MS 2020-07-D-Henderson-May-13-2020-Providing-Counsel-to-Winning-Candidate-in-an-Election-Co 2020-05-13

Can a Mississippi county pay an attorney to defend its tax assessor in an election contest appeal?

Short answer: Yes, with a condition. The AG concluded that under Miss. Code Ann. § 19-3-47(1)(b), the Humphreys County Board of Supervisors could hire and pay private counsel from county funds for the current Tax Assessor/Collector in an election-contest appeal, but only if the Board first determined the county has an interest in the litigation, such as avoiding the disruption and cost of a special election, and recorded that finding on its minutes.

Disclaimer: This is an official Mississippi Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Mississippi attorney for advice on your specific situation.

Plain-English summary

Humphreys County had a contested election. The challenger lost in November 2019 but appealed to the Mississippi Supreme Court. The winner, the new Tax Assessor/Collector, asked the Board of Supervisors to retain a private attorney at county expense to defend the appeal. Supervisor Henderson asked the AG whether the county could lawfully spend its money this way.

The AG's answer was yes, conditional. Miss. Code Ann. § 19-3-47(1)(b) authorizes county boards "to employ counsel in all civil cases in which the county is interested." The statute does not directly mention election contests, but the AG had previously held that protecting the county's interest in election finality is a valid statutory interest. Specifically, the county has an interest in avoiding the disruption and expense of a special election if the appeal succeeds and the original result is overturned. That interest justifies hiring private counsel for the winning candidate.

The condition is procedural. The Board has to make a factual determination, in its discretion, that the county has an interest in the litigation, and has to record that determination on its minutes. Without the minutes entry, the expenditure could be challenged as ultra vires. The AG cited two prior opinions (Phillips and Ellis) that established the avoiding-special-election rationale, and two more (Snell and Ferguson) that emphasized the minutes-entry requirement.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Mississippi counties operate under a basic limitation: a county may spend public money only on things authorized by statute. Boards of supervisors do not have inherent power. Miss. Code Ann. § 19-3-47(1)(b) is one of the authorizing statutes, granting boards discretion "to employ counsel in all civil cases in which the county is interested." The statute is broad in form (any civil case, county-interest as the only filter) but narrow in substance because the "county is interested" element does the limiting work.

The opinion does not lay out a definitive test for "county interest," but two reference points emerge from the cited prior opinions:

Election contests have been recognized as triggering county interest because, if the contest succeeds, the county may have to conduct a special election or deal with disruption from changing officeholders mid-term. MS AG Op., Phillips (January 30, 2008), citing MS AG Op., Ellis (July 14, 1993). This is the rationale the AG applied to Humphreys County.
The board's interest determination must be reduced to a documented finding on its minutes. MS AG Op., Snell (January 28, 2016); MS AG Op., Ferguson (February 5, 1996). A naked decision to hire counsel, without a minutes entry, is procedurally defective. Mississippi law generally treats the minutes as the only record of board action, so a board acts only through its minutes.

Practically, a board complying with this opinion would: (1) hold a meeting in regular order, (2) discuss the request from the elected officer, (3) make findings of fact about why the county has an interest in the litigation, (4) vote to retain counsel at county expense, (5) ensure the minutes capture the findings and the vote, and (6) execute an engagement letter with private counsel. Without all of those steps, the expenditure is exposed.

The opinion also raises a follow-on question it does not address: how much the county can spend. Section 19-3-47 caps certain attorney fees. The Board would need to comply with any applicable fee or budget limitation in addition to the interest-finding requirement.

Common questions

Q: What if the Board decides the county does not have an interest?
A: Then the Board cannot use county money to fund the elected officer's defense. The officer would need to fund private counsel personally, or proceed pro se, or rely on whatever else is available in their position. The AG's opinion preserves Board discretion, both to fund and to decline.

Q: Could the county also pay for the challenger's attorney?
A: The opinion is silent. The challenger is not a current officeholder, so the county-interest theory in Phillips and Ellis (avoiding the upheaval of overturning a sitting officeholder) does not run the same direction. The county-interest analysis would have to find a different basis to fund the challenger.

Q: What level of detail does the minutes finding require?
A: The opinion does not specify, but the prior opinions emphasize that the finding be "spread upon the minutes" and "consistent with the facts." A minimal entry (the Board finds it has an interest in the litigation) might survive challenge. A more detailed entry citing Phillips, Ellis, and the specific reasons (disruption to tax collection, cost of a special election, etc.) would be more defensible.

Q: What if the Board hires counsel without making findings, then makes them retroactively?
A: That is risky. The general rule on board minutes is that the minutes record contemporaneous decisions. Retroactive findings to validate a prior expenditure may not save the original action. The cleaner approach is to make findings before authorizing the expenditure.

Q: Could the county recover fees if the appeal succeeds and the loser ends up in office?
A: The opinion does not address fee-shifting. Mississippi election-contest statutes have their own rules about which side bears costs. The county may be able to recover from the contestant if the contest is dismissed as frivolous, but that is a separate question of fee-shifting law.

Citations and references

Statutes:
- Miss. Code Ann. § 19-3-47(1)(b) (Board of supervisors authorized to employ counsel in civil cases)

Prior AG opinions:
- MS AG Op., Phillips (January 30, 2008)
- MS AG Op., Ellis (July 14, 1993)
- MS AG Op., Snell (January 28, 2016)
- MS AG Op., Ferguson (February 5, 1996)

Source

Original opinion text

May 13, 2020

Hon. Delrick Henderson
Humphreys County Supervisor
Post Office Box 547
Belzoni, Mississippi 39038

Re: Providing Counsel to Winning Candidate in an Election Contest

Dear Supervisor Henderson:

The Office of the Attorney General is in receipt of your request for the issuance of an official opinion.

Question Presented

May the Humphreys Board of Supervisors hire an attorney to be paid from county funds to represent the current County Tax Assessor/Collector in an appeal of an election contest?

Background Facts

The County Tax Assessor/Collector, recently elected in November 2019, has requested the Humphreys County Board of Supervisors to retain private counsel on her behalf, to be paid by county funds, to represent her in an on-going election contest initiated by the previous county tax assessor/collector and now pending on appeal before the Mississippi Supreme Court.

Brief Response

The Humphreys County Board of Supervisors may hire and pay for with county funds a private attorney to represent the current tax assessor/collector if the board determines it has an interest in the litigation and spreads that factual determination upon its minutes.

Applicable Law and Discussion

Miss. Code Ann. Section 19-3-47(1)(b) authorizes county boards of supervisors, in their discretion, "to employ counsel in all civil cases in which the county is interested ..." Where the board of supervisors makes a determination, consistent with the facts, that the county has an interest in certain litigation, the county would be authorized to retain and pay for legal counsel to defend that litigation. See, MS AG Op., Snell (January 28, 2016); MS AG Op., Ferguson (February 5, 1996).

This principle is equally applicable to defending persons in election contests. We have previously opined that a county board of supervisors may approve the payment of legal fees for the purpose of protecting the county's interest in seeing the validity of elections are upheld in order to avoid the expense involved in conducting new elections. MS AG Op., Phillips (January 30, 2008)(citing MS AG Op., Ellis (July 14, 1993)(the county has an interest in avoiding a special election).

It is, therefore, the opinion of this office that, pursuant to Section 19-3-47(1)(b), the Humphreys County Board of Supervisors may hire legal counsel to defend its current Tax Assessor/Collector, at the cost and expense of the county, if the board makes a factual determination, spread upon its minutes, that it has an interest in avoiding the disruption and economic cost of changing office holders and holding a new election for the office.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Avery Mounger Lee
Avery Mounger Lee
Special Assistant Attorney General