Jump to ContentJump to Main Navigation
Chaos and CompromiseThe Evolution of the Mississippi Budgeting Process$

Brian A. Pugh

Print publication date: 2020

Print ISBN-13: 9781496830197

Published to University Press of Mississippi: May 2021

DOI: 10.14325/mississippi/9781496830197.001.0001

Show Summary Details
Page of

PRINTED FROM Mississippi SCHOLARSHIP ONLINE (www.mississippi.universitypressscholarship.com). (c) Copyright University Press of Mississippi, 2022. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in MSSO for personal use. Subscriber: null; date: 20 May 2022

Budget Control under Bryant

Budget Control under Bryant

Chapter:
(p.121) Chapter 10 Budget Control under Bryant
Source:
Chaos and Compromise
Author(s):

Brian Pugh

Publisher:
University Press of Mississippi
DOI:10.14325/mississippi/9781496830197.003.0010

Abstract and Keywords

This chapter discusses contributions made to the budget making process by Governor Phil Bryant. Chapter 10 explains how the budget process was changed by Bryant as well as the legislature. This chapters explains how Bryant recommended and was successful in getting the legislature to pass the Financial and Operational Responses That Invigorate Future Years (FORTIFY) Act, which was received positively by the legislature. It also discusses the legislature’s controversial bill known as the Budget Transparency and Simplification Act of 2016 or simply S.B. 2362, which was not well received by the credit rating agencies or state agencies that the bill affected. Chapter 10 also discusses a legislative/executive dispute that landed in court when two legislators sued the governor in Representative Bryant W. Clark and Senator John Horhn v. Governor Phil Bryant et al. (2018).

Keywords:   Governor Phil Bryant, FORTIFY Act, Budget Transparency and Simplification Act of 2016, S.B. 2362, Representative Bryant W. Clark and Senator John Horhn v. Governor Phil Bryant et al. (2018)

Gov. Phil Bryant never tried to penetrate the legislative approval phase the way that his predecessor did, believing that “it is the legislature’s job to appropriate funds, not the governor[’s].”1 Executive and legislative duties in the budget-making process are clearly pointed out in statute, leaving little room for interpretation. Bryant’s budgeting philosophy relayed to his staff was quite simple, “follow the law.”2 Bryant also held the legislature to the same standards. It came as a surprise to many when Bryant drafted a letter to the Senate and House Appropriations Committee chairmen, in his first year in office, encouraging them to stop the practice of issuing legislative intent letters for appropriation bills, which he believed to be unlawful.

During the 2012 legislative session, the Appropriations Committee chairmen added a section to the Mississippi Development Authority’s (MDA) appropriation bill giving the agency a set amount of lump sum spending authority; however, the bill did not specify to the MDA how the funds were to be expended. After the appropriation bill passed both houses and was signed by the governor, the two Appropriations Committee chairmen then wrote an intent letter to the agency head explaining how the funds were to be spent. Bryant questioned whether two legislators could speak for the entire legislature, and he believed that the directive to expend the funds should have been specifically spelled out in the appropriation bill and voted on by the full house and senate. Bryant explained in his letter to the chairmen that “the law simply does not allow the expenditure of funds as you direct and places the agency head in the untenable position of possibly misappropriating public funds if (p.122) he complies with your directive.”3 The end result was that the MDA did not spend the funds as directed in the intent letter.

So, Governor Bryant did not try to insert himself into the legislative approval phase, and he encouraged the Appropriations Committee chairmen to appropriate funds based on the appropriation bills and laws. However, this did not mean that Bryant approved of the budget system in its current format. On the contrary, he believed that the process did not work and needed revamping. Bryant advocated for performance-based budgeting when serving as lieutenant governor, and he continued to advocate for it as governor. In his argument for performance-based budgeting, Bryant explained:

Mississippi’s budget system is broken and must be fixed. Our state cannot be successful in the 21st century with a budget system from the 19th century. Instead of measuring outcomes and appropriating for success, our state budgets currently are set by two deciding factors: what was last year’s budget number and who do you know at the Capitol. This practice is no way to treat tax dollars. We should work smarter, making spending transparent and designing budgets based on performance rather than politics.4

Bryant wanted the law governing the budgeting system changed, but he knew that it was the legislature’s job to change it, not the governor’s. Bryant clearly disapproved of the way that the legislature appropriated funds in the legislative approval phase, but as long as it was the law, he followed it.

Governor Bryant’s philosophy to follow the law was not surprising, being that he previously served as a deputy sheriff. One could imagine Bryant’s surprise when two legislators accused him of breaking the law by usurping the legislature’s budget-making power, and filed a lawsuit to stop him from doing that. The two legislators claimed that when Bryant cut state agency budgets, he was actually interfering with appropriations, which is constitutionally a legislative function. This separation of powers case went to the Mississippi Supreme Court. Bryant believed that cutting agency budgets was a part of “budget control” and not “budget making,” and the high court agreed. The supreme court ruled that budget control is an executive function, not a legislative function.5 If the supreme court had sided with the two legislators, the legislative branch would have had nearly absolute control over the entire budget-making process.

Both the governor and the legislature had important roles to play in making the budget process work, while also improving Mississippi’s fiscal condition. Bryant believed that budgeting based on evidence, along with other sound fiscal policies, contributed to improving the state’s fiscal well-being. “The best measure of our success in governing responsibly is evidence that Mississippi (p.123) is showing real improvements in its efficiency and fiscal health. This includes an increase in cash savings, stability or growth in the state’s credit rating, and evidence that spending on state agencies and programs are [sic] generating results,” explained Bryant.

Important benchmarks for measuring the state’s fiscal success set forth by Bryant in Opportunity Mississippi: Detailing the Roadmap to Success included: (1) adopting and implementing legitimate performance-based budgeting standards; (2) maintaining or increasing the state’s credit rating; (3) adhering to “the 98 percent rule,” which limits the total state general fund appropriations to 98 percent of projected revenues; and (4) filling the Working-Cash Stabilization Reserve Fund (“rainy day fund”) to its statutory limit. The specific benchmark that separated Bryant’s fiscal policy from his predecessor Haley Barbour’s was the push for performance-based budgeting, which was meant to take the politics out of the budget-making process. The argument can be made that Governor Barbour would have been ineffective in the budget process if politics had been removed from it during his time in office. Bryant not only talked about the importance of removing politics from budgeting but also asked for legislation to be introduced to make it law. He proposed the Smart Budget Act in his first executive budget recommendation (EBR), which the legislature rejected, but he was successful in getting other items on his fiscal agenda through the legislative process.

Governor Bryant was not successful in convincing the legislature to adopt meaningful legislation to change Mississippi’s budgeting system to performance-based budgeting. Some legislators agreed with the governor that the current budget process was not perfect, but they did not want to change it and risk getting a process that might be worse. It was never Bryant’s intent to weaken legislative power over the legislative approval phase, but removing politics from the appropriation process would have done just that. Although Bryant was not successful in getting performance-based budgeting passed in Mississippi, he did find success in other fiscal matters. What is impressive about Bryant’s achievements is that he worked with the legislature to get fiscal legislation passed, meaning that those changes would remain unless the law was revised. By contrast, Barbour’s influence on the budget process was due to his personal and political skills and relationships, which left the office of the governor when he did.

Bryant’s Fiscal Accomplishments

Governor Bryant’s fiscal accomplishments included using the executive authority provided to him by law to successfully manage the state’s finances, while also (p.124) getting meaningful legislation passed during special sessions that positively affected the state’s budget and revenue. However, the former caused Bryant to be sued in 2017 by two legislators over the governor’s statutory authority to reduce state agency budgets, claiming that it violated the state constitution. The case, Representative Bryant W. Clark and Senator John Horhn v. Governor Phil Bryant et al. (2018), made it to the Mississippi Supreme Court.6 The State of Mississippi was applauded by the credit rating agencies for its statutory abilities to manage its finances during economic downturns; however, the rating agencies were highly concerned with the lawsuit brought by Clark and Horhn that challenged the governor’s authority to control the budget. The lawsuit began with several executive agencies collaborating on the distinction between budget control and budget making in yet another separation of powers case. The courts ended up ruling in favor of the executive branch over the legislative branch, which was considered a huge win for Governor Bryant and future governors to come.

Important legislation was passed under Bryant’s watch that positively affected his ability to manage Mississippi’s finances. Such legislation included S.B. 2001, passed during the Second Extraordinary Session of 2016, which removed the $50 million rainy day fund transfer cap, for FY 2016 only, to allow for more executive flexibility to deal with budget deficits.7 Furthermore, the legislature raised the transfer cap to $100 million, at the governor’s request for FY 2017, when it passed S.B. 2649 during the 2017 legislative session.8 Bryant recommended and was successful in getting the legislature to pass S.B. 2002, known as the Financial and Operational Responses That Invigorate Future Years (FORTIFY) Act, during the First Extraordinary Session of 2017, which was received positively by the credit rating agencies.9 Perhaps the special session that gained Bryant the most acclaim was the First Extraordinary Session of 2018, which produced the passage of H.B. 1 and S.B. 2001, known as the Mississippi Infrastructure Modernization Act of 2018 and the Alyce G. Clarke Mississippi Lottery Law, respectively.10 All of this legislation had a huge impact on Mississippi’s finances and credit rating.

Bryant’s Fiscal Management

Governor Bryant pledged his commitment to “honest budgeting based on real numbers and financial best practices.”11 Bryant knew that policy makers are judged on their ability to successfully manage the state’s finances in good times and bad. He felt that it was his job as governor to protect the financial integrity of the state, pointing out that financial choices made by policymakers are critical to a state’s financial health. Bryant’s opinion was driven by credit rating agencies, as evident in the following statement:

(p.125) As Moody’s said in its U.S. States Rating Methodology, “Unlike economic factors, which are largely beyond the states’ control, financial results are the product of many decisions and practices determined by state policymakers. While tax collections and expenditures reflect fiscal capacity, and they ebb and flow with economic cycles, the financial choices states make given the economic situations they face—at any point in the economic cycle—are critical.”12

Bryant understood that he was not the only decision maker in the budget-making process and encouraged legislators to avoid bad fiscal habits, such as making unrealistic revenue estimates, deliberately underfunding major line items, and expending nonrecurring funds on recurring expenditures. He urged the legislature to avoid these practices, although they were “politically convenient.”13 Avoiding bad fiscal practices helped the state get through troubling times but did not prevent revenue slowdowns from occurring. Similar to all the governors discussed in previous chapters, Bryant experienced economic slowdowns that forced him to order the state fiscal officer to reduce state agency budgets to make up for revenue collections that failed to meet expectations.

FY 2016 and FY 2017 were by far the most challenging fiscal years during the Bryant Administration, resulting in executive budget cuts being made in both years. Governor Bryant believed that the state was well positioned to deal with declining revenue because of the funds set aside in the state’s rainy day fund and the governor’s statutory authority to reduce state agency budgets if revenue fell below expectations. “During my 2014 State of the State Address, I called on the Legislature to fill the Rainy Day Fund, and the Leadership responded by doing so for two consecutive years. There is no denying that the Rainy Day Fund prevented larger cuts in Fiscal Year 2016,” explained Bryant in his FY 2017 EBR. Bryant decided to use much of the $50 million rainy day fund transfer authority in FY 2016, but he decided to reduce budgets more in FY 2017 so that he could save most of the rainy day fund transfer authority for the end of the fiscal year.

Governor Bryant had the state fiscal officer reduce state agency budgets for the first time in January of 2016 and ended up having to cut again in April, for a combined reduction of $64,791,417. He also directed that $45,208,583 be transferred from the rainy day fund to the State General Fund. “As Governor, I am required by state law to impose budget cuts when revenue collections do not meet our estimates. … I also have authority to transfer up to $50 million from the Working Cash Stabilization Reserve Fund, commonly known as the Rainy Day Fund, to the State General Fund to stabilize the budget when we are experiencing revenue shortfalls,” stated Bryant.14 Bryant’s first round of budget reductions in FY 2016 was for $39,791,417, and he had $35,208,583 transferred (p.126) from the rainy day fund for a combined January adjustment of $75 million. Bryant’s second round of budget reductions that fiscal year came in April for an amount of $25 million, and he also directed a $10 million transfer from the rainy day fund.15

The FY 2016 budget adjustments for $110 million were not enough. After the governor cut state agency budgets in April, there was no room for more budget cuts. Any additional adjustments to the budget would have to be rainy day fund transfers to the general fund. The problem was that the governor had less than $5 million remaining in the rainy day fund transfer authority and did not know if that amount would be sufficient for finishing out the fiscal year. So, the governor called a special session and asked the legislature to remove the rainy day fund transfer cap for that fiscal year. The legislature responded by passing S.B. 2001, which authorized the executive director of the Department of Finance and Administration (DFA) to transfer rainy day funds to the general fund in an amount determined by the governor to alleviate any deficits at the end of FY 2016.16

FY 2017 proved to be as challenging as FY 2016, resulting in budgets being adjusted in September because of a legislative accounting error and being cut three times in January through March. Many governors are forced to have state agency budgets reduced when revenue underperforms. Governors usually wait before cutting budgets in order to give revenue an opportunity to recover; however, this was not done in FY 2017. Governor Bryant explained in a letter to State Fiscal Officer Laura Jackson, “Although it is too early in the fiscal year to determine how revenue collections will perform in FY 2017, budget adjustments in state government are necessary now to adjust for a $56,801,694 accounting error.”17 Some legislators believed that the governor’s budget adjustments were premature, but Bryant disagreed, arguing that agencies could better plan for the cuts the sooner they knew about them.

In addition to the September adjustments, the governor had state agency budgets reduced by $50,974,616 in January, $43 million in February, and $20,446,237 in March. Total cuts from January through March were $114,420,853. Furthermore, Bryant also directed for transfers to be made from the rainy day fund to the general fund in January and February for $4,061,149 and $7 million, respectively.18 Total adjustments and cuts in FY 2017 were $171,222,547, and total transfers from the rainy day fund were $11,061,149. Bryant was not happy having to cut agency budgets, but he believed that the reductions were necessary. In his next-to-last budget cut letter for FY 2017, Bryant defended his fiscal management actions, stating:

It is tempting to leave things alone and hope for revenue collections to improve and offset the shortfall we are experiencing; however, I feel it is imperative that (p.127) we take action based on the best possible information available. If we postpone spending reductions until later, then state agencies must make relatively larger cuts and will have less flexibility/time to handle the necessary cuts.19

Bryant did not arbitrarily order state agency budget cuts for the sake of cutting budgets—he listened to the experts and made decisions accordingly. State Economist Darrin Webb’s annual Legislative Economic Briefing clearly contributed to Bryant’s decision to cut budgets in February. Webb explained in the briefing that Mississippi’s economy was growing, but the growth was not translating into more revenue. Webb also stated that he did not foresee an uptick in revenue for the remainder of the fiscal year.20

Governor Bryant’s office continued to monitor revenue collections for FY 2017 and was convinced that revenue would “not be adequate to support budget expenditures” for the remainder of the fiscal year.21 Therefore, in addition to making his final budget reduction in March, Bryant explained the following to Jackson in the letter:

I am authorizing you to transfer $39 million from the Working Cash-Stabilization Reserve Fund as needed, and I have requested legislation allowing you to access additional funds from the Working Cash-Stabilization Reserve Fund to prevent additional reductions before the end of the fiscal year. We will continue to closely monitor spending and to make fiscally conservative budget decisions.22

The legislature responded to the governor’s request by passing S.B. 2649 during the 2017 legislative session, which raised the $50 million rainy day fund transfer cap to $100 million for FY 2017.23 Bryant believed that all of the actions taken to manage the state’s finances were necessary during the economic downturn. The credit rating agencies did not praise Bryant for the specific actions taken; however, the rating agencies did credit the State of Mississippi for having laws in place that allowed the governor to manage effectively during tough economic times.

Executive Authority Questioned

Judicial intervention has played a major role in shaping Mississippi’s budget-making process, and it all started with the landmark Alexander v. State of Mississippi by and through Allain (1983) case.24 Although the Alexander case forced a change to the legislatively dominated budget-making process, it was the legislature that determined what the process would be. The legislature responded to the Alexander decision by passing S.B. 3050 during the 1984 legislative session, (p.128) known as the Mississippi Administrative Reorganization Act of 1984, which gave the DFA’s predecessor the Fiscal Management Board the authority to carry out the budget control component of the budget execution phase.25 It was the legislature that determined how the executive branch was to keep expenditures in line with revenue. Governors had followed the budget process prescribed by the legislature since 1984 without any issues, so one could only imagine Governor Bryant’s surprise when, more than thirty years after the Alexander case, Rep. Bryant Clark and Sen. John Horhn challenged the governor’s authority to reduce state agency budgets, claiming that it was a constitutional violation. Representative Clark and Senator Horhn’s complaint stated:

  1. 1. This lawsuit seeks to enforce the Mississippi Constitution’s separation of powers doctrine. In Mississippi, the Legislative Branch is responsible for making the budget, while the Executive Branch is charged with controlling the budget. These coequal branches of government are constitutionally prohibited from exercising the powers allotted to the other.

  2. 2. In violation of the separation of powers doctrine, Mississippi Code Section 27-104-13 gives the Executive Branch the power to make monthly “midyear budget cuts” when state general funds are not available to pay the state budget …

  3. 3. By allowing the Executive Branch to usurp the Legislature’s budget-making power, Section 27-104-13 violates the separation of powers doctrine and must be permanently enjoined. If midyear budget cuts are to occur, they must be directed by the only body the Mississippi Constitution allows budget-making activity: the Legislature.26

Through spokesperson Clay Chandler, Bryant disputed the conclusion of the lawsuit, citing the Alexander opinion, where the supreme court ruled that once the taxes are levied and appropriations are made by the legislature, it is the duty of the executive branch to exercise “budget control” within the limits imposed on the governor by the legislature.27

Senior staff attorney Will Bardwell with the Southern Poverty Law Center represented Representative Clark and Senator Horhn. Bardwell argued that state agency budget cuts are part of the budget-making process and that the Mississippi Supreme Court has stated that the Mississippi Constitution says that “this is a power that can only be wielded by the Legislature.”28 Bardwell did not dispute the fact that Governor Bryant had the statutory authority to reduce state agency budgets, but he contended that the state law that gives the governor the authority to make cuts when revenue does not meet projections (p.129) is a violation of the separation of powers clause of the Mississippi Constitution.29 The legislative branch of government, not the executive branch, must make any mid-year budget cuts, the lawsuit argued. “What [the governor] can’t do is circumvent the legislature [and] deprive them of their constitutional authority to make budget making decisions, and [ … ] arbitrarily do it himself. Unfortunately, that’s what he’s been doing,” argued Bardwell.30

Clark and Horhn filed their complaint on May 17, 2017, and on the same day filed a motion for a temporary restraining order (TRO) or preliminary injunction. Judging by both Clark’s and Horhn’s affidavits included with the plaintiffs’ complaint, their grievances seemed to be more about Governor Bryant reducing the budget for the Mississippi Adequate Education Program (MAEP), rather than the governor usurping the legislature’s budget-making power. The Affidavit of Rep. Bryant W. Clark explained the budget-making process, as he understood it, and expressed his thoughts on the most important component of the state budget. Clark’s affidavit stated:

I believe that the most important component of the state budget is the funding for public schools, known as the Mississippi Adequate Education Program (MAEP). For the 2017 fiscal year, the budget allocated $2,036,556,667 to MAEP. This funding is critical because school districts need financial resources in order to educate our children adequately. In February 2017, Governor Bryant cut MAEP by more than $11.2 million. In March 2017, he cut MAEP by more than $8.6 million. These midyear budget cuts occurred without any input, oversight, or voting by the Legislature.31

A similar statement expressing the importance of MAEP funding was made in Senator Horhn’s affidavit. Additionally, Senator Horhn stated, “I don’t know why Governor Bryant cut MAEP by nearly $20 million. I also don’t know what analysis was conducted that allowed the Governor to conclude that schools did not need this $20 million.”32

The legislative leadership that served in the majority of both chambers never questioned the governor’s authority to reduce budgets at the time of the lawsuit, which made it appear that the challenge was about politics. Republicans controlled both the house and the senate, and the governor was a Republican, while both of the challengers were Democrats. When asked about the lawsuit, Governor Bryant stated:

The latest attempt by the Democrats and their allies to use the court system in a desperate grasp for relevance poses a genuine danger to Mississippi credit rating. Rating agencies have said time and again that executive authority to balance a state (p.130) budget is a primary determiner of credit worthiness. The Southern Poverty Law Center apparently holds Mississippi taxpayers in such low regard that it is willing to jeopardize the state’s financial health for a meaningless academic exercise. We will vigorously defend responsible budgeting policies from this ridiculous lawsuit.”33

The lawsuit appeared to be about partisan politics, but Attorney General Jim Hood, who was the only statewide elected Democrat at the time, still represented Republican Gov. Phil Bryant and the other defendants in the suit. More specifically, counsel for the state defendants were Krissy Nobile and Harold Pizzetta from the Office of the Attorney General’s Civil Litigation Division.

The state defendants filed a response in opposition to the plaintiffs’ motion for a TRO on May 30, 2017. Nobile and Pizzetta worked closely with the DFA to understand the budget-making process in its entirety and included the Affidavit of Brian A. Pugh (the deputy executive director of the DFA) with their response, which “explains in further detail the budget making and budget control functions in Mississippi.”34 The affidavit also addressed the MAEP concern raised by the two legislators, explaining:

Neither MDE nor the MAEP is exempt from the State Fiscal Officer’s budget control measures under Code Section 27-104-13. The Legislature has never exercised its discretionary authority to exempt MDE or the MAEP from mid-fiscal year budget reductions under Code Section 27-104-13 for any fiscal year, as it has with many other agencies and programs identified in that statute.35

Nobile went on to explain that the legislature not only has the discretion to exclude MAEP’s appropriation but also “remains free to exclude any appropriation from the budget control measures of Section 27-104-13, preserving the legislature’s final say on the appropriation.”36

A primary source used by the DFA to explain the budget-making and budget control functions was the Alexander case. It is ironic that the defendants and plaintiffs both used the Alexander case to argue their point. In reaction to the plaintiffs’ Alexander reference, Nobile pointed out, “In their complaint and motion for TRO, Plaintiffs primarily place their eggs in one legal basket: Alexander v. State ex rel. Allain. … The Alexander decision, though, does not carry Plaintiffs where they want to go. In fact, if anything, Alexander altogether closes the door on Plaintiffs’ purported constitutional claim.”37 Nobile concluded that the plaintiffs’ motion failed to maintain basic separation of powers principles, and the relief requested ran counter to law and clashed with the very purpose of a TRO. Therefore, the motion for TRO or preliminary injunction should be denied.38

(p.131) Hinds County Chancery Court

Judge Patricia D. Wise of the of the Chancery Court of the First Judicial District of Hinds County heard the motion for a TRO or preliminary injunction on May 31, 2017. After reading the briefs, considering all of the evidence, and hearing the oral arguments made by Bardwell and Nobile, the court denied the motion for a TRO or preliminary injunction and dismissed the plaintiffs’ complaint. Judge Wise used previous court cases to address the plaintiffs’ constitutional challenge to the budget reduction statute, explaining that the plaintiffs “must ‘overcome the strong presumption’ that the Legislature acted within its constitutional authority” when it passed Section 27-104-13.39 Furthermore, she explained that “the courts are without the right to substitute their judgment for that of the Legislature as to the wisdom and policy of the act and must enforce it, unless it appears beyond all reasonable doubt to violate the Constitution.”40 The Chancery Court’s Final Judgment and Order found that the “Plaintiffs have failed to prove that they are entitled to any relief and that Section 27-104-13 is unconstitutional. Accordingly, Plaintiffs’ complaint and all claims asserted in it should be finally dismissed with prejudice. The Court thus DISMISSES all of the Plaintiffs’ claims.”41

Supreme Court

Representative Clark and Senator Horhn appealed the chancellor’s verdict to the Mississippi Supreme Court, and “the issue on appeal [was] whether a statute allowing the Executive Branch to make appropriations decisions violates the separation-of-powers doctrine under the Mississippi Constitution.”42 The executive branch maintained that Section 27-104-13 did not violate the separation-of-powers doctrine, and the supreme court agreed, stating:

While we agree with the Executive that Section 27-104-13 is constitutional, we clarify that this case does not implicate separation of powers because the Executive was exercising its own core power under the Constitution. As the Legislators have failed to overcome the presumption that Section 27-104-13 is constitutional, we affirm the chancellor’s dismissal of the complaint.43

All nine justices agreed with the lower court’s decision, with two of the nine concurring in part.44 If the courts had interpreted the Alexander case the way that the two legislators did with regard to budget control, there would have been no way for the executive branch to control the budget after funds were appropriated if revenue performed poorly. Therefore, a special legislative session (p.132) would have to be called whenever revenue fell short of expectations when the legislature was out of session. If the court had ruled that Section 27-104-13 was unconstitutional, meaning that the governor would have lost the ability to control budgets, there is a good chance that the state’s credit rating would have been downgraded by the credit rating agencies.

The Fortify Act

When Governor Bryant first took office, he set a goal in Opportunity Mississippi: Detailing the Roadmap to Success to maintain or increase the state’s credit rating. Although this task may have appeared to be insignificant, it was actually no small feat. When Bryant first became governor, the State of Mississippi’s credit ratings were AA+, Aa2, and AA by Fitch Ratings, Moody’s Investor Services, and Standard and Poor’s (S&P), respectively. The state maintained its credit rating from 2012 through 2015 with all three credit rating agencies. This all changed in 2016 when Fitch downgraded Mississippi from AA+ to AA. Although the other two rating agencies did not downgrade the state, Moody’s revised the state’s outlook to negative in 2016 and S&P made the same negative revision in 2017.

Prior to being downgraded by Fitch, the state was put on negative outlook. One contributing factor, among many, was the state’s continued use of nonrecurring funds on recurring expenditures. Bryant expressed his frustration with the revised outlook in his FY 2015 EBR stating, “Mississippi received disappointing news last week, as Fitch Ratings changed the outlook on our bond rating from stable to negative. Among the primary reasons for this change was the State’s continued reliance on one-time money to fund recurring expenses.”45 The state’s downgrade and outlook revisions were not surprising to individuals on the governor’s staff familiar with the situation, based on conversations and scorecard results from the credit rating agencies. Fortunately, the scorecard methodologies provided the governor’s office with a guide for positive fiscal reform to prevent future downgrades.

Two months after the 2017 legislative session, Governor Bryant proposed the Financial and Operational Responses That Invigorate Future Years (FORTIFY) Act to the legislature as a way to utilize financial best practices in areas that the state could control.46 The rating agencies’ scorecards for the state pointed out things done well, and things done not so well. Unfortunately, the things that the state was penalized for had been problems plaguing the state for many years, such as having a relatively limited economy, stagnant population growth, below-average wealth and income indicators, etc.47 Instead of focusing on those issues, Bryant decided to focus on improving areas where the state was already fairly strong.48 The governor knew that he had to call a special session (p.133) in 2017 because the legislature had failed to pass appropriation bills for multiple agencies during the regular legislative session, so he took that opportunity to propose the FORTIFY Act.

Senate Appropriations Committee chairman Eugene “Buck” Clarke authored S.B. 2002 during the First Extraordinary Session of 2017, creating the FORTIFY Act. Senator Clarke’s bill included most of what the governor wanted, but it did not include everything. S.B. 2002 passed out of both the house and senate and was signed into law by Bryant, although it had been altered some. Items requested by the governor that made it into the bill included: naming the act; increasing the rainy day fund cap from 7.5 percent to 10 percent of general fund appropriations for the fiscal year; requiring the Legislative Budget Office (LBO) to produce a multi-year financial plan; no longer adding unencumbered cash to the revenue estimate when calculating the 98 percent limitation on appropriation of general funds; and revising the distribution of unencumbered cash at the end of a fiscal year to split between the rainy day fund and the Capital Expense Fund (CEF). One of the financial best practices, requested by the governor but omitted in Clarke’s bill, would have taken away the legislature’s vehicles for using nonrecurring funds on recurring expenditures. This would have been accomplished by amending the laws pertaining to both the Budget Contingency Fund (BCF) and the CEF.

There is no questioning that the BCF is considered nonrecurring, because there is no recurring funding source to deposit into the fund other than transfers made by the legislature. Former Gov. Ronnie Musgrove described the BCF, in his veto message of the legislation creating the fund, as an “uncontrolled legislative fund,” which few budget experts disputed.49 The legislature temporarily stopped appropriating from the BCF because the credit rating agencies frowned on the practice. Bryant recommended that the legislature abolish the BCF in the FORTIFY Act, but the legislature refused.50 Instead of discontinuing the practice of spending one-time money altogether from the BCF, the legislature started funding recurring expenditures from the CEF.

The intended use of the CEF when it was established was for capital improvements and repair and renovations; however, broad language was included in the legislation that allowed the fund to be used for practically any purpose. The legislation provided that “[t]he Capital Expense Fund shall be used for capital expense needs, repair and renovation of state-owned properties and specific projects authorized by the Legislature.”51 The latter part of the sentence stating that the funds could be used for specific projects authorized by the legislature has been interpreted as whatever the legislature chooses to spend it on.

The CEF was created during the 2008 legislative session with bipartisan support when the legislature passed H.B. 1244, authored by House Appropriations (p.134) Committee chairman Johnny Stringer, and signed into law by Gov. Haley Barbour. H.B. 1244 also added the CEF to the unencumbered cash balance distribution performed at the end of the fiscal year, which in theory provided a recurring funding source, assuming that there was any ending cash.52 The problem was that the legislature had more wants and needs than the amount of money in the CEF. As a remedy to the problem, the legislature began to transfer funds from different funding sources into the CEF for one-time capital expense projects and recurring non-capital expense projects. Many policymakers approved of the CEF but disapproved of the way that it was being used. Then–Lieutenant Governor Bryant believed that the CEF should be limited to capital improvements only, and this belief carried over into his governorship. When speaking of the CEF in his FY 2016 EBR, Bryant stated:

Once again, my budget calls for the proper uses of the Capital Expense Fund, which was established during my time as Lieutenant Governor. Each year a portion of ending cash should be set aside to address the capital needs, which results in a decreased need for bonding. Capital Expense Funds should be used for true capital expense needs such as renovation and repair. I will continue to advocate for proper fiscal management of this account.53

Unfortunately for Bryant, the legislature never heeded his advice and continued using the CEF for whatever they wanted. One specific request by Bryant in the FORTIFY Act was to require that the CEF be used for capital improvement needs only. The governor asked the legislature to remove the broad language that gave the legislature authority to use the fund any way it pleased. However, the legislature rejected Bryant’s request, electing to keep its autonomy over the fund. Although the governor failed to persuade the legislature to revise the CEF language, it did not take away from the other positive gains made by the FORTIFY Act.

Governor Bryant was commended by the credit rating agencies for pro-actively managing the state’s finances and for having the executive authority to do so. Passing the FORTIFY Act enhanced the governor’s ability to manage the state’s finances even more. After revising Mississippi’s rating from negative to stable in 2018, Standard and Poor’s (S&P) stated, “We consider Mississippi’s financial management practices strong under its Financial Management Assessment methodology, indicating our view that practices are well embedded and likely sustainable.”54 Moody’s also revised the state’s outlook from negative to stable. The 2018 outlook revisions put the state on stable outlook by all three credit rating agencies, since Fitch already had the state’s outlook as stable.

(p.135) Budget Transparency and Simplification Act of 2016

The FORTIFY Act likely would not have come to fruition if it had not been for the legislature’s failure to pass a consequential technical amendments bill for the Mississippi Budget Transparency and Simplification Act of 2016 during the 2017 legislative session, which forced the governor to call a special session for that purpose.55 Since the legislature would already be in session for a technical amendments and appropriation bills, Bryant added the FORTIFY Act to the agenda of the special session. The technical amendments bill was the most controversial bill on the calendar during the First Extraordinary Session of 2017. Most of the objections to the technical amendments bill were a carryover of the same objections that were raised when the legislature passed S.B. 2362 during the 2016 legislative session, which created the Budget Transparency and Simplification Act.

S.B. 2362 was authored by Senate Appropriations chairman Eugene “Buck” Clarke, and it was portrayed by both the legislature and the media as a broad, sweeping budget reform act that would change most special fund agencies to general fund agencies so that they would have to fight for their piece of the budget “pie” of general funds.56 On board with Senator Clarke was House Appropriations chairman Herb Frierson, who explained that after the passage of the act, special fund agencies would no longer have the luxury of “silo-ing that money. … They will have to come to us each year and justify their budget. They will be subject to fluctuations and the rise and fall of revenue, just like education is, just like mental health is.”57 However, the bill that actually passed was not nearly as broad or encompassing as it was portrayed, because it affected only sixteen special fund agencies out of around sixty-five, which was fairly insignificant in the grand scheme of the entire state budget.58 The legislature anticipated that the general fund would receive $130,010,225 in new revenue resulting from S.B. 2362, which is not that much, considering that the legislature appropriated $2,300,633,016 in special funds a year earlier in FY 2016.59 In addition to affecting only a small number of agencies, the bill was poorly drafted in several ways, which caused some of the funds transfers to not be made. In eight written official opinions and “several informal discussions” with agency heads, the Office of the Attorney General said that a total of $79.4 million in special funds could not legally be swept from the agencies into the general fund, because of problems under the Mississippi Constitution.60

Attorney General Jim Hood referred to S.B. 2362 as “legally and constitutionally flawed.”61 Hood pointed out conflicting language and other problems in the bill. He explained that the bill specifically stated that it “shall not apply to any trust fund account,” but then it attempted to sweep funds from trust fund accounts into the general fund. Additionally, the bill abolished numerous (p.136) special funds but failed to amend the laws that created them, which Hood said conflicted with a Mississippi Constitution section that prohibits the legislature from amending a law by reference. Other agency heads noticed similar inconsistencies in the bill and requested attorney general’s opinions concerning the legality of the bill.

One of the first agencies to request an official opinion from the attorney general was the Mississippi Tort Claims Board, after being informed that its trust fund would be “abolished and all funds swept into the State General Fund.”62 Hood’s office explained to the board in its opinion, “This office does not question the Legislature’s authority to make statutory changes. The question here is did the Legislature, through S.B. 2362 and the amendments to Section 11-46-17, actually make these changes? It is the opinion of this office that the Legislature did not and that the language … of S.B. 2362 and the actual amendments to Section 11-46-17 do not abolish or authorize sweeping of the Tort Claims Fund.”63 Additionally, the opinion cited Section 61 of the Mississippi Constitution, which provides that “[n]o law shall be revived or amended by reference to its title only, but the section or sections, as amended or revived, shall be inserted at length.”64 Because of the legislature’s failure to properly amend the necessary code sections, the newly appointed state fiscal officer and executive director of the DFA, Laura Jackson, followed the attorney general’s opinion and did not sweep into the State General Fund the funds of the Tort Claims Board or those of any other agencies whose code sections were not properly amended. “Just as all past Executive Directors of the Department of Finance and Administration have done, we do plan to follow the opinions of the Attorney General,” said Jackson.65

Jackson assumed the role of state fiscal officer after Kevin Upchurch’s abrupt retirement in June 2016. Upchurch had tried to warn the legislature prior to the passage of S.B. 2362 that the bill failed to amend the necessary code sections to make it work, but the bill still passed, forcing him to request an attorney general’s opinion for the DFA a few days before his retirement. Jackson accepted her appointment from Governor Bryant knowing that the first item on her agenda would be figuring out how to carry out the inconsistent and incomplete provisions of S.B. 2362. “Because the previous state fiscal officer had been so vocal in his opposition to the bill, it honestly would have been very difficult for him to implement. When I started this job on July 1, 2016, my mission was to implement the law, even though we were faced with agency heads who did not agree with the plan and numerous dissenting attorney general’s opinions,” explained Jackson.66

Governor Bryant knew that S.B. 2362 was unpopular with the agencies affected by it, but he believed that the decision to sweep special funds into (p.137) the general fund was the legislature’s to make, not the executive branch’s. However, Bryant was not blind to the issues with the bill, so he called for a working group of budgeting experts, led by Jackson, to review and identify the perceived issues with the bill, so that they could be addressed at the beginning of the 2017 legislative session.67 The working group analyzed the problems and made a recommendation to the legislature for a technical amendments bill to correct the flaws of S.B. 2362. The legislature received the working group’s recommendation, and the house and senate passed S.B. 2625 during the 2017 legislative session, but the bill died in conference committee near the end of the session. The governor then called the legislature back for a special session to take up another technical amendments bill, S.B. 2001, and this bill passed and was signed into law.68

The effort to fix the flawed Budget Transparency and Simplification Act was long and tedious. In summing up the process, Jackson explained that “to be honest, it was a laborious process. The legislation would never have been successfully implemented had we not maintained an open line of communication with the legislative leadership and the sixteen agencies that were directly affected.”69 One of the working group’s recommendations was to switch certain agencies back to being special fund agencies again. The legislature took nearly all of the working group’s recommendations, which further diluted the scope of the act. During the three years after the act passed, several other agencies were removed from the act so that only eight of the sixteen agencies originally covered by the act remained as exclusively general fund agencies.

Despite its lofty name and ambitious purpose, the Budget Transparency and Simplification Act never came close to accomplishing what it was portrayed to be. The agencies that were affected by it were relatively minor agencies and collectively made up only a small part of the overall budget. Consequently, the act has made little significant impact on the budgeting process in Mississippi.

Saving as a Priority

Bryant paid close attention to the credit rating agencies’ support of Mississippi’s rainy day fund and its 98 percent limitation on appropriation of general funds. Similar to his predecessor Haley Barbour, Bryant called on the legislature to fill the rainy day fund to its statutory limit and to adhere to the 98 percent limitation. The legislature suspended the 98 percent limitation under both Barbour and Bryant, although being encouraged by the governors not to do so. Barbour and Bryant both wanted 2 percent set aside in order to be in a better position to fill the rainy day fund. The rainy day fund was filled to its statutory limit in FY 2008, while Barbour was governor and Bryant was lieutenant governor, and (p.138) again in FY 2014 and FY 2015 while Bryant was governor. Bryant ended up taking the practice of saving to another level when he requested that the legislature raise the statutory rainy day fund limit cap from 7.5 percent of appropriated general funds to 10 percent, which became law when he signed the FORTIFY Act. The credit rating agencies saw the act as a move in the right direction and as a way to encourage more savings. Every dollar put into a reserve was a dollar not spent. Fitch explained that “maintenance of reserves provide[s] the state with ample capacity to address a moderate downturn scenario.”70

In Bryant’s FY 2020 budget recommendation, he highlighted how the state ended FY 2018 with just under a $120 million surplus, which allowed nearly $60 million to be transferred each to the rainy day fund and the CEF. The transfer to the rainy day fund brought the balance to approximately $350 million. Bryant stated that the transfers to both funds would not have been nearly as much if the FORTIFY Act had not passed. Bryant’s budget recommendation also put forth a plan to get the rainy day fund balance to nearly $460 million by FY 2021.71 Bryant’s plan used general fund revenue estimates recommended by the revenue estimating committee, which had recommended a revision to the FY 2019 revenue estimate, and also made a FY 2020 recommendation to be jointly adopted for the executive and legislative budget recommendations. The Joint Legislative Budget Committee (JLBC) and the governor adopted the FY 2020 recommendation, but not the FY 2019 revised estimate. The revenue estimating committee had recommended raising the FY 2019 revenue estimate to $5.758 billion. Assuming that the revenue estimating committee was correct in its estimate, $102 million would have been available for the end-of-year distribution at the end of FY 2019. In discussing his plan, Bryant explained:

Although the Joint Legislative Budget Committee (JLBC) and I elected to not revise the FY 2019 estimate, I agree with the revenue estimating [committee’s] FY 2019 recommendation and believe that the additional funds should not be appropriated but put into reserves. By law, any excess cash from the close of FY 2019 would be directed to the Rainy Day Fund and Capital Expense Fund. The Rainy Day Fund balance will be just over $400 million after the transfer. Additionally, this EBR recommends spending only 98 percent of estimated revenue in FY 2020, which leaves $116 million available for the end of year distribution. After $750,000 is transferred to the Municipal Aid Fund, $57.6 million will be transferred to both the Capital Expense Fund and Rainy Day Fund. The Rainy Day Fund balance for FY 2021 will be approximately $458 million.72

If the revenue estimating committee’s figures were to come to fruition according to Bryant’s plan, the FY 2021 rainy day fund would have the highest amount ever (p.139) in the account. If the FY 2021 general fund revenue estimate stayed exactly the same as the FY 2020 estimate of $5,802,200,000, and 2 percent was set aside, the general funds left to be appropriated would have been $5,686,156,000. The rainy day fund would have been full before passage of the FORTIFY Act with Bryant’s savings plan. However, with the new cap at 10 percent of appropriated general funds, Bryant’s FY 2021 rainy day fund plan would have needed approximately $142 million in additional funds to fill the account to its new statutory limit.

Critics of the FORTIFY Act mocked the move to increase the cap on the rainy day fund, saying that the state had trouble filling the rainy day fund when the cap was set at 7.5 percent, and believed that it would really struggle to fill the fund at 10 percent. However, to the surprise of many, revenue exceeded expectations at the end of FY 2019, only two years after the passage of the FORTIFY Act, which provided enough funds to fully fill the rainy day fund to its new statutory limit of 10 percent—resulting in the highest amount ever in the history of the rainy day fund. This is only the fifth time that the rainy day fund has been filled since its creation.

Mississippi Lottery

Mississippi lawmakers had been calling for a lottery for decades to no avail, ever since the legal pathway was cleared in 1992 after voters chose to remove the state’s constitutional prohibition of a lottery. That all changed in 2018. Governor Bryant’s FY 2018 EBR briefly mentioned a lottery but failed to offer a full endorsement. However, he did allude to being in favor of a lottery by referencing how well a state with similar demographics to Mississippi was doing with its lottery. Bryant explained that Arkansas received $80 million from its lottery and that Mississippi had the potential to generate more. “The Department of Revenue estimates that a state lottery would generate $88 million to $100 million annually for the state. Because of that, I am open to a general discussion about the implementation of a lottery in Mississippi,” stated Bryant.73 Bryant attempted to and was successful at changing the lottery narrative to one strictly about revenue. Bryant, who in the past opposed a lottery, now believed that the issue should at least be considered by the legislature. One thing that changed Bryant’s mind was the fact that the state was losing revenue, because many Mississippians were traveling to neighboring states to purchase lottery tickets, which he stated was a strong argument for enacting a lottery.74

Knowing that Governor Bryant was open to having a lottery discussion appeared to cause the momentum for a lottery to grow; however, the legislature’s two presiding officers, Speaker Philip Gunn in the house and Lt. Gov. Tate (p.140) Reeves in the senate, continued to oppose a lottery. Speaker Gunn explained, “I have been clear that I do not support a lottery. I have not changed my mind. I do not believe a lottery is based on sound economic policy, and it violates a number of conservative, Republican principles.”75 When Lieutenant Governor Reeves was asked in an earlier interview about the potential for a state lottery, he expressed concerns that a lottery might have an adverse effect on existing revenue. “If one’s goal is to increase revenue to the state, the question that must be answered: Would any perceived increase in revenue from a lottery be offset by reductions in sales tax collections and gaming receipts?” Reeves said.76 Furthermore, Reeves explained, “I personally am opposed to the lottery in Mississippi. … But I do believe a majority of Senators would like to vote to enact a lottery.”77

Governor Bryant echoed Reeves’s claim that a majority of senators preferred to enact a lottery, and he also believed that legislators in the house shared those same sentiments. Detecting a strong appetite for a lottery, Bryant called a special session in 2018 to address the issue. He wanted the funds generated from the lottery to go toward repairing Mississippi’s crumbling roads and bridges. The principal author of the lottery legislation was Sen. Philip Moran, and it was assigned to the Senate Highways and Transportation Committee. The lottery legislation, S.B. 2001, passed during the First Extraordinary Session of 2018, created a state lottery that was to be administered by a corporation known as the Mississippi Lottery Corporation.78 Explaining Mississippi new lottery, Bryant stated:

The lottery will be administered by the Mississippi Lottery Corporation Board of Directors. The Lottery Corporation is a quasi-governmental entity that is intended to operate like a private corporation. It will not receive any state appropriation and will operate on its own revenues … The Corporation is charged with managing the lottery in a manner that will maximize revenue to the state … Until June 30, 2028, money deposited into the Lottery Proceeds Fund shall be paid into the State Highway Fund to provide funds to repair, renovate and maintain highway and bridges of the state. However, all such monies deposited into the Lottery Proceeds Fund over $80 million 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.79

S.B. 2001 passed both houses with bipartisan support. One significant change to the lottery legislation was its name. The version of S.B. 2001 that was introduced by Senator Moran and passed the Senate was referred to as the “Mississippi (p.141) Lottery Law.” However, the name was amended in the house, and included in the final bill, to be referred to as the “Alyce G. Clarke Mississippi Lottery Law” in honor of longtime House Democratic Rep. Alyce Clarke. Representative Clarke had been sponsoring lottery legislation each regular session since 2004, with no success.80

Governor Bryant received much praise for his involvement in the First Extraordinary Session of 2018, which was arguably the most successful session during his administration. In addition to getting the legislature to pass Mississippi’s first lottery, he was credited with influencing the content of the Mississippi Infrastructure Modernization Act of 2018 (H.B. 1), which provided a steady stream of funding for current and future infrastructure needs and also provided $300 million in revenue bonds for infrastructure.81 In summarizing the special session, the Jackson Clarion-Ledger reported that the special session “was an historic affair, and Mississippians should soon see better roads and lottery tickets for sale as a result. In all, Bryant got his special session agenda passed in five days, with few alterations. No easy feat.”82 (p.142)

Notes:

(1.) Comments made by Gov. Phil Bryant to his director of finance, Brian Pugh.

(2.) Prior to serving in public service, Phil Bryant’s background in law enforcement played a major role in shaping his philosophy to simply “follow the law.” Bryant began his service in statewide elective office and his path to becoming governor when he was plucked from relative obscurity as a five-year member of the Mississippi House of Representatives in November 1996 by Gov. Kirk Fordice, who appointed him to serve as state auditor after Democratic Auditor Steve Patterson resigned. Bryant was subsequently elected to a full term as auditor in 1999 and reelected in 2003. He was elected lieutenant governor in 2007 and then elected governor in 2011 and reelected in 2015.

(3.) Governor Bryant’s letter to Senate Appropriations Committee chairman Eugene “Buck” Clarke and House Appropriations Committee chairman Herb Frierson concerning the Mississippi Development Authority’s transfer of budget contingency funds to the Cleveland Music Foundation for the GRAMMY Museum in Cleveland, Mississippi. (June 20, 2012).

(4.) Gov. Phil Bryant. “Opportunity Mississippi: Detailing the Roadmap to Success.” 2012, 26.

(p.179) (5.) Representative Bryant W. Clark and Senator John Horhn v. Governor Phil Bryant, State Fiscal Officer Laura Jackson, Mississippi Department of Education and State Treasurer Lynn Fitch, No. 2017-CA-00750-SCT (Miss. 2018).

(6.) In addition to Gov. Phil Bryant being named in the lawsuit, State Fiscal Officer Laura Jackson was also sued along with the State Treasurer Lynn Fitch and the Mississippi Department of Education. Representative Bryant W. Clark and Senator John Horhn v. Governor Phil Bryant, State Fiscal Officer Laura Jackson, Mississippi Department of Education and State Treasurer Lynn Fitch, No. 2017-CA-00750-SCT (Miss. 2018).

(7.) General Laws of Mississippi of the Second Extraordinary Session of 2016, Ch. 1.

(8.) General Laws of Mississippi of 2017, Ch. 440, Section 3.

(9.) General Laws of Mississippi of the First Extraordinary Session of 2017, Ch. 6.

(10.) H.B. 1, General Laws of Mississippi of the First Extraordinary Session of 2018, Ch. 1; S.B. 2001, General Laws of Mississippi of the First Extraordinary Session of 2018, Ch. 2.

(11.) Gov. Phil Bryant, State of Mississippi Executive Budget Recommendation for FY July 1, 2018, to June 30, 2019.

(12.) Bryant, State of Mississippi Executive Budget Recommendation for FY July 1, 2018, to June 30, 2019.

(13.) Bryant, State of Mississippi Executive Budget Recommendation for FY July 1, 2018, to June 30, 2019.

(14.) Gov. Phil Bryant’s budget cut letter to State Fiscal Officer Kevin Upchurch, January 20, 2016.

(15.) Bryant’s budget cut letter to Upchurch, January 20, 2016.

(16.) General Laws of Mississippi of the Second Extraordinary Session of 2016, Ch. 1.

(17.) Gov. Phil Bryant’s budget cut letter to State Fiscal Officer Laura Jackson, September 7, 2016.

(18.) Gov. Phil Bryant’s budget cut letter to State Fiscal Officer Laura Jackson, January 12, 2017, February 21, 2017, and March 24, 2017.

(19.) Gov. Phil Bryant’s budget cut letter to State Fiscal Officer Laura Jackson, February 21, 2017.

(20.) Bryant’s budget cut letter to Jackson, February 21, 2017.

(21.) Gov. Phil Bryant’s budget cut letter to State Fiscal Officer Laura Jackson. March 24, 2017.

(22.) Bryant’s budget cut letter to Jackson, March 24, 2017.

(23.) General Laws of Mississippi of 2017, Ch. 440, Section 3.

(24.) Alexander v. State of Mississippi by and through Allain, 441 So. 2d 1329 (Miss. 1983).

(25.) General Laws of Mississippi of 1984, Ch. 488.

(26.) Rep. Bryant W. Clark and Sen. John Horhn’s Complaint. In the Chancery Court of Hinds County, First Judicial District, made by Will Bardwell, Attorney for the Plaintiffs (filed on May 17, 2017), 1–2.

(27.) Bobby Harrison, “Lawsuit Questions Governor’s Ability to Make Cuts,” Northeast Mississippi Daily Journal (Jackson Bureau), May 18, 2017.

(30.) Mark Rigsby, “SPLC Challenging Governor’s Budget Cutting Authority,” Mississippi Public Broadcasting, May 19, 2017, http://www.mpbonline.org/blogs/news/2017/05/19/splc-challenging-governors-budget-cutting-authority/ (accessed on June 1, 2017).

(31.) Affidavit of Representative Bryant W. Clark. (EXHIBIT 1). In the Chancery Court of Hinds County, First Judicial District. Case: Representative Bryant Clark and Senator John (p.180) Horhn v. Governor Phil Bryant, State Fiscal Officer Laura Jackson, The Mississippi Department of Education, and State Treasurer Lynn Fitch (May 14, 2017).

(32.) Affidavit of Senator John Horhn. (EXHIBIT 2). In the Chancery Court of Hinds County, First Judicial District. Case: Representative Bryant Clark and Senator John Horhn v. Governor Phil Bryant, State Fiscal Officer Laura Jackson, The Mississippi Department of Education, and State Treasurer Lynn Fitch (May 14, 2017).

(33.) Governor Bryant’s statement, released by spokesperson Clay Chandler, regarding what the governor referred to as a “meaningless academic exercise” (May 18, 2017).

(34.) Jim Hood, Attorney General, State of Mississippi and Krissy C. Nobile and Harold Pizzetta, Response in Opposition to Motion for Temporary Restraining Order or Preliminary Injunction. In the Chancery Court of Hinds County, First Judicial District, made by Will Bardwell, Attorney for the Plaintiffs (Filed on May 30, 2017).

(35.) Affidavit of Brian A. Pugh (EXHIBIT A). In the Chancery Court of Hinds County, First Judicial District. Case: Representative Bryant Clark and Senator John Horhn v. Governor Phil Bryant, State Fiscal Officer Laura Jackson, The Mississippi Department of Education, and State Treasurer Lynn Fitch (May 26, 2017).

(36.) Jim Hood, Attorney General, State of Mississippi, and Krissy C. Nobile and Harold Pizzetta Response in Opposition to Motion for Temporary Restraining Order or Preliminary Injunction. In the Chancery Court of Hinds County, First Judicial District, made by Will Bardwell, Attorney for the Plaintiffs (Filed on May 30, 2017).

(37.) Hood, Nobile, and Pizzetta, Response in Opposition to Motion for Temporary Restraining Order or Preliminary Injunction.

(38.) Hood, Nobile, and Pizzetta, Response in Opposition to Motion for Temporary Restraining Order or Preliminary Injunction.

(39.) Chancellor Patricia D. Wise, Final Judgement and Order, the Chancery Court of Hinds County, First Judicial District, referencing 5K Farms, Inc. v. Mississippi Department of Revenue, 94 So. 3d 221, 226 (Miss. 2012), quoting Cities of Oxford, Carthage, Louisville, Starkville and Tupelo v. Northeast Mississippi Electric Power Association, 704 So. 2d 59, 65 (Miss. 1997), June 2, 2017, 3.

(40.) Chancellor Patricia D. Wise, Final Judgement and Order, the Chancery Court of Hinds County, First Judicial District, referencing Pathfinder Coach Div. of Superior Coach Corp. v. Cottrell, 216 Miss 358, 62 So. 2d 383,385 (1953), June 2, 2017, 3.

(41.) Chancellor Patricia D. Wise. Final Judgement and Order, the Chancery Court of Hinds County, First Judicial District, June 2, 2017, 4.

(42.) Representative Bryant W. Clark and Senator John Horhn v. Governor Phil Bryant, State Fiscal Officer Laura Jackson, Mississippi Department of Education and State Treasurer Lynn Fitch, No. 2017-CA-00750-SCT (Miss. 2018).

(43.) Representative Bryant W. Clark and Senator John Horhn v. Governor Phil Bryant, State Fiscal Officer Laura Jackson, Mississippi Department of Education and State Treasurer Lynn Fitch, No. 2017-CA-00750-SCT (Miss. 2018).

(44.) All nine Supreme Court justices affirmed the chancery court’s order: Robert Cham-berlin, William (Bill) Waller Jr., Michael Randolph, James Kitchens, Leslie King, James Maxwell, Dawn Beam, Josiah Coleman, and David Ishee. The latter two concurred in part.

(45.) Gov. Phil Bryant, State of Mississippi Executive Budget Recommendation for FY July 1, 2014, to June 30, 2015.

(46.) Gov. Phil Bryant’s FORTIFY Act presentation created for the legislature, May 30, 2017.

(47.) Standard and Poor’s (S&P) analysis for the State of Mississippi.

(p.181) (48.) Gov. Phil Bryant’s FORTIFY Act presentation created for the legislature. May 30, 2017.

(49.) Gov. Ronnie Musgrove, veto message for S.B. 2680 on March 30, 2001. General Laws of Mississippi of 2001, Ch. 521.

(50.) In 2015 the State of Mississippi received a settlement related to damages caused by the BP Deepwater Horizon oil spill in the Gulf of Mexico that occurred in 2010. In the settlement, the State of Mississippi would receive funds over a period of time that, by state law, were to be deposited into the Budget Contingency Fund (BCF). Governor Bryant proposed abolishing the BCF and replacing it with the Gulf Coast Restoration Reserve Fund, in his original Idea for the FORTIFY Act. Bryant’s proposal included the legislature deciding how funds deposited into the newly created fund were to be spent. Although the oil spill settlement funds were not addressed in the FORTIFY Act that was passed, the legislature in the First Extraordinary Session of 2018 created the Gulf Coast Restoration Fund and the State BP Settlement Fund for the deposit of the settlement funds, instead of their being deposited into the BCF. General Laws of Mississippi of the First Extraordinary Session of 2018, Ch. 3. However, the legislature still did not abolish the BCF.

(51.) General Laws of Mississippi of 2008, Ch. 455, Section 2.

(52.) General Laws of Mississippi of 2008, Ch. 455, Section 2.

(53.) Gov. Phil Bryant, State of Mississippi Executive Budget Recommendation for FY July 1, 2015, to June 30, 2016.

(54.) Standard and Poor’s (S&P) analysis for the State of Mississippi.

(55.) Another important reason that the governor was forced to call a special session was because the legislature had failed to pass the annual appropriation bills for the Mississippi Department of Transportation (S.B. 2978) and the Office of the Attorney General (H.B. 1492) during the 2017 legislative session, and those agencies’ appropriation bills were passed during the special session.

(56.) General Laws of Mississippi of 2016, Ch. 459

(57.) Geoff Pender, “Legislature Sweeps Special Funds to Cover Shortfalls,” Jackson Clarion-Ledger, April 15, 2016.

(58.) S.B. 2362, Section 3(1), provided, “From and after July 1, 2016, the expenses of the following enumerated state agencies shall be defrayed by appropriation of the Legislature from the State General Fund: the State Fire Marshal, the State Fire Academy, the Office of Secretary of State, the Mississippi Public Service Commission, the Mississippi Department of Information Technology Services, the State Personnel Board, the Mississippi Department of Insurance, the Mississippi Law Enforcement Officers’ Minimum Standards Board; the Mississippi Tort Claims Board; the Mississippi Gaming Commission; the Mississippi Oil and Gas Board; the Mississippi Department of Revenue—License Tag; the Office of the State Public Defender; the Mississippi Workers’ Compensation Commission; the Office of Attorney General; and the Mississippi Department of Finance and Administration.”

(59.) Joint Legislative Budget Committee, State of Mississippi Budget Bulletin for FY 2017.

(60.) Adam Ganucheau, “Hood’s Ruling on Special Funds Will Apply for Now,” in Mississippi Today, August 9, 2016.

(61.) Geoff Pender, “Hood: Legislature Used ‘Cover-Up’ to Hide Budget Holes,” Jackson Clarion-Ledger, June 21, 2016.

(62.) Attorney General’s Opinion, “Opinion regarding the Effect of Senate Bill 2362 on the Mississippi Tort Claims Act,” requested by Ms. Lea Ann McElroy, Administrator. 2016 WL 3876460 (Miss. A.G.). Opinion No. 2016–0026. June 13, 2016.

(p.182) (63.) Attorney General’s Opinion, “Opinion regarding the Effect of Senate Bill 2362 on the Mississippi Tort Claims Act.”

(64.) Attorney General’s Opinion, “Opinion regarding the Effect of Senate Bill 2362 on the Mississippi Tort Claims Act.”

(66.) Interview with State Fiscal Officer Laura Jackson (August 19, 2019).

(67.) Gov. Phil Bryant, State of Mississippi Executive Budget Recommendation for FY July 1, 2017, to June 30, 2018.

(68.) General Laws of Mississippi of the First Extraordinary Session of 2017, Ch. 7.

(69.) Interview with State Fiscal Officer Laura Jackson (August 19, 2019).

(70.) Gov. Phil Bryant, State of Mississippi Executive Budget Recommendation for FY July 1, 2019, to June 30, 2020.

(71.) Bryant, State of Mississippi Executive Budget Recommendation for FY July 1, 2019, to June 30, 2020.

(72.) Bryant, State of Mississippi Executive Budget Recommendation for FY July 1, 2019, to June 30, 2020.

(73.) Bryant, State of Mississippi Executive Budget Recommendation for FY July 1, 2017, to June 30, 2018.

(74.) Bobby Harrison, “Lottery Has Momentum, Not Embraced by Legislature’s Presiding Officers,” Northeast Mississippi Daily Journal (Jackson Bureau), December 29, 2017.

(75.) Sarah Ulmer, “Speaker Philip Gunn Creates Lottery Study Commission,” NewsMissis-sippi, May 4, 2017.

(76.) Adam Ganucheau, “Lawmakers Hesitant to Gamble on Lottery,” Mississippi Today, August 22, 2016.

(78.) General Laws of Mississippi of the First Extraordinary Session of 2018. Ch. 2.

(79.) Bryant, State of Mississippi Executive Budget Recommendation for FY July 1, 2019, to June 30, 2020.

(81.) H.B. 1 provided revenue bonds in the amount not to exceed $300 million, which was authorized to be issued and the proceeds allocated as follows: up to $250 million to the Emergency Road and Bridge Repair Fund and up to $50 million to the 2018 Transportation and Infrastructure Improvements Fund. General Laws of Mississippi of the First Extraordinary Session of 2018. Ch. 1.

(82.) Geoff Pender, “Special Session: Here’s What Happened,” Jackson Clarion-Ledger, August 29, 2018.