MS 2020-07-E-Fair-January-29-2020-Clarification-of-Section-25-3-3-of-the-Mississippi-Code-A 2020-01-29

Does a Mississippi tax collector in a two-district county get $7,000 extra pay or just $3,500?

Short answer: $7,000. The AG concluded that under Miss. Code Ann. § 25-3-3(5), the Hinds County Tax Collector was entitled to two mandatory $3,500 supplements: one for serving in a county with two judicial districts and one for maintaining two full-time, separately-staffed offices. The Board of Supervisors could not deduct $3,500 from his salary, and back pay owed because of an administrative error could be paid retroactively despite Article 4 Section 96.

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 AG opinions are persuasive authority but not binding precedent.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

Hinds County is one of the few Mississippi counties with two judicial districts (the First District based in Jackson and the Second District based in Raymond). The Tax Collector serves both, with full-time offices in each. Eddie Fair, the Tax Collector, had been receiving $7,000 in supplemental compensation under Miss. Code Ann. § 25-3-3(5). The Hinds County Board of Supervisors then voted to cut his pay by $3,500, taking the position that he was entitled to only $3,500. Fair asked the AG to clarify.

The AG read § 25-3-3(5) as containing two distinct mandatory supplements:

Two-judicial-district counties: "[T]he board of supervisors shall pay such assessors and tax collectors an additional Three Thousand Five Hundred Dollars ($3,500.00) per year." Mandatory.
Counties maintaining two full-time offices: "[T]he board of supervisors shall pay the assessor or tax collector an additional Three Thousand Five Hundred Dollars ($3,500.00) per year." Mandatory.

Hinds County qualifies for both. It has two judicial districts (one trigger) and the Tax Collector maintains two full-time, separately-staffed offices in each district (the second trigger). The two supplements stack: $3,500 + $3,500 = $7,000 in mandatory additional compensation.

The AG declined to invalidate the Board's prior vote (a procedural limit under § 7-5-25, which restricts AG opinions to forward-looking guidance), but the legal analysis made clear the deduction was wrong.

On retroactive payment: the AG noted that Article 4 Section 96 of the Mississippi Constitution generally bars retroactive salary increases for public employees. But back pay clearly owed by statute and not paid because of an administrative error is a different matter and is permissible. The Board could pay Fair retroactively for the months he was underpaid.

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 compensates county tax assessors and tax collectors through a base statutory scale plus various supplements that recognize particular workload and structural complexities. Section 25-3-3(5) addresses two specific complexity adders:

In addition to all other compensation paid to assessors and tax collectors in counties having two (2) judicial districts, the board of supervisors shall pay such assessors and tax collectors an additional Three Thousand Five Hundred Dollars ($3,500.00) per year. In addition to all other compensation paid to assessors or tax collectors, in counties maintaining two (2) full-time offices, the board of supervisors shall pay the assessor or tax collector an additional Three Thousand Five Hundred Dollars ($3,500.00) per year.

The word "shall" appears twice. Both supplements are mandatory, not discretionary, when the triggering conditions are met. The supplements are also independent. The first attaches to the structural fact of two judicial districts; the second attaches to the operational fact of two full-time offices. They cover different things: one recognizes the additional jurisdictional complexity, the other recognizes the cost of running two separate operational locations.

Hinds County triggers both. It has had two judicial districts since the 19th century. The First District seat is Jackson; the Second District seat is Raymond. The Tax Collector maintains a full-time, staffed office in each. Both triggers fire; both supplements apply.

The AG cited two prior opinions confirming the mandatory nature of each supplement separately:

MS AG Op., Reynolds (May 3, 2002), on the two-judicial-district supplement.
MS AG Op., Gilbert (September 10, 2008), on the two-full-time-offices supplement.

Neither opinion treated the supplements as alternative or as caps. Both treated them as mandatory and additive when both triggers fire.

The retroactive-payment piece traces a different doctrinal thread. Article 4 Section 96 of the Mississippi Constitution forbids retroactive salary increases for public employees. The constitutional concern is that elected officials should not vote themselves or other officials backdated raises. But that concern does not apply when the official was simply underpaid by mistake and the back pay is to remedy the underpayment to the legally owed amount. The AG cited three opinions (Ball 2000, Genin 1990, Cofer 1982) recognizing this distinction. The mandatory pay required by § 25-3-3(5) is statutorily fixed; underpaying it is an administrative error, and correcting the error retroactively is not a "raise."

Practically, the Hinds County Board of Supervisors had two paths: (1) restore Fair's salary going forward and pay him retroactively for the months he was underpaid, with documentation in the minutes treating the prior deduction as an administrative error; or (2) take a different legal position and risk litigation. The AG's analysis supported option 1.

Common questions

Q: Why did the AG refuse to formally invalidate the prior Board vote?
A: Section 7-5-25 limits AG opinions to forward-looking legal guidance. The AG cannot retroactively validate or invalidate completed governmental action. But the AG's analysis, by laying out the correct application of the statute, gave Fair (or any taxpayer challenging the Board) the legal basis to challenge the prior vote in court if the Board did not voluntarily correct itself.

Q: Could the Board have argued the two supplements were alternatives, not additive?
A: It was a possible reading but the AG rejected it. The statute says "shall pay" twice, with no language tying them to each other or capping the total. Each supplement attaches to a different triggering condition. A 2008 Gilbert opinion had already rejected the idea that the two-offices supplement excluded the two-districts supplement.

Q: What if the second office was not "separately staffed"?
A: Then the second supplement might not apply. The "two full-time offices" trigger requires actual operational separateness. A single office with a satellite location that has a part-time clerk likely would not qualify. Fair's situation included separately-staffed offices in each district, so the trigger was met.

Q: How far back can retroactive pay go?
A: The opinion does not impose a time limit. Practical limits would come from the prevailing statute of limitations on government wage claims. The Board could pay back to the start of the underpayment as an administrative-error correction.

Q: Does this rule apply to other county officers or just tax collectors and assessors?
A: Section 25-3-3 specifically addresses tax assessors and tax collectors. Other county officers have their own compensation statutes. The two-supplements-stack analysis depends on the specific statutory language; other officers' statutes may not have the same structure.

Citations and references

Statutes:
- Miss. Code Ann. § 25-3-3(5) (Tax assessor and collector supplemental compensation)
- Miss. Code Ann. § 7-5-25 (Limits AG opinions to forward-looking guidance)

Constitution:
- Article 4, Section 96, Mississippi Constitution of 1890 (Bars retroactive salary increases)

Prior AG opinions:
- MS AG Op., Reynolds (May 3, 2002)
- MS AG Op., Gilbert (September 10, 2008)
- MS AG Op., Ball (August 14, 2000)
- MS AG Op., Genin (February 7, 1990)
- MS AG Op., Cofer (September 28, 1982)

Source

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

ATTORNEY GENERAL
OPINIONS DIVISION

January 29, 2020

Mr. Eddie J. Fair
Hinds County Tax Collector
Post Office Box 1727
Jackson, Mississippi 39215-1727

Re: Clarification of Section 25-3-3 of the Mississippi Code Annotated

Dear Mr. Fair:

Attorney General Lynn Fitch is in receipt of your opinion request and has forwarded it to me for research and reply. In your letter, you are asking for further clarification regarding our opinion to you dated December 2, 2019, and the application of Section 25-3-3(5) of the Mississippi Code Annotated. You explain that at the last Hinds County Board of Supervisors meeting, the board voted to deduct three thousand five hundred dollars ($3,500.00) from your salary because it believes you are entitled to only three thousand five hundred dollars ($3,500.00) pursuant to Section 25-3-3(5), rather than the seven thousand dollars ($7,000.00) you had been receiving up until that point.

Our office cannot comment on the vote of the Board of Supervisors as that is past action.

Pursuant to Section 7-5-25, opinions of the Attorney General are issued on questions of law for the future guidance of those officials entitled to receive them. An Attorney General's opinion can neither validate nor invalidate past action of an officer or agency.

However, we will address your request for further clarification of our previous opinion to you and on the application of Section 25-3-3(5). Paragraph 5 of Section 25-3-3 provides:

In addition to all other compensation paid to assessors and tax collectors in counties having two (2) judicial districts, the board of supervisors shall pay such assessors and tax collectors an additional Three Thousand Five Hundred Dollars ($3,500.00) per year. In addition to all other compensation paid to assessors or tax collectors, in counties maintaining two (2) full-time offices, the board of supervisors shall pay the assessor or tax collector an additional Three Thousand Five Hundred Dollars ($3,500.00) per year.

We have consistently opined, the first sentence of Section 25-3-3(5) makes it mandatory for a tax assessor in counties having two judicial districts to be paid an additional $3,500.00. MS AG Op., Reynolds (May 3, 2002). As the Hinds County Tax Collector, elected to a county with two judicial districts, you are entitled to $3,500.00 in addition to all other compensation paid to tax collectors.

Our office also has opined, a tax collector who maintains two separately-staffed, full-time offices is entitled to additional compensation of $3,500.00 as provided in the last sentence of paragraph 5. This payment is also mandatory. See MS AG Op., Gilbert (September 10, 2008). As Tax Collector of Hinds County, you maintain two full-time, separately-staffed offices in separate locations, in each judicial district of Hinds County and are entitled to the $3,500.00 referenced in the last sentence of paragraph 5. Therefore, pursuant to Section 25-3-3(5), you are entitled to additional compensation of $7,000.00 total, in addition to all other compensation paid to tax collectors.

You further ask, if you are entitled to an additional $7,000.00 pursuant to Section 25-3-3(5), rather than $3,500.00, can you receive a retroactive payment for the additional $3,500.00 for the month(s) you failed to receive part of your statutorily required compensation. While Section 96 of the Mississippi Constitution of 1890, strictly forbids payment of retroactive salary increases to any public employee, back pay clearly owed to a public employee but not paid because of an administrative error is permissible. See MS AG Op., Ball (August 14, 2000), MS AG Op., Genin (February 7, 1990), and MS AG Op., Cofer (September 28, 1982).

In Section 25-3-3(5), the Legislature provides the "board of supervisors shall pay" the tax collector the additional amounts. (Emphasis added). The language of the statute is mandatory, not permissive. Therefore, as tax collector in a county with two judicial districts, and one who maintains two separately-staffed, full-time offices in each judicial district, you are required to be paid an additional $7,000.00 by the Board of Supervisors. The Hinds County Board of Supervisors may, upon a determination of a mistake or error, pay you additional compensation owed pursuant to statute retroactively.

If this office may be of any further assistance to you, please let us know.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: Avery Mounger Lee
Special Assistant Attorney General