the event any agency or governing authority shall have advertised for bids for the purchase of gas, diesel fuel, oils and other petroleum products and coal and no acceptable bids can be obtained, such agency or governing authority is authorized and directed to enter into any negotiations necessary to secure the lowest and best contract available for the purchase of such commodities.
(i) Road construction petroleum products price adjustment clause authorization. Any agency or governing authority authorized to enter into contracts for the construction, maintenance, surfacing or repair of highways, roads or streets, may include in its bid proposal and contract documents a price adjustment clause with relation to the cost to the contractor, including taxes, based upon an industry-wide cost index, of petroleum products including asphalt used in the performance or execution of the contract or in the production or manufacture of materials for use in such performance. Such industry-wide index shall be established and published monthly by the Mississippi Department of Transportation with a copy thereof to be mailed, upon request, to the clerks of the governing authority of each municipality and the clerks of each board of supervisors throughout the state. The price adjustment clause shall be based on the cost of such petroleum products only and shall not include any additional profit or overhead as part of the adjustment. The bid proposals or document contract shall contain the basis and methods of adjusting unit prices for the change in the cost of such petroleum products.
(j) State agency emergency purchase procedure. If the governing board or the executive head, or his designees, of any agency of the state shall determine that an emergency exists in regard to the purchase of any commodities or repair contracts, so that the delay incident to giving opportunity for competitive bidding would be detrimental to the interests of the state, then the head of such agency, or his designees, shall file with the Department of Finance and Administration (i) a statement explaining the conditions and circumstances of the emergency, which shall include a detailed description of the events leading up to the situation and the negative impact to the entity if the purchase is made following the statutory requirements set forth in paragraph (a), (b) or (c) of this section, and (ii) a certified copy of the appropriate minutes of the board of such agency requesting the emergency purchase, if applicable. Upon receipt of the statement and applicable board certification, the State Fiscal Officer, or his designees, may, in writing, authorize the purchase or repair without having to comply with competitive bidding requirements.
If the governing board or the executive head, or his designees, of any agency determines that an emergency exists in regard to the purchase of any commodities or repair contracts, so that the delay incident to giving opportunity for competitive bidding would threaten the health or safety of any person, or the preservation or protection of property, then the provisions in this section for competitive bidding shall not apply, and any officer or agent of the agency having general or specific authority for making the purchase or repair contract shall approve the bill presented for payment, and he shall certify in writing from whom the purchase was made, or with whom the repair contract was made.
Total purchases made under this paragraph (j) shall only be for the purpose of meeting needs created by the emergency situation. Following the emergency purchase, documentation of the purchase, including a description of the commodity purchased, the purchase price thereof and the nature of the emergency shall be filed with the Department of Finance and Administration. Any contract awarded pursuant to this paragraph (j) shall not exceed a term of one (1) year.
(k) Governing authority emergency purchase procedure. If the governing authority, or the governing authority acting through its designee, shall determine that an emergency exists in regard to the purchase of any commodities or repair contracts, so that the delay incident to giving opportunity for competitive bidding would be detrimental to the interest of the governing authority, then the provisions herein for competitive bidding shall not apply and any officer or agent of such governing authority having general or special authority therefor in making such purchase or repair shall approve the bill presented therefor, and he shall certify in writing thereon from whom such purchase was made, or with whom such a repair contract was made. At the board meeting next following the emergency purchase or repair contract, documentation of the purchase or repair contract, including a description of the commodity purchased, the price thereof and the nature of the emergency shall be presented to the board and shall be placed on the minutes of the board of such governing authority.
(l) Hospital purchase, lease-purchase and lease authorization.
(i) The commissioners or board of trustees of any public hospital may contract with such lowest and best bidder for the purchase or lease-purchase of any commodity under a contract of purchase or lease-purchase agreement whose obligatory payment terms do not exceed five (5) years.
(ii) In addition to the authority granted in subparagraph (i) of this paragraph (l), the commissioners or board of trustees is authorized to enter into contracts for the lease of equipment or services, or both, which it considers necessary for the proper care of patients if, in its opinion, it is not financially feasible to purchase the necessary equipment or services. Any such contract for the lease of equipment or services executed by the commissioners or board shall not exceed a maximum of five (5) years' duration and shall include a cancellation clause based on unavailability of funds. If such cancellation clause is exercised, there shall be no further liability on the part of the lessee. Any such contract for the lease of equipment or services executed on behalf of the commissioners or board that complies with the provisions of this subparagraph (ii) shall be excepted from the bid requirements set forth in this section.
(m) Exceptions from bidding requirements. Excepted from bid requirements are:
(i) Purchasing agreements approved by department. Purchasing agreements, contracts and maximum price regulations executed or approved by the Department of Finance and Administration.
(ii) Outside equipment repairs. Repairs to equipment, when such repairs are made by repair facilities in the private sector; however, engines, transmissions, rear axles and/or other such components shall not be included in this exemption when replaced as a complete unit instead of being repaired and the need for such total component replacement is known before disassembly of the component; however, invoices identifying the equipment, specific repairs made, parts identified by number and name, supplies used in such repairs, and the number of hours of labor and costs therefor shall be required for the payment for such repairs.
(iii) In-house equipment repairs. Purchases of parts for repairs to equipment, when such repairs are made by personnel of the agency or governing authority; however, entire assemblies, such as engines or transmissions, shall not be included in this exemption when the entire assembly is being replaced instead of being repaired.
(iv) Raw gravel or dirt. Raw unprocessed deposits of gravel or fill dirt which are to be removed and transported by the purchaser.
(v) Governmental equipment auctions. Motor vehicles or other equipment purchased from a federal agency or authority, another governing authority or state agency of the State of Mississippi, or any governing authority or state agency of another state at a public auction held for the purpose of disposing of such vehicles or other equipment. Any purchase by a governing authority under the exemption authorized by this subparagraph (v) shall require advance authorization spread upon the minutes of the governing authority to include the listing of the item or items authorized to be purchased and the maximum bid authorized to be paid for each item or items.
(vi) Intergovernmental sales and transfers. Purchases, sales, transfers or trades by governing authorities or state agencies when such purchases, sales, transfers or trades are made by a private treaty agreement or through means of negotiation, from any federal agency or authority, another governing authority or state agency of the State of Mississippi, or any state agency or governing authority of another state. Nothing in this section shall permit such purchases through public auction except as provided for in subparagraph (v) of this paragraph (m). It is the intent of this section to allow governmental entities to dispose of and/or purchase commodities from other governmental entities at a price that is agreed to by both parties. This shall allow for purchases and/or sales at prices which may be determined to be below the market value if the selling entity determines that the sale at below market value is in the best interest of the taxpayers of the state. Governing authorities shall place the terms of the agreement and any justification on the minutes, and state agencies shall obtain approval from the Department of Finance and Administration, prior to releasing or taking possession of the commodities.
(vii) Perishable supplies or food. Perishable supplies or food purchased for use in connection with hospitals, the school lunch programs, homemaking programs and for the feeding of county or municipal prisoners.
(viii) Single source items. Noncompetitive items available from one (1) source only. In connection with the purchase of noncompetitive items only available from one (1) source, a certification of the conditions and circumstances requiring the purchase shall be filed by the agency with the Department of Finance and Administration and by the governing authority with the board of the governing authority. Upon receipt of that certification the Department of Finance and Administration or the board of the governing authority, as the case may be, may, in writing, authorize the purchase, which authority shall be noted on the minutes of the body at the next regular meeting thereafter. In those situations, a governing authority is not required to obtain the approval of the Department of Finance and Administration. Following the purchase, the executive head of the state agency, or his designees, shall file with the Department of Finance and Administration, documentation of the purchase, including a description of the commodity purchased, the purchase price thereof and the source from whom it was purchased.
(ix) Waste disposal facility construction contracts. Construction of incinerators and other facilities for disposal of solid wastes in which products either generated therein, such as steam, or recovered therefrom, such as materials for recycling, are to be sold or otherwise disposed of; however, in constructing such facilities, a governing authority or agency shall publicly issue requests for proposals, advertised for in the same manner as provided herein for seeking bids for public construction projects, concerning the design, construction, ownership, operation and/or maintenance of such facilities, wherein such requests for proposals when issued shall contain terms and conditions relating to price, financial responsibility, technology, environmental compatibility, legal responsibilities and such other matters as are determined by the governing authority or agency to be appropriate for inclusion; and after responses to the request for proposals have been duly received, the governing authority or agency may select the most qualified proposal or proposals on the basis of price, technology and other relevant factors and from such proposals, but not limited to the terms thereof, negotiate and enter contracts with one or more of the persons or firms submitting proposals.
(x) Hospital group purchase contracts. Supplies, commodities and equipment purchased by hospitals through group purchase programs pursuant to Section 31-7-38.
(xi) Information technology products. Purchases of information technology products made by governing authorities under the provisions of purchase schedules, or contracts executed or approved by the Mississippi Department of Information Technology Services and designated for use by governing authorities.
(xii) Energy efficiency services and equipment. Energy efficiency services and equipment acquired by school districts, community and junior colleges, institutions of higher learning and state agencies or other applicable governmental entities on a shared-savings, lease or lease-purchase basis pursuant to Section 31-7-14.
(xiii) Municipal electrical utility system fuel. Purchases of coal and/or natural gas by municipally owned electric power generating systems that have the capacity to use both coal and natural gas for the generation of electric power.
(xiv) Library books and other reference materials. Purchases by libraries or for libraries of books and periodicals; processed film, videocassette tapes, filmstrips and slides; recorded audiotapes, cassettes and diskettes; and any such items as would be used for teaching, research or other information distribution; however, equipment such as projectors, recorders, audio or video equipment, and monitor televisions are not exempt under this subparagraph.
(xv) Unmarked vehicles. Purchases of unmarked vehicles when such purchases are made in accordance with purchasing regulations adopted by the Department of Finance and Administration pursuant to Section 31-7-9(2).
(xvi) Election ballots. Purchases of ballots printed pursuant to Section 23-15-351.
(xvii) Multichannel interactive video systems. From and after July 1, 1990, contracts by Mississippi Authority for Educational Television with any private educational institution or private nonprofit organization whose purposes are educational in regard to the construction, purchase, lease or lease-purchase of facilities and equipment and the employment of personnel for providing multichannel interactive video systems (ITSF) in the school districts of this state.
(xviii) Purchases of prison industry products by the Department of Corrections, regional correctional facilities or privately owned prisons. Purchases made by the Mississippi Department of Corrections, regional correctional facilities or privately owned prisons involving any item that is manufactured, processed, grown or produced from the state's prison industries.
(xix) Undercover operations equipment. Purchases of surveillance equipment or any other high-tech equipment to be used by law enforcement agents in undercover operations, provided that any such purchase shall be in compliance with regulations established by the Department of Finance and Administration.
(xx) Junior college books for rent. Purchases by community or junior colleges of textbooks which are obtained for the purpose of renting such books to students as part of a book service system.
(xxi) Certain school district purchases. Purchases of commodities made by school districts from vendors with which any levying authority of the school district, as defined in Section 37-57-1, has contracted through competitive bidding procedures for purchases of the same commodities.
(xxii) Garbage, solid waste and sewage contracts. Contracts for garbage collection or disposal, contracts for solid waste collection or disposal and contracts for sewage collection or disposal.
(xxiii) Municipal water tank maintenance contracts. Professional maintenance program contracts for the repair or maintenance of municipal water tanks, which provide professional services needed to maintain municipal water storage tanks for a fixed annual fee for a duration of two (2) or more years.
(xxiv) Purchases of Mississippi Industries for the Blind products. Purchases made by state agencies or governing authorities involving any item that is manufactured, processed or produced by the Mississippi Industries for the Blind.
(xxv) Purchases of state-adopted textbooks. Purchases of state-adopted textbooks by public school districts.
(xxvi) Certain purchases under the Mississippi Major Economic Impact Act. Contracts entered into pursuant to the provisions of Section 57-75-9(2), (3) and (4).
(xxvii) Used heavy or specialized machinery or equipment for installation of soil and water conservation practices purchased at auction. Used heavy or specialized machinery or equipment used for the installation and implementation of soil and water conservation practices or measures purchased subject to the restrictions provided in Sections 69-27-331 through 69-27-341. Any purchase by the State Soil and Water Conservation Commission under the exemption authorized by this subparagraph shall require advance authorization spread upon the minutes of the commission to include the listing of the item or items authorized to be purchased and the maximum bid authorized to be paid for each item or items.
(xxviii) Hospital lease of equipment or services. Leases by hospitals of equipment or services if the leases are in compliance with paragraph (l)(ii).
(xxix) Purchases made pursuant to qualified cooperative purchasing agreements. Purchases made by certified purchasing offices of state agencies or governing authorities under cooperative purchasing agreements previously approved by the Office of Purchasing and Travel and established by or for any municipality, county, parish or state government or the federal government, provided that the notification to potential contractors includes a clause that sets forth the availability of the cooperative purchasing agreement to other governmental entities. Such purchases shall only be made if the use of the cooperative purchasing agreements is determined to be in the best interest of the governmental entity.
(xxx) School yearbooks. Purchases of school yearbooks by state agencies or governing authorities; provided, however, that state agencies and governing authorities shall use for these purchases the RFP process as set forth in the Mississippi Procurement Manual adopted by the Office of Purchasing and Travel.
(xxxi) Design-build method and dual-phase design-build method of contracting. Contracts entered into under the provisions of Section 31-7-13.1, 37-101-44 or 65-1-85.
(xxxii) Toll roads and bridge construction projects. Contracts entered into under the provisions of Section 65-43-1 or 65-43-3.
(xxxiii) Certain purchases under Section 57-1-221. Contracts entered into pursuant to the provisions of Section 57-1-221.
(xxxiv) Certain transfers made pursuant to the provisions of Section 57-105-1(7). Transfers of public property or facilities under Section 57-105-1(7) and construction related to such public property or facilities.
(xxxv) Certain purchases or transfers entered into with local electrical power associations. Contracts or agreements entered into under the provisions of Section 55-3-33.
(xxxvi) Certain purchases by an academic medical center or health sciences school. Purchases by an academic medical center or health sciences school, as defined in Section 37-115-50, of commodities that are used for clinical purposes and 1. intended for use in the diagnosis of disease or other conditions or in the cure, mitigation, treatment or prevention of disease, and 2. medical devices, biological, drugs and radiation-emitting devices as defined by the United States Food and Drug Administration.
(xxxvii) Certain purchases made under the Alyce G. Clarke Mississippi Lottery Law. Contracts made by the Mississippi Lottery Corporation pursuant to the Alyce G. Clarke Mississippi Lottery Law.
(n) Term contract authorization. All contracts for the purchase of:
(i) All contracts for the purchase of commodities, equipment and public construction (including, but not limited to, repair and maintenance), may be let for periods of not more than sixty (60) months in advance, subject to applicable statutory provisions prohibiting the letting of contracts during specified periods near the end of terms of office. Term contracts for a period exceeding twenty-four (24) months shall also be subject to ratification or cancellation by governing authority boards taking office subsequent to the governing authority board entering the contract.
(ii) Bid proposals and contracts may include price adjustment clauses with relation to the cost to the contractor based upon a nationally published industry-wide or nationally published and recognized cost index. The cost index used in a price adjustment clause shall be determined by the Department of Finance and Administration for the state agencies and by the governing board for governing authorities. The bid proposal and contract documents utilizing a price adjustment clause shall contain the basis and method of adjusting unit prices for the change in the cost of such commodities, equipment and public construction.
(o) Purchase law violation prohibition and vendor penalty. No contract or purchase as herein authorized shall be made for the purpose of circumventing the provisions of this section requiring competitive bids, nor shall it be lawful for any person or concern to submit individual invoices for amounts within those authorized for a contract or purchase where the actual value of the contract or commodity purchased exceeds the authorized amount and the invoices therefor are split so as to appear to be authorized as purchases for which competitive bids are not required. Submission of such invoices shall constitute a misdemeanor punishable by a fine of not less than Five Hundred Dollars ($500.00) nor more than One Thousand Dollars ($1,000.00), or by imprisonment for thirty (30) days in the county jail, or both such fine and imprisonment. In addition, the claim or claims submitted shall be forfeited.
(p) Electrical utility petroleum-based equipment purchase procedure. When in response to a proper advertisement therefor, no bid firm as to price is submitted to an electric utility for power transformers, distribution transformers, power breakers, reclosers or other articles containing a petroleum product, the electric utility may accept the lowest and best bid therefor although the price is not firm.
(q) Fuel management system bidding procedure. Any governing authority or agency of the state shall, before contracting for the services and products of a fuel management or fuel access system, enter into negotiations with not fewer than two (2) sellers of fuel management or fuel access systems for competitive written bids to provide the services and products for the systems. In the event that the governing authority or agency cannot locate two (2) sellers of such systems or cannot obtain bids from two (2) sellers of such systems, it shall show proof that it made a diligent, good-faith effort to locate and negotiate with two (2) sellers of such systems. Such proof shall include, but not be limited to, publications of a request for proposals and letters soliciting negotiations and bids. For purposes of this paragraph (q), a fuel management or fuel access system is an automated system of acquiring fuel for vehicles as well as management reports detailing fuel use by vehicles and drivers, and the term "competitive written bid" shall have the meaning as defined in paragraph (b) of this section. Governing authorities and agencies shall be exempt from this process when contracting for the services and products of fuel management or fuel access systems under the terms of a state contract established by the Office of Purchasing and Travel.
(r) Solid waste contract proposal procedure. Before entering into any contract for garbage collection or disposal, contract for solid waste collection or disposal or contract for sewage collection or disposal, which involves an expenditure of more than Fifty Thousand Dollars ($50,000.00), a governing authority or agency shall issue publicly a request for proposals concerning the specifications for such services which shall be advertised for in the same manner as provided in this section for seeking bids for purchases which involve an expenditure of more than the amount provided in paragraph (c) of this section. Any request for proposals when issued shall contain terms and conditions relating to price, financial responsibility, technology, legal responsibilities and other relevant factors as are determined by the governing authority or agency to be appropriate for inclusion; all factors determined relevant by the governing authority or agency or required by this paragraph (r) shall be duly included in the advertisement to elicit proposals. After responses to the request for proposals have been duly received, the governing authority or agency shall select the most qualified proposal or proposals on the basis of price, technology and other relevant factors and from such proposals, but not limited to the terms thereof, negotiate and enter into contracts with one or more of the persons or firms submitting proposals. If the governing authority or agency deems none of the proposals to be qualified or otherwise acceptable, the request for proposals process may be reinitiated. Notwithstanding any other provisions of this paragraph, where a county with at least thirty-five thousand (35,000) nor more than forty thousand (40,000) population, according to the 1990 federal decennial census, owns or operates a solid waste landfill, the governing authorities of any other county or municipality may contract with the governing authorities of the county owning or operating the landfill, pursuant to a resolution duly adopted and spread upon the minutes of each governing authority involved, for garbage or solid waste collection or disposal services through contract negotiations.
(s) Minority set-aside authorization. Notwithstanding any provision of this section to the contrary, any agency or governing authority, by order placed on its minutes, may, in its discretion, set aside not more than twenty percent (20%) of its anticipated annual expenditures for the purchase of commodities from minority businesses; however, all such set-aside purchases shall comply with all purchasing regulations promulgated by the Department of Finance and Administration and shall be subject to bid requirements under this section. Set-aside purchases for which competitive bids are required shall be made from the lowest and best minority business bidder. For the purposes of this paragraph, the term "minority business" means a business which is owned by a majority of persons who are United States citizens or permanent resident aliens (as defined by the Immigration and Naturalization Service) of the United States, and who are Asian, Black, Hispanic or Native American, according to the following definitions:
(i) "Asian" means persons having origins in any of the original people of the Far East, Southeast Asia, the Indian subcontinent, or the Pacific Islands.
(ii) "Black" means persons having origins in any black racial group of Africa.
(iii) "Hispanic" means persons of Spanish or Portuguese culture with origins in Mexico, South or Central America, or the Caribbean Islands, regardless of race.
(iv) "Native American" means persons having origins in any of the original people of North America, including American Indians, Eskimos and Aleuts.
(t) Construction punch list restriction. The architect, engineer or other representative designated by the agency or governing authority that is contracting for public construction or renovation may prepare and submit to the contractor only one (1) preliminary punch list of items that do not meet the contract requirements at the time of substantial completion and one (1) final list immediately before final completion and final payment.
(u) Procurement of construction services by state institutions of higher learning. Contracts for privately financed construction of auxiliary facilities on the campus of a state institution of higher learning may be awarded by the Board of Trustees of State Institutions of Higher Learning to the lowest and best bidder, where sealed bids are solicited, or to the offeror whose proposal is determined to represent the best value to the citizens of the State of Mississippi, where requests for proposals are solicited.
(v) Insurability of bidders for public construction or other public contracts. In any solicitation for bids to perform public construction or other public contracts to which this section applies including, but not limited to, contracts for repair and maintenance, for which the contract will require insurance coverage in an amount of not less than One Million Dollars ($1,000,000.00), bidders shall be permitted to either submit proof of current insurance coverage in the specified amount or demonstrate ability to obtain the required coverage amount of insurance if the contract is awarded to the bidder. Proof of insurance coverage shall be submitted within five (5) business days from bid acceptance.
(w) Purchase authorization clarification. Nothing in this section shall be construed as authorizing any purchase not authorized by law.
SECTION 52. Section 67-1-71, Mississippi Code of 1972, is amended as follows:
67-1-71. The department may revoke or suspend any permit issued by it for a violation by the permittee of any of the provisions of this chapter or of the regulations promulgated under it by the department.
Permits must be revoked or suspended for the following causes:
(a) Conviction of the permittee for the violation of any of the provisions of this chapter;
(b) Willful failure or refusal by any permittee to comply with any of the provisions of this chapter or of any rule or regulation adopted pursuant thereto;
(c) The making of any materially false statement in any application for a permit;
(d) Conviction of one or more of the clerks, agents or employees of the permittee, of any violation of this chapter upon the premises covered by such permit within a period of time as designated by the rules or regulations of the department;
(e) The possession on the premises of any retail permittee of any alcoholic beverages upon which the tax has not been paid;
(f) The willful failure of any permittee to keep the records or make the reports required by this chapter, or to allow an inspection of such records by any duly authorized person;
(g) The suspension or revocation of a permit issued to the permittee by the federal government, or conviction of violating any federal law relating to alcoholic beverages;
(h) The failure to furnish any bond required by Section 27-71-21 within fifteen (15) days after notice from the department; and
(i) The conducting of any form of illegal gambling on the premises of any permittee or on any premises connected therewith or the presence on any such premises of any gambling device with the knowledge of the permittee.
The provisions of paragraph (i) of this section shall not apply to gambling or the presence of any gambling devices, with knowledge of the permittee, on board a cruise vessel in the waters within the State of Mississippi, which lie adjacent to the State of Mississippi south of the three (3) most southern counties in the State of Mississippi, or on any vessel as defined in Section 27-109-1 whenever such vessel is on the Mississippi River or navigable waters within any county bordering on the Mississippi River. The department may, in its discretion, issue on-premises retailer's permits to a common carrier of the nature described in this paragraph.
The provisions of paragraph (i) of this section shall not apply to the operation of any game or lottery authorized by Sections 1 through 46 of this act.
No permit shall be suspended
or revoked until after the permittee has been provided reasonable notice of the
charges against him for which suspension or revocation is sought and the
opportunity to a hearing before the Board of Tax Appeals to contest such
charges and the suspension or revocation proposed. Opportunity to a hearing is
provided without an actual hearing if the permittee, after receiving reasonable
notice, including notice of his right to a hearing, fails to timely request a
hearing. The permittee may also at any time waive his rights to reasonable
notice and/or to the opportunity to a hearing by agreeing to a suspension or
revocation offered by the department. Notwithstanding the requirement above
that a permit may not be suspended without notice and opportunity to a hearing,
sales of alcoholic beverages by a permittee under a permit for which the bond
under Section 27-71-21 has been cancelled shall be suspended from and after
issuance of the notice provided in * * * paragraph (h) above and
shall continue to be suspended until the bond is reinstated, a new bond is
posted or sufficient cash or securities as provided under Section 27-71-21 are
deposited with the State Treasurer for this permit.
In addition to the causes specified in this section and other provisions of this chapter, the department shall be authorized to suspend the permit of any permit holder for being out of compliance with an order for support, as defined in Section 93-11-153. The procedure for suspension of a permit for being out of compliance with an order for support, and the procedure for the reissuance or reinstatement of a permit suspended for that purpose, and the payment of any fees for the reissuance or reinstatement of a permit suspended for that purpose, shall be governed by Section 93-11-157 or 93-11-163, as the case may be. If there is any conflict between any provision of Section 93-11-157 or 93-11-163 and any provision of this chapter, the provisions of Section 93-11-157 or 93-11-163, as the case may be, shall control.
SECTION 53. Section 97-33-9, Mississippi Code of 1972, is amended as follows:
97-33-9. Except as otherwise provided in Section 97-33-8, if any person shall be guilty of keeping or exhibiting any game or gaming table commonly called A.B.C. or E.O. roulette or rowley-powley, or rouge et noir, roredo, keno, monte, or any faro-bank, or other game, gaming table, or bank of the same or like kind or any other kind or description under any other name whatever, or shall be in any manner either directly or indirectly interested or concerned in any gaming tables, banks, or games, either by furnishing money or articles for the purpose of carrying on the same, being interested in the loss or gain of said table, bank or games, or employed in any manner in conducting, carrying on, or exhibiting said gaming tables, games, or banks, every person so offending and being thereof convicted, shall be fined not less than Twenty-five Dollars ($25.00) nor more than Two Thousand Dollars ($2,000.00), or be imprisoned in the county jail not longer than two (2) months, or by both such fine and imprisonment, in the discretion of the court. Nothing in this section shall apply to any person who owns, possesses, controls, installs, procures, repairs or transports any gambling device, machine or equipment in accordance with subsection (4) of Section 97-33-7 or Section 75-76-34.
This section shall not apply to the operation of any game or lottery authorized by Sections 1 through 46 of this act.
SECTION 54. Section 97-33-11, Mississippi Code of 1972, is amended as follows:
97-33-11. It shall not be lawful for any association of persons of the character commonly known as a "club," whether such association be incorporated or not, in any manner, either directly or indirectly, to have any interest or concern in any gambling tables, banks, or games, by means of what is sometimes called a "rake-off" or "take-out," or by means of an assessment upon certain combinations, or hands at cards, or by means of a percentage extracted from players, or an assessment made upon, or a contribution from them, or by any other means, device or contrivance whatsoever. It shall not be lawful for such an association to lend or advance money or any other valuable thing to any person engaged or about to engage in playing any game of chance prohibited by law, or to become responsible directly or indirectly for any money or other valuable thing lost, or which may be lost, by any player in any such game. If any such association shall violate any of the provisions of this section each and every member thereof shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined in a sum not more than Five Hundred Dollars ($500.00); and unless such fine and costs be immediately paid, shall be imprisoned in the county jail for not less than five (5) nor more than twenty (20) days. Each grand jury shall cause such of the members of such an association as it may choose to appear before them and submit to examination touching the observance or nonobservance by such association of the provisions hereof.
This section shall not apply to the operation of any game or lottery authorized by Sections 1 through 46 of this act.
SECTION 55. Section 97-33-13, Mississippi Code of 1972, is amended as follows:
97-33-13. Any owner, lessee, or occupant of any outhouse or other building, who shall knowingly permit or suffer any of the before mentioned tables, banks, or games, or any other game prohibited by law, to be carried on, kept, or exhibited in his said house or other building, or on his lot or premises, being thereof convicted, shall be fined not less than One Hundred Dollars ($100.00) nor more than Two Thousand Dollars ($2,000.00).
This section shall not apply to the operation of any game or lottery authorized by Sections 1 through 46 of this act.
SECTION 56. Section 97-33-21, Mississippi Code of 1972, is amended as follows:
97-33-21. Any person of full age who shall bet any money or thing of any value with a minor, or allow a minor to bet at any game or gaming-table exhibited by him, or in which he is interested or in any manner concerned, on conviction thereof, shall be fined not less than Three Hundred Dollars ($300.00) and imprisoned not less than three (3) months.
This section shall apply to minors under the age of twenty-one (21) as it might apply to the operation of any game or lottery authorized by Sections 1 through 46 of this act.
SECTION 57. Section 97-33-23, Mississippi Code of 1972, is amended as follows:
97-33-23. Any person of full age who shall bet any money or thing of value with a minor, knowing such minor to be under the age of twenty-one (21) years, or allowing any such minor to bet at any game or games, or at any gaming table exhibited by him, or in which he is interested or in any manner concerned, on conviction thereof, shall be punished by imprisonment in the Penitentiary not exceeding two (2) years.
This section shall apply to minors under the age of twenty-one (21) as it might apply to the operation of any game or lottery authorized by Sections 1 through 46 of this act.
SECTION 58. Section 97-33-31, Mississippi Code of 1972, is amended as follows:
97-33-31. If any person, in order to raise money for himself or another, or for any purpose whatever, shall publicly or privately put up a lottery to be drawn or adventured for, he shall, on conviction, be imprisoned in the Penitentiary not exceeding five (5) years.
This section shall not apply to the operation of any game or lottery authorized by Sections 1 through 46 of this act.
SECTION 59. Section 97-33-33, Mississippi Code of 1972, is amended as follows:
97-33-33. If any person
shall in any way advertise any lottery whatever, no matter where located, or
shall knowingly have in his possession any posters or other lottery
advertisements of any kind * * *, save a regularly issued
newspaper containing such an advertisement without intent to circulate the same
as an advertisement * * *,
he shall, on conviction, be fined not less than Twenty-five Dollars ($25.00)
nor more than One Hundred Dollars ($100.00), or be imprisoned in the
county jail not exceeding three (3) months, or both.
This section shall not apply to the operation of any game or lottery authorized by Sections 1 through 46 of this act.
SECTION 60. Section 97-33-35, Mississippi Code of 1972, is amended as follows:
97-33-35. If any newspaper published or circulated in this state shall contain an advertisement of any lottery whatever, or any matter intended to advertise a lottery, no matter where located, the editor or editors, publisher or publishers, and the owner or owners thereof permitting the same, shall be guilty of a misdemeanor and, on conviction, shall be fined not less than One Hundred Dollars ($100.00) nor more than One Thousand Dollars ($1,000.00), and be imprisoned in the county jail not less than ten (10) days nor more than three (3) months, for each offense. The issuance of each separate daily or weekly edition of the newspaper that shall contain such an advertisement shall be considered a separate offense.
This section shall not apply to the operation of any game or lottery authorized by Sections 1 through 46 of this act.
SECTION 61. Section 97-33-37, Mississippi Code of 1972, is amended as follows:
97-33-37. If any newsdealer or other person shall, directly or indirectly, sell or offer for sale any newspaper or other publication containing a lottery advertisement, he shall be guilty of a misdemeanor and, upon conviction, shall be fined not less than Ten Dollars ($10.00) or imprisoned not less than ten (10) days, or both.
This section shall not apply to the operation of any game or lottery authorized by Sections 1 through 46 of this act.
SECTION 62. Section 97-33-39, Mississippi Code of 1972, is amended as follows:
97-33-39. If any person shall sell, or offer or expose for sale, any lottery ticket, whether the lottery be in or out of this state, or for or in any other state, territory, district, or country, he shall, on conviction, be fined not less than Twenty-five Dollars ($25.00) nor more than One Hundred Dollars ($100.00), or imprisoned in the county jail not less than ten (10) days nor more than sixty (60) days, or both.
This section shall not apply to the operation of any game or lottery authorized by Sections 1 through 46 of this act.
SECTION 63. Section 97-33-41, Mississippi Code of 1972, is amended as follows:
97-33-41. If any person shall buy in this state any lottery ticket, whether the lottery be in or out of this state, or of or in any other state, territory, district, or country, he shall, on conviction, be fined not less than Five Dollars ($5.00) nor more than Twenty-five Dollars ($25.00), or be imprisoned in the county jail not exceeding ten (10) days, or both.
This section shall not apply to the operation of any game or lottery authorized by Sections 1 through 46 of this act.
SECTION 64. Section 97-33-43, Mississippi Code of 1972, is amended as follows:
97-33-43. If any railroad company shall suffer or permit the sale of a lottery ticket of any kind on its cars, or at its depots or depot grounds, or by its employees, no matter where the lottery is located, it shall be guilty of a misdemeanor and, on conviction, shall be fined not less than Twenty Dollars ($20.00) nor more than One Hundred Dollars ($100.00) for every such ticket so sold.
This section shall not apply to the operation of any game or lottery authorized by Sections 1 through 46 of this act.
SECTION 65. Section 97-33-45, Mississippi Code of 1972, is amended as follows:
97-33-45. If the owner or owners of any steamboat shall suffer or permit the sale of a lottery ticket of any kind on his or their boat, or by his or their employees, no matter where the lottery is located, he or they shall be guilty of a misdemeanor and shall, on conviction, be punished as prescribed in Section 97-33-43.
This section shall not apply to the operation of any game or lottery authorized by Sections 1 through 46 of this act.
SECTION 66. Section 97-33-47, Mississippi Code of 1972, is amended as follows:
97-33-47. If any person shall act as agent for any lottery or lottery company, no matter where domiciled or located, or if he shall assume to so act as agent, or if he receive any money or other thing for any such lottery or lottery company, or deliver to any person any ticket or tickets, prize or prizes, or other thing from such lottery or lottery company, he shall, on conviction, be fined not less than One Hundred Dollars ($100.00), nor more than Five Hundred Dollars ($500.00), and be imprisoned in the county jail not less than three (3) months nor more than six (6) months.
This section shall not apply to the operation of any game or lottery authorized by Sections 1 through 46 of this act.
SECTION 67. Section 97-33-49, Mississippi Code of 1972, is amended as follows:
97-33-49. Except as otherwise provided in Section 97-33-51, if any person, in order to raise money for himself or another, shall publicly or privately put up or in any way offer any prize or thing to be raffled or played for, he shall, on conviction, be fined not more than Twenty Dollars ($20.00), or be imprisoned not more than one (1) month in the county jail.
This section shall not apply to the operation of any game or lottery authorized by Sections 1 through 46 of this act.
SECTION 68. This act shall take effect and be in force from and after September 1, 2018.