Can a new Mississippi Board of Supervisors throw out the personnel handbook the previous board adopted, and can it create an assistant county administrator?

Plain-English summary

Lowndes County Supervisor Leroy Brooks asked three connected questions about a new Board of Supervisors stepping into a county that already had personnel policies and a county administrator in place. Could the new board change the personnel handbook? Did the prior board have to advertise the county administrator job in the first place? Could the new board create new positions, like an assistant county administrator, on its own initiative?

The AG answered the first and third clearly and dodged the second on jurisdictional grounds.

• Personnel handbook. The Mississippi Supreme Court and prior AG opinions had long held that a governing body cannot bind successors in the exercise of discretionary authority unless a statute expressly says so. Personnel handbooks fall on the discretionary side. So the new Board could amend or void the prior handbook. Until it does, the prior handbook stays in force.
• Advertising the county administrator job. The AG would not opine because the question concerned a past Board action and Section 7-5-25 limits the office to prospective state-law questions.
• Assistant county administrator. Section 19-4-7(a) authorizes the county administrator, with Board approval, to employ "an office clerk and such other technical and secretarial assistance for the board as may be needed." If the Board has delegated that hiring authority to the county administrator and the assistant CA role can fairly be characterized as falling inside that statutory description (a factual call), then the county administrator can hire the assistant. Outside those positions, the administrator's hiring authority depends on what the Board has delegated under Sections 19-2-9 and 19-4-7. Road department employees are an exception, governed exclusively by the road manager under Section 65-17-1.

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.

Common questions

Why can't a county Board lock in personnel policies for the next Board?

Because Mississippi treats most personnel policy as discretionary, and the rule is that a governing body cannot tie its successors' hands on discretionary matters absent express statutory authority. Biloxi Firefighters Ass'n v. City of Biloxi, 810 So. 2d 859 (Miss. 2002), is the leading case the AG cites. The follow-up cases hold that personnel handbooks themselves are voidable by a successor board.

Does the new Board have to do anything to throw out the old handbook?

Yes. The AG says the prior handbook stays in effect "unless and until the new board takes such action to make changes or to void the handbook altogether." Action means action on the minutes, not silence.

Why couldn't the AG answer whether the prior Board had to advertise the county administrator role?

Because that is a backward-looking question about completed Board action, and Section 7-5-25 limits AG opinions to prospective state-law questions. The AG cannot retroactively bless or unbless what a prior Board did.

Who can the county administrator hire on his or her own?

Beyond a few statutory positions (purchase clerk and receiving clerk under Section 31-7-101 in some cases; inventory control clerk under Section 31-7-107 in some cases), the county administrator's hiring power flows from delegation by the Board under Sections 19-2-9 and 19-4-7. Section 19-4-7(a) specifically lets the administrator employ an "office clerk and such other technical and secretarial assistance for the board as may be needed," subject to Board approval.

What about the road department?

The road manager has separate, statute-based hiring power under Section 65-17-1. The Board cannot hire road department personnel without the road manager's recommendation (MS AG Op., Colson, Feb. 16, 1994).

Background and statutory framework

Three statutory and case-law strands intersect.

Successor-board doctrine. A series of cases and AG opinions, anchored by Biloxi Firefighters Ass'n v. City of Biloxi, 810 So. 2d 859 (Miss. 2002), and refreshed by Northeast Mental Health-Mental Retardation Com'n v. Cleveland, 187 So. 3d 601 (Miss. 2016), establishes that one governing body cannot bind a successor on discretionary matters. AG opinions Mathis (Dec. 1, 2003), Beasley (May 17, 1989), Lambert (Oct. 31, 2019), and Brown (June 9, 2017) had already extended that to personnel handbooks specifically.

Statutory limits on AG opinions. Section 7-5-25 limits the office to prospective state-law questions. The AG repeatedly invokes that limit to avoid validating or invalidating past Board actions.

County administrator hiring authority. Section 19-4-7(a) authorizes the administrator to "employ an office clerk and such other technical and secretarial assistance for the board as may be needed," subject to Board approval. Section 31-7-101 deals with the purchase and receiving clerks. Section 31-7-107 deals with the inventory control clerk. Beyond those named positions, hiring authority depends on Board delegation under Sections 19-2-9 and 19-4-7. Section 65-17-1 carves out the road department, where the road manager has independent (Board-approved) hiring authority.

The opinion is signed by Special Assistant Attorney General Phil Carter on behalf of Attorney General Lynn Fitch.

Citations

• Miss. Code Ann. Section 19-4-7(a) (county administrator hiring authority)
• Miss. Code Ann. Section 19-2-9 (Board delegation)
• Miss. Code Ann. Section 19-4-7 (county administrator generally)
• Miss. Code Ann. Section 31-7-101 (purchase and receiving clerks)
• Miss. Code Ann. Section 31-7-107 (inventory control clerk)
• Miss. Code Ann. Section 65-17-1 (county road manager)
• Miss. Code Ann. Section 7-5-25 (limits on AG opinions)
• Biloxi Firefighters Ass'n v. City of Biloxi, 810 So. 2d 859 (Miss. 2002)
• Northeast Mental Health-Mental Retardation Com'n v. Cleveland, 187 So. 3d 601 (Miss. 2016)
• MS AG Op., Matthews (Mar. 21, 2011)
• MS AG Op., Barton (Jan. 8, 2014)
• MS AG Op., Jacks (Feb. 26, 2010)
• MS AG Op., Mathis (Dec. 1, 2003)
• MS AG Op., Beasley (May 17, 1989)
• MS AG Op., Lambert (Oct. 31, 2019)
• MS AG Op., Brown (June 9, 2017)
• MS AG Op., Brooks (Aug. 11, 1994)
• MS AG Op., Colson (Feb. 16, 1994)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2020/09/L.Brooks_August-31-2020-Personnel-Handbook-County-Administrator.pdf

Original opinion text

August 31, 2020

The Honorable Leroy Brooks
Lowndes County Supervisor, District Five
Post Office Box 1364
Columbus, Mississippi 39703

Re: Personnel Handbook; County Administrator

Dear Supervisor Brooks:

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

Questions Presented

1. May the current board of supervisors make changes to a personnel handbook adopted by the previous board of supervisors?

2. Must the board of supervisors advertise for the position of county administrator?

3. Can the board of supervisors create additional county positions without the recommendation of the county administrator or road manager and, if so, must the new job descriptions and qualifications be placed upon the meeting minutes before publicly advertising for the positions?

Background

Based upon a telephone conversation after we received your request, it is our understanding that the board of supervisors has appointed a county administrator. The board now intends to create the position of, and appoint, an assistant county administrator.

Brief Response

1. A personnel handbook, adopted by a previous board, shall remain in effect unless and until the present board takes official action to amend or void said handbook.

2. Pursuant to Mississippi Code Annotated Section 7-5-25, opinions of the Attorney General are limited to prospective questions of state law. An opinion can neither validate nor invalidate past action of a board of supervisors. For this reason, we cannot issue an opinion in response to your question regarding whether the board was required to advertise for the position of county administrator.

3. Pursuant to Section 19-4-7(a), if the board of supervisors delegates to the county administrator authority to employ an office clerk and other technical and secretarial assistance for the board and it is determined, consistent with the facts, that the employment of an assistant county administrator constitutes the employment of an "office clerk" or "other technical and secretarial assistance for the board," the county administrator would be empowered to hire an assistant county administrator.

Applicable Law and Discussion

With respect to your first question, the Mississippi Supreme Court, as well as official opinions of this office, have long held that governing authorities may not bind successors in office in the exercise of their discretionary authority, unless there is "express statutory authority" to do so. MS AG Op., Matthews at 1 (Mar. 21, 2011) (citing Biloxi Firefighters Assoc. v. City of Biloxi, 810 So. 2d 859 (Miss. 2002); MS AG Op., Barton at 1 (Jan. 8, 2014); MS AG Op., Jacks at 2 (Feb. 26, 2010). County personnel policies or personnel procedures, or the implementation of a county-wide system of personnel administration is not binding upon a successor board. MS AG Op., Mathis at 1 (Dec. 1, 2003); MS AG Op., Beasley at *1 (May 17, 1989).

A personnel handbook, duly adopted by a previous board, is voidable at the discretion of the successor board. Thus, the personnel handbook shall remain in effect unless and until the new board takes such action to make changes or to void the handbook altogether. See MS AG Op., Lambert at 1 (Oct. 31, 2019); MS AG Op., Brown at 1 (June 9, 2017); see also Northeast Mental Health-Mental Retardation Com'n v. Cleveland, 187 So. 3d 601 (Miss. 2016).

As stated above, we cannot respond to your second question by official opinion as it now pertains to past action of the Board.

In response to your third question, Mississippi Code Annotated Section 19-4-7(a) expressly empowers the county administrator, subject to board approval, to employ an office clerk and such other technical and secretarial assistance for the board as may be needed. Section 31-7-101 empowers the county administrator to appoint, under certain circumstances, the county purchase clerk and the county receiving clerk, subject to board approval. Section 31-7-107 empowers the county administrator to appoint the county inventory control clerk in certain cases.

Beyond these positions, the county administrator's authority to employ personnel depends primarily upon what has been delegated by the board of supervisors pursuant to Sections 19-2-9 and 19-4-7. The employees of the county road department, however, are an exception to this rule. Those employees fall under direct jurisdiction of the county road manager.

Mississippi Code Annotated Section 65-17-1 states, in pertinent part:

The county road manager shall employ, subject to approval of the board of supervisors, such assistants and employees as may be necessary in conformity with the budget and county policies and procedure with respect to personnel and subject to approval of the board as to salary or other compensation to be paid. He shall have supervision and jurisdiction over personnel and assignments of personnel engaged in the work of the road department.

Miss. Code Ann. § 65-17-1; see also MS AG Op., Brooks at 1 (Aug. 11, 1994); MS AG Op., Colson at 1 (Feb. 16, 1994) (opining that the county board of supervisors may not employ an assistant road manager without the individual having been recommended to the position by the county road manager).

Based upon these statutes and previous opinions of this office, it is our opinion that an assistant county administrator may be employed by the county administrator pursuant to Section 19-4-7(a), if that authority has been delegated to the county administrator by the board of supervisors and if the employment of an assistant county administrator is found to constitute the employment of an "office clerk" or "other technical and secretarial assistance for the board."

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/ Phil Carter
Phil Carter
Special Assistant Attorney General