MS 2020-10-R-Allen-September-29-2020-Authority-to-grant-county-employees-administrative-lea September 29, 2020

Can a Mississippi county tax assessor send employees home with pay during COVID without the Board of Supervisors' approval?

Short answer: The AG concluded that under Executive Order 1460 and H.B. 1647 (2020), only county boards of supervisors, municipal governing authorities, and local school boards could grant administrative leave with pay. A county elected official without a separately filed Section 19-3-63(2) policy could not unilaterally place his employees on paid leave.

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 AG opinions are persuasive authority but not binding precedent.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

The Lincoln County Tax Assessor/Collector, faced with COVID-19, sent some employees home on administrative leave. The Lincoln County Board of Supervisors had previously adopted a resolution stating it would not grant administrative leave with pay under Executive Order 1460. The Tax Assessor/Collector had not adopted a separate personnel policy under Section 19-3-63(2) for his employees; they were governed by the Board's policy. When the employees came due for pay for the days they were sent home, the Board refused. Whose call was it?

The AG (declining to validate or invalidate the Tax Assessor/Collector's past action) gave a prospective answer. The authority to grant administrative leave with pay under Executive Order 1460 (issued March 19, 2020 and rescinded as to certain provisions on June 10, 2020 by Executive Order 1495) and under House Bill 1647 (signed March 19, 2020) was vested specifically in three sets of governing authorities: county boards of supervisors, municipal governing authorities, and local school boards. No statute or executive order granted that authority to a county elected official as such.

Section 19-3-63 lays the broader framework. Subsection (1) lets the Board of Supervisors set leave policy for county employees by resolution. Subsection (2) lets each county elected official (other than a member of the Board of Supervisors) who is "authorized by law to employ" file a written leave policy with the chancery clerk that may differ from the Board's policy. If the elected official does not file a separate policy, Board policy applies to that official's employees.

Because the Tax Assessor/Collector had not filed a separate policy, his employees were governed by Board policy and could enjoy leave only if the Board granted it (under Section 19-3-63 itself, under Section 25-11-103(1)(i), or under H.B. 1647 / Executive Order 1460). Without Board authorization, the employees were not entitled to be paid.

The opinion modifies or withdraws older AG opinions (Beasley, May 17, 1989; Haywood, May 1, 2012; Cruz, Sept. 21, 1989) to the extent they had said county elected officials could not enact their own leave policies. The 2020 opinion says they can, by filing under Section 19-3-63(2).

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

Who was authorized to grant administrative leave with pay during COVID?

Three governing authorities: county boards of supervisors, municipal governing authorities, and local school boards. The authority came from H.B. 1647 (Reg. Sess. Miss. 2020) and was implemented in Executive Order 1460. A county elected official as such was not on the list.

Can a county elected official set up his own leave policy?

Yes. Section 19-3-63(2) lets a county elected official "other than a member of the board of supervisors, who is authorized by law to employ" file a separate written leave policy with the chancery clerk. That policy may differ from the Board's policy.

What if the official has not filed a separate policy?

The Board's policy governs the official's employees. Section 19-3-63(2) is explicit: "If such elected official fails to adopt and file such a policy with the clerk of the board of supervisors, the policy adopted by the board of supervisors for sick leave and vacation time for county employees shall apply to employees of such elected official."

What about Executive Order 1495?

On June 10, 2020, Governor Reeves issued Executive Order 1495 rescinding the relevant provisions of Executive Order 1460. The H.B. 1647 statutory authority survived; the executive-order overlay did not.

Why didn't the AG just say the past action was wrong?

Because Section 7-5-25 limits the office to prospective state-law guidance. The AG declined to grade the Tax Assessor/Collector's past decision and instead answered the prospective question (whether the Board had to pay the employees going forward).

Background and statutory framework

Executive Order 1460 (March 19, 2020) authorized boards of supervisors, municipal governing authorities, and local school boards to grant administrative leave with pay for COVID-19-related reasons (employer closures, non-essential duties, employee/household quarantine, other measures necessary to prevent COVID transmission in the workplace). Executive Order 1495 (June 10, 2020) rescinded those provisions.

H.B. 1647, Reg. Sess. (Miss. 2020), signed March 19, 2020, gave the same three groups of governing authorities the authority to grant administrative leave with pay during a Governor-declared emergency.

Section 19-3-63 governs county leave policy:

Subsection (1): Board of Supervisors may establish sick leave and vacation policy by resolution.
Subsection (2): Each county elected official (other than a member of the Board) authorized by law to employ may file a separate written policy with the chancery clerk; if not filed, Board policy applies.
Subsection (3): The Board and each elected official authorized to employ must enact leave policies that ensure public-safety employees are paid or granted compensatory time for the same number of holidays as other county employees.

Section 25-11-103(1)(i) recognizes the governing authority of a political subdivision's power to adopt leave policies.

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

Citations

Miss. Code Ann. Section 19-3-63 (county leave policies)
Miss. Code Ann. Section 19-3-63(2) (elected official's separate leave policy)
Miss. Code Ann. Section 25-11-103(1)(i) (political subdivision leave authority)
Miss. Code Ann. Section 7-5-25 (limits on AG opinions)
H.B. 1647, Reg. Sess. (Miss. 2020)
Exec. Order No. 1460 (Miss. 2020)
Exec. Order No. 1495 (Miss. 2020)
MS AG Op., Prescott at *1 (Jan. 10, 1997)
MS AG Op., Beasley at *1 (May 17, 1989) (modified or withdrawn)
MS AG Op., Haywood at *4 (May 1, 2012) (modified or withdrawn)
MS AG Op., Cruz at *2 (Sept. 21, 1989) (modified or withdrawn)

Source

Original opinion text

September 29, 2020

Robert O. Allen, Esq.
Board Attorney, Lincoln County Board of Supervisors
Post Office Box 751
Brookhaven, Mississippi 39602

Re: Authority to grant county employees administrative leave with pay

Dear Mr. Allen:

The Office of the Attorney General has received your request for an official opinion.

Background Facts

Executive Order 1460, issued by Governor Reeves, authorizes county boards of supervisors, municipal governing authorities, and local school districts to grant administrative leave with pay for certain specified reasons. You state that the Lincoln County Board of Supervisors (the "Board") adopted a resolution stating that it will not grant such leave.

Notwithstanding that resolution, the Lincoln County Tax Assessor/Collector (the "Tax Assessor/Collector") sent some of his employees home on administrative leave, and the Board has refused to pay those employees for days they were not at work.

In a telephone call following the submission of your request, you stated that the Tax Assessor/Collector has not adopted a separate system of personnel administration applicable to his employees. Rather, his employees are governed by the policies enacted by the Board.

Question Presented

Who has authority to grant administrative leave with pay pursuant to Executive Order 1460, so the Board will know whether to pay the employees in question.

Brief Response

Executive Order 1460 authorizes only a county board of supervisors, the governing authority of any municipality and the local school board of any public school district to grant their employees administrative leave with pay under certain circumstances. Additionally, Mississippi Code Annotated Section 19-3-63(2) authorizes county elected officials, other than a county supervisor, to adopt their own leave policies applicable to their employees and file such written policies with the board of supervisors. However, because the Tax Assessor/Collector had not filed a separate leave policy with the Board, his employees may only enjoy leave as lawfully granted by the Board.

Applicable Law and Discussion

Pursuant to Section 7-5-25 of the Mississippi Code, the Attorney General may not issue official opinions on the past actions of public officials. Therefore, we must respectfully decline to address the action taken by the Tax Assessor/Collector.

We may, however, address the prospective issue of whether the Board should pay the employees in question. Executive Order 1460, issued by the Governor on March 19, 2020, provides, in pertinent part:

That due to the State of Emergency and pursuant to Mississippi House Bill No. 1647, the board of supervisors of any county, the governing authority of any municipality and the local school board of any public school district may grant their employees administrative leave with pay for any one or more of the following reasons as determined by the governing authority of such county, municipality or school:

a. The period(s) of time that the employee's employer has closed in response to COVID-19,
b. The period(s) of time that the employee's supervisor has determined the employee's duties are deemed non-essential during any period of time during the State of Emergency,
c. The period(s) of time that the employee or a member of their immediate household is placed in quarantine or isolation as a result of being diagnosed with COVID-19,
d. Other reasons as determined by the governing authority in consultation with a health care professional that are necessary to prevent the risk of possible transmission of COVID-19 within the employee's workplace.

Exec. Order No. 1460 (Miss. 2020). By Executive Order 1495, issued on June 10, 2020, the Governor rescinded the above-quoted provisions of Executive Order 1460.

Cited in Executive Order 1460, House Bill 1647 was signed into law by the Governor on March 19, 2020, and authorizes a county board of supervisors, the governing authority of any municipality and the local school board of any public school district to grant their employees administrative leave with pay. That legislation provides:

From and after March 14, 2020, the board of supervisors of any county, the governing authority of any municipality and the local school board of any public school district may grant administrative leave with pay during the affected period within the affected county, municipality or school district to the employees of such governmental entities on a local or statewide basis in the event of extreme weather conditions or in the event of a man-made, technological or natural disaster or emergency, if such event has resulted in an emergency declaration by the Governor. Any employee on a previously approved leave during the affected period shall be eligible for such administrative leave granted by the governing authority, and shall not be charged for his or her previously approved leave during the affected period.

H.B. 1647, Reg. Sess. (Miss. 2020).

As a plain reading of both authorities demonstrates, Executive Order 1460 and House Bill 1647 authorize only three groups of individuals to grant administrative leave with pay: (1) a county board of supervisors; (2) the governing authorities of a municipality; and (3) the local school board of any school district. Id.; Exec. Order No. 1460 (Miss. 2020).

However, Mississippi Code Annotated Section 19-3-63 authorizes both a county board of supervisors and county elected officials, other than a member of the board of supervisors, to enact leave policies for their respective employees:

(1) The board of supervisors of each county by resolution adopted and placed on its minutes may establish a policy of sick leave and vacation time for employees of the county not inconsistent with the state laws regarding office hours and holidays.

(2) Notwithstanding the provisions of subsection (1) of this section, each elected official of the county, other than a member of the board of supervisors, who is authorized by law to employ, may, by written policy filed with the clerk of the board of supervisors, establish a policy of sick leave and vacation time for his employees which may be inconsistent with the policy established by the board of supervisors but which shall not be inconsistent with the state laws regarding office hours and holidays. If such elected official fails to adopt and file such a policy with the clerk of the board of supervisors, the policy adopted by the board of supervisors for sick leave and vacation time for county employees shall apply to employees of such elected official.

(3) The board of supervisors of any county and each elected official of the county who is authorized by law to employ shall enact leave policies to ensure that a public safety employee is paid or granted compensatory time for the same number of holidays for which any other county employee is paid.

Miss. Code Ann. § 19-3-63 (emphasis added); see also Miss. Code Ann. § 25-11-103(1)(i) (citing governing authority of a political subdivision's power to adopt leave policies). Accordingly, if the Tax Assessor/Collector had formulated a "written policy filed with the clerk of the board of supervisors, [which] establish[ed] a policy of sick leave and vacation time for his employees," the Tax Assessor/Collector's employees would be entitled to administrative leave with pay in accordance with such policy. See MS AG Op., Prescott at *1 (Jan. 10, 1997). In the absence of such a separate policy by the Tax Assessor/Collector, his employees may enjoy leave only as properly authorized by the Board, either set forth in a policy adopted pursuant to Sections 19-3-63 or 25-11-103(1)(i), or granted pursuant to Executive Order 1460 or House Bill 1647.

Because the Tax Assessor/Collector had not filed a separate leave policy with the Board, only the Board is authorized to grant leave to the Tax Assessor/Collector's employees.

Prior opinions issued by this office suggesting county elected officials, other than county supervisors, lack authority to enact leave policies applicable to their employees are hereby withdrawn or modified to conform to this opinion. See e.g., MS AG Op., Beasley, at 1 (May 17, 1989); MS AG Op., Haywood at 4 (May 1, 2012); MS AG Op., Cruz at *2 (Sept. 21, 1989).

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