MS 2020-08-W-Bailey-July-31-2020-Reconsideration-of-May-13-2020-Opinion-to-Supervisor-Delri 2020-07-31

Can a Mississippi county pay an attorney to represent the tax assessor in defending an election contest?

Short answer: It depends on the board's factual finding. The AG reaffirmed that the Humphreys County Board of Supervisors may pay legal fees for the tax assessor/collector in an election contest only if the board determines on its minutes that the county has an interest in the litigation. Without that finding, the board cannot pay.

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 AG opinions are persuasive authority but not binding precedent.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

This opinion is a reconsideration of an earlier opinion the AG issued to Humphreys County Supervisor Delrick Henderson on May 13, 2020. The original question was whether the Humphreys County Board of Supervisors could hire an attorney, paid from county funds, to represent the current Tax Assessor/Collector in defending an election contest appeal.

Representative Willie L. Bailey asked for reconsideration with a new set of facts:
- A specially appointed Circuit Court Judge had already declared the November 2019 election null and void
- The Humphreys County Board had appointed the declared winner of the November 2019 election as Interim Tax Assessor/Collector
- A special election had been ordered for August 3, 2020
- The Tax Assessor/Collector had retained her own independent counsel; the Board had not hired counsel for her
- The Board considered itself to have no interest in the election contest because a special election had already been ordered

The AG reaffirmed the Henderson opinion. The legal rule does not change with the new facts: under Miss. Code Ann. § 19-3-47(1)(b), the Board has discretion to pay the legal fees of independent counsel representing the tax assessor/collector if the Board determines, consistent with the facts, that the county has an interest in the litigation, and spreads that determination on its minutes.

What the new facts illustrate is the flip side. If the Board has already made the factual determination, on the record, that the county has no interest in the election contest or in avoiding a special election, then the Board cannot pay the legal fees. The county's interest in the litigation is a prerequisite under § 19-3-47(1)(b); without it, paying for private counsel would be an unauthorized use of public funds.

The opinion also makes a procedural point that has broader application: the AG's office cannot interpret court orders and cannot make factual findings or assume facts. The Board has to do that work itself.

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

Miss. Code Ann. § 19-3-47(1)(b) gives a board of supervisors discretion to pay legal fees and expenses of legal counsel representing a county officer in litigation where the county has an interest. The provision is a recurring tool for counties whose officers face suit in their official capacity, but its discretionary nature means the board has to make a real factual determination, not just a rubber-stamp finding.

The AG's pattern of opinions on this point is consistent. Henderson (May 13, 2020) is the immediate prior step. Snell (Jan. 28, 2016), Phillips (Jan. 30, 2008), Ferguson (Feb. 5, 1996), and Ellis (July 14, 1993) all stand for the rule that a county may pay legal expenses of an elected officer in an election contest if the board makes a finding on the minutes that the county has an interest, often phrased as the county's interest in avoiding a special election or in resolving uncertainty about who holds office.

The reconsideration introduces a wrinkle: what happens when the board affirmatively finds it has no interest? The AG's answer is that the board has now removed the precondition for paying. It cannot then turn around and pay anyway.

The opinion also sets boundaries on what an AG opinion can do. Two reminders worth noting:
- The AG cannot interpret the terms of a court order. If the board needs to know what a court order means, the path is back to court for clarification, not to the AG.
- The AG relies on the facts as set forth in the request and cannot make factual determinations itself. So an AG opinion cannot substitute for a board's own factual finding under § 19-3-47(1)(b).

Common questions

Q: Does this opinion change the rule from the May 2020 Henderson opinion?
A: No. The AG reaffirmed Henderson. The rule is the same: the Board has discretion to pay if it finds a county interest on its minutes, and may not pay if it does not.

Q: What counts as a "county interest"?
A: Past AG opinions have recognized the county's interest in avoiding a special election and the county's interest in resolving uncertainty about who lawfully holds an elected office. Both are fact-specific. The Board has to make the factual call.

Q: If the special election has already been ordered, can the county still claim an interest?
A: That is exactly what the new facts in this reconsideration tested. The Board had concluded it had no interest because the special election was already ordered. Once that determination is on the minutes, § 19-3-47(1)(b) does not authorize the payment.

Q: Can the Board reverse a "no interest" finding later?
A: The opinion does not address that. As a practical matter, a board can revisit a prior determination if facts change, but it has to do so explicitly on the minutes and not as cover for paying claims it had already declared the county uninterested in.

Q: Does the officer have any other path to having her legal fees paid?
A: This opinion only addresses § 19-3-47(1)(b). Other statutory schemes (insurance pools, indemnification under specific statutes, fee-shifting in particular causes of action) might apply. The opinion does not foreclose them.

What this means for you

For boards of supervisors: When a county officer asks the Board to pay legal fees in an election contest or other personal litigation, the controlling question is whether the county has an interest, and the controlling document is the Board's minutes. Make the factual finding deliberately and document it. A retroactive or vague finding invites challenge.

For elected officers facing election contests: Do not assume the county will pay. The Board has discretion under § 19-3-47(1)(b), and it has to find a county interest. If your case has already been mooted by a special election order, the Board's interest argument is weaker.

For county attorneys: When advising on a § 19-3-47(1)(b) request, tie the recommendation to specific factual circumstances that show a county interest, the cost of a special election, the disruption of office turnover, the validity of pending official actions. Stay away from boilerplate.

For watchdogs and journalists: The minutes are where to look. If the Board paid an officer's fees, there should be a documented county-interest finding. If the finding is missing or conclusory, that is a public-records angle worth pursuing.

Citations and references

Statutes:
- Miss. Code Ann. § 19-3-47(1)(b) (board discretion to pay legal counsel for county officers)

Prior AG opinions referenced:
- MS AG Op., Henderson (May 13, 2020)
- MS AG Op., Snell (January 28, 2016)
- MS AG Op., Phillips (January 30, 2008)
- MS AG Op., Ferguson (February 5, 1996)
- MS AG Op., Ellis (July 14, 1993)

Source

Original opinion text

July 31, 2020

Hon. Willie L. Bailey
Bailey & Griffin, P. A.
1001 Main Street
Greenville, Mississippi 38702-0189

Re: Reconsideration of May 13, 2020 Opinion to Supervisor Delrick Henderson Providing Counsel to Winning Candidate in an Election Contest

Dear Representative Bailey:

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

Question Presented

May the Humphreys County 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

In response to a written opinion request, this office issued an official opinion to Humphreys County Supervisor Delrick Henderson dated May 13, 2020. The question presented by the initial request asked whether the Humphreys County Board of Supervisors could hire an attorney, to be paid from county funds, to represent the current Tax Assessor/Collector in an appeal of an election contest challenging her recent election.

The facts as set forth in the initial request and recited by the May 13, 2020 opinion to Mr. Henderson indicated that that current Tax Assessor/Collector had requested the Humphreys County Board of Supervisors to pay for independent counsel retained by her to represent her in the appeal of an election contest which challenged her election in Nov. 2019.

In your request for reconsideration of the May 13, 2020 opinion issued to Mr. Henderson, you have provided the following additional facts:

At the time of the initial request for an opinion, a specially appointed Circuit Court Judge had already declared the Nov. 2019 election of the Humphreys County Tax Assessor/Collector as null and void. In response, the Humphreys County Board of Supervisors appointed the declared winner of the Nov. 2019 election as an Interim Tax Assessor/Collector until the special election is held on Aug. 3, 2020.
The Tax Assessor/Collector retained her own independent counsel to represent her in the election contest at the lower court level and on appeal. The Humphreys County Board of Supervisors did not hire counsel for the Tax Assessor/Collector.
The Humphreys County Board of Supervisors has no interest in the election contest of the Tax Assessor/Collector, as a special election has already been ordered by the Circuit Court to be held on August 3, 2020.

Brief Response

By virtue of the authority granted to the Office of the Attorney General, this office cannot opine upon the terms and provisions of a court order.

Furthermore, this office relies upon the facts as set forth by the specific written request seeking an official opinion and cannot assume facts or make any factual determinations upon which to base an official opinion or provide guidance to the requesting party.

Considering the additional facts as provided by this request, we provide the same opinion as that in MS AG Op., Henderson (May 13, 2020), which is predicated upon several previously issued opinions of this office. See, MS AG Ops., Snell (January 28, 2016); Phillips (January 30, 2008); Ferguson (February 5, 1996); Ellis (July 14, 1993).

The Humphreys County Board of Supervisors may hire and pay for with county funds independent counsel retained 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. MS AG Op., Henderson (May 13, 2020) (emphasis added).

Applicable Law and Discussion

As stated in the Henderson opinion, the Humphreys County Board of Supervisors has the discretion to pay the legal fees and expenses of legal counsel representing the tax assessor/collector in defense against an election contest pursuant to Miss. Code Ann. Section 19-3-47(1)(b).

Conversely, however, the Humphreys County Board of Supervisors has the discretion to not pay the legal fees and expenses of legal counsel representing the tax assessor/collector in defense against an election contest pursuant to Section 19-3-47(1)(b).

The county is authorized to pay the legal fees and expenses of independent counsel representing the tax assessor/collector in defense against an election contest if the board of supervisors makes a determination, consistent with the facts, that the county has an interest in the litigation. See, MS AG Op., Snell (January 28, 2016); MS AG Op., Ferguson (February 5, 1996); MS AG Op., Ellis (July 14, 1993) (the county has an interest in avoiding a special election).

We, therefore, confirm our opinion as set forth in MS AG Op., Henderson (May 13, 2020), but emphasize that it is within the discretion of the Humphreys County Board of Supervisors to pay the legal fees and expenses of counsel representing the current tax assessor/collector in defense against the appeal of the challenge against her Nov. 2019 election. However, if the Board has made the factual determination, spread across the minutes, that the county has no interest in the tax assessor/collector's election contest or in the avoidance of a special election, as you state within your request, then the Board of Supervisors may not pay those legal costs as the county's stated interest in the litigation is a prerequisite to the payment of such legal costs pursuant to Section 19-3-47(1)(b).

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/ Kim P. Turner
Kim P. Turner
Assistant Attorney General