Can a Mississippi county pay an elected official 'leave with pay' under House Bill 1647, and when must constables be paid for state cases the prosecution loses?

Plain-English summary

Adams County's board attorney asked the AG three questions about House Bill 1647, the 2020 Mississippi law that let counties, cities, and school districts grant "administrative leave with pay" to employees during emergencies declared by the Governor (the immediate concern was the COVID-19 disaster declaration). He also asked a pay-timing question about constables.

The AG drew a clean line between employees and elected officials. Elected county officers, like chancery clerks, circuit clerks, and constables, were not "employees" of the county, so they were not eligible for administrative leave under HB 1647. The AG relied on a longstanding doctrine that elected officials are presumed available for official duties at all times and are not subject to county leave policies.

For the constable fee question, the AG read the language of § 25-7-27 strictly. The constable's annual fee for serving warrants and attending trials in cases the State lost ("state-fail" cases) could only be paid out of the county treasury after the year was complete, and only if the constable had not overcharged for fees during the year.

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.

What the opinion said for each audience, at the time

For Mississippi counties, cities, and school districts in 2020

HB 1647 let the governing authority grant administrative leave with pay to its employees during a Governor-declared emergency. The opinion held that the leave authority covered only county, municipal, and district employees, not elected officials, because elected officials are "presumed to be available for official duties at all times" and so are not covered by county leave policies in the first place.

For elected officials wondering about pandemic-era pay

The opinion held that elected officials are not eligible for HB 1647 administrative leave at all. The AG cited prior opinions (Ready 2001, Ranck 1996, Phillips 2006) saying elected officials are "presumed to be available for official duties at all times" and so are not covered by county leave policies. The opinion did not address how elected officials' salaries are otherwise set.

For constables billing for state-fail cases in 2020

The opinion was firm on timing. A constable could not collect the annual fee on a partial-year basis. The fee under § 25-7-27 was a year-end accounting, paid only if the constable both performed all required duties (serving warrants, attending trials) and had not overcharged for fees during the year. Boards of supervisors had no discretion to pay early.

For boards of supervisors processing constable claims

If the constable met both conditions, the board had no discretion to deny the fee. But the timing was non-negotiable: end of year only.

Common questions

Q: Why did the AG say elected officials are not "employees"?
A: Mississippi AG opinions going back decades had concluded that elected officials, who hold office under the constitution and statutes rather than a county personnel handbook, are not subject to county leave policies. They are "presumed to be available for official duties at all times" because their duty arises from their oath of office, not from a work schedule.

Q: What was a "state-fail" case?
A: When a constable served warrants and attended trials in state criminal cases where "the State fails in the prosecution," meaning the prosecution did not result in a conviction, § 25-7-27 entitled the constable to an annual fee paid out of the county treasury. The fee compensated the constable for duties performed in cases that did not produce conviction-based fees.

Q: Could a constable be denied the state-fail fee even if he did the work?
A: Yes, if the constable had overcharged elsewhere. The statute conditioned payment on the constable not having "overcharged in the collection of fees for costs, contrary to the provisions of this section, annually." If the audit found overcharges, the entire annual state-fail fee could be denied.

Q: Why were elected officials excluded from emergency leave?
A: HB 1647 grants administrative leave to "employees" of the governing entity. The AG, relying on prior opinions, read elected officials out of that group because they are "presumed to be available for official duties at all times" and are not subject to county leave policies. The opinion did not analyze elected officials' salaries beyond that point.

Q: Did this affect what counties could pay during emergencies generally?
A: The opinion was about HB 1647 specifically and held only that the bill's administrative-leave tool reaches employees, not elected officials. It did not address other authorities a county might have to compensate anyone during an emergency.

Background and statutory framework

HB 1647, enacted in the 2020 Regular Session, lets the board of supervisors of any county, the governing authority of any municipality, and the local school board grant administrative leave with pay, from and after March 14, 2020, to the employees of those entities during an emergency declared by the Governor (which included the COVID-19 disaster declaration).

Section 25-7-27 sets fee schedules for marshals and constables. Subsection (1)(f) sets the fee for serving warrants and attending trials in state cases in which the state fails in the prosecution, paid out of the county treasury on the board's allowance, subject to the condition that the constable not have overcharged in the collection of fees for costs during the year.

On the elected-official question, the AG relied on prior opinions holding that elected officials, "presumed to be available for official duties at all times," are not covered by county leave policies. Because HB 1647 grants leave to "employees," the AG read it not to reach elected officials.

Citations and references

Statutes:

• House Bill 1647, 2020 Regular Session (administrative leave during Governor-declared emergencies, effective March 14, 2020)
• Miss. Code Ann. § 19-3-63, county supervisor authority over leave policies
• Miss. Code Ann. § 25-11-103(i), additional leave-policy authority
• Miss. Code Ann. § 25-7-27(1)(f), annual state-fail fee for marshals and constables

Prior AG opinions cited:

• MS AG Op., Ready (Feb. 16, 2001), elected officials not covered by county leave policies
• MS AG Op., Ranck (Feb. 8, 1996), same
• MS AG Op., Phillips (Feb. 10, 2006), same
• MS AG Op., Enlow (Feb. 4, 2005), conditions for collecting the state-fail fee

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2020/11/S.Slover_November-10-2020-House-Bill-1647-and-Constable-Compensation-in-State-Fail-Cases.pdf

Original opinion text

November 10, 2020

Scott F. Slover, Esquire
Attorney for Adams County Board of Supervisors
314 State Street
Natchez, Mississippi 39120

Re: House Bill 1647 and Constable Compensation in State Fail Cases

Dear Mr. Slover:

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

Questions Presented

1. Does the term "employee" in House Bill 1647 (2020 Regular Session) include elected officials such as chancery clerks, circuit clerks and constables?
2. What is the meaning of "leave with pay" as used within House Bill 1647 (2020 Regular Session)?
3. May a constable's annual compensation for his services provided in state cases in which the state fails in the prosecution be paid at any time during the year or only after the year is completed?

Brief Response

With respect to your first question, no. House Bill 1647 does not contemplate the inclusion of elected officials, who are not subject to county leave policies or those separate leave policies adopted by such officials for their own respective employees.

With respect to your second question, "leave with pay," as used within House Bill 1647 (2020 Regular Session), and as applicable to the Adams County Board of Supervisors, refers to "administrative leave," and means that county employees who are subject to the county's leave policies may be granted such leave by the board of supervisors, while receiving the compensation to which employees are entitled when they are on regular leave as provided in the respective county's leave policies, formally adopted by the board of supervisors pursuant to Mississippi Code Annotated Section 19-3-63 and 25-11-103(i).

Turning to your third question, the statutory fee to which constables are entitled for their services provided in state cases in which the state fails in the prosecution cannot be paid until the year is completed.

Applicable Law and Discussion

House Bill 1647 provides, in relevant part, as follows:

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.

With respect to your first question, we have previously opined that, elected officials, presumed to be available for official duties at all times, are not covered by county leave policies or separate leave policies established for their respective employees. MS AG Op., Ready at 1 (Feb. 16, 2001); MS AG Op., Ranck at 1 (Feb. 8, 1996); see also MS AG Op., Phillips at *1 (Feb. 10, 2006). It is, therefore, the opinion of this office that elected officials are not included among those employees who may be granted administrative leave by the governing authorities of a county, municipality, or school district pursuant to House Bill 1647.

With respect to your second question, "leave with pay," as used within House Bill 1647 (2020 Regular Session), and as applicable to the Adams County Board of Supervisors, refers to "administrative leave," and means that county employees who are subject to the county's leave policies may be granted such leave by the board of supervisors, while receiving the compensation to which employees are entitled when they are on regular leave as provided in the respective county's leave policies, formally adopted by the board of supervisors pursuant to Mississippi Code Annotated Sections 19-3-63 and 25-11-103(i).

Turning to your third question, regarding cases in which the state fails in its prosecution, or "state fail" cases, Mississippi Code Annotated Section 25-7-27 provides, in relevant part:

(1) Marshals and constables shall charge the following fees:
...
(f) For serving all warrants and other process and attending all trials in state cases in which the state fails in the prosecution, to be paid out of the county treasury on the allowance of the board of supervisors without itemization, subject, however, to the condition that the marshal or constable must not have overcharged in the collection of fees for costs, contrary to the provisions of this section, annually.

Miss. Code Ann. § 25-7-27 (emphasis added).

This office has previously addressed a constable's job requirements in relation to collecting the fee set forth in Section 25-7-27:

[I]n order to collect the fee the constable must serve or diligently attempt to serve all warrants and other process presented to him for service in state cases in which the state fails in the prosecution. He must attend all trials in state cases in which the state fails in the prosecution, unless lawfully excused or otherwise unavailable for a legitimate reason. Finally, he must not have overcharged in the collection of fees for costs, contrary to the provisions of Section 25-7-27.

MS AG Op., Enlow at *1 (Feb. 4, 2005). A constable is ineligible to collect the annual statutory fee in its entirety if he fails to comply with any of the provisions set forth by Section 25-7-27(f). Id. Conversely, if the constable performs all duties set forth above, the board of supervisors has no discretion and must pay the full fee. Id.

Accordingly, it is the opinion of this office that the fee for "state-fail" cases may only be paid to a constable on an annual basis and only if he/she has fully satisfied the provisions of Section 25-7-27.

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