Does a Mississippi county have to pay constables the $2,500 "state fail fee," and how does the board of supervisors decide whether each constable earned it?

Plain-English summary

In Mississippi, a constable can earn an annual $2,500 "state fail fee" under Section 25-7-27(1)(f). The fee is for serving warrants and other process, and attending trials, in state cases where the state fails in the prosecution. The fee is paid out of the county treasury "on the allowance of the board of supervisors."

The Copiah County Board of Supervisors had decided that its constables had not earned the fee for some past period. A PERS (Public Employees' Retirement System) employee took the position that the fee should have been reported to PERS as compensation, and that the Board needed to pay both the employer and employee retirement contributions and the fee itself.

The Board's attorney asked the AG three questions about the Board's responsibilities. The AG's responses:

On entitlement: The first question was too broad to answer directly. But for guidance, the AG laid out the test: a constable earns the fee only if they (1) served, or diligently attempted to serve, all warrants and process in state-fail cases, and (2) attended all trials in state-fail cases unless lawfully excused, and (3) did not overcharge for other fees. If they did all that, the Board has no discretion and must pay. If they did not, the Board does not pay. A constable is ineligible for the entire annual fee if any one of the requirements is unmet.

On timing of the eligibility finding: There is no statutory requirement that the Board make an annual finding that constables are NOT entitled. If the constables did not request payment, the Board has no occasion to consider eligibility. But if the Board does pay, it should make an affirmative finding on the minutes that the constable performed the required duties. The fee, if earned, is paid annually, but there is no requirement to pay before the calendar year ends.

On the third question: Also too broad to answer directly, but the same guidance applies: before paying, the Board makes an affirmative on-the-record finding of eligibility.

A footnote was significant for the PERS dispute: if a constable affirmatively requests the fee and the Board denies it, the denial and the reasoning must be recorded in the minutes. Public boards speak only through their minutes (KPMG v. Singing River). So the Board's silence in past minutes did not by itself mean the fee was earned and unpaid.

What this means for you

For Mississippi boards of supervisors

You decide whether to pay constables the state-fail fee, but the decision is constrained by the statute:

• Pay only if the constable performed the listed duties.
• Make an affirmative finding on the minutes documenting that the constable performed those duties before paying.
• If a constable requests the fee and you deny it, document the denial and the reasoning on the minutes.
• If no request is made, no separate finding of non-entitlement is required.

The fee is $2,500 annually. Earned in full or not at all, no partial credit. So if a constable diligently served process all year but missed one trial without legitimate excuse, the entire fee is forfeit.

For constables

To earn the state-fail fee, you must:

1. Serve, or diligently attempt to serve, all warrants and process presented to you in state cases that end in failure of prosecution.
2. Attend all trials in those cases (unless you have a lawful excuse or other legitimate reason for being unavailable).
3. Not overcharge in collecting fees for other costs.

The fee is paid "on the allowance of the board of supervisors." The opinion notes that if constables did not request to be paid, the Board "would have had no occasion to evaluate whether to pay the fee," and there is no requirement that the Board make a finding of non-entitlement in that situation.

For county attorneys advising boards

Under the opinion, before paying the fee the Board "should make an affirmative finding, consistent with the facts, that such constable performed his or her required duties and is entitled to the fee." If a constable submits a claim and the Board disputes and denies it, footnote 2 says "such denial, and the reasoning therefore, should be recorded in the minutes," citing the rule that "public boards speak only through their minutes" (KPMG v. Singing River). The opinion does not require an annual finding of non-entitlement where no claim was made.

For PERS administrators and county finance staff

The opinion does not decide the PERS dispute. The PERS employee had taken the position that the fee was mandatory to report and pay. The AG reframed the question around eligibility: the fee is owed only "if a constable performs all the duties required by Section 25-7-27(1)(f)," and the Board makes that finding. The AG also stressed that under § 7-5-25 its opinion "relates only to prospective actions" and "can neither validate nor invalidate a past action," so it did not resolve whether past fees were earned.

For taxpayers and county budget watchers

The state-fail fee is a real but capped expense, $2,500 per constable per year, paid only when earned. Boards have discretion to evaluate whether the constable did the work. The opinion is a useful reminder that public boards must document their decisions on the minutes, both when they grant and when they deny.

Common questions

Q: What does "fails in the prosecution" mean?
A: A state criminal case where the prosecution does not result in a conviction. Dismissals, acquittals, and similar outcomes count. The constable's fee compensates them for serving process and attending trial in those cases (where the county or state pays the costs of the failed prosecution).

Q: What exactly must a constable do to earn the fee?
A: The opinion, quoting Slover and Enlow, lists three things: 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"; attend "all trials in state cases in which the state fails in the prosecution, unless lawfully excused or otherwise unavailable for a legitimate reason"; and not overcharge "in the collection of fees for costs, contrary to the provisions of Section 25-7-27."

Q: What counts as "lawfully excused"?
A: The opinion does not enumerate examples. It uses the statutory and prior-opinion phrase "lawfully excused or otherwise unavailable for a legitimate reason," and says the Board makes that determination "consistent with the facts."

Q: Can the constable get a partial fee for partial compliance?
A: No. Quoting Slover, the AG said "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)," and "conversely, if the constable performs all duties set forth above, the board of supervisors has no discretion and must pay the full fee."

Q: How does a constable get the fee paid?
A: The statute provides that the fee is paid "on the allowance of the board of supervisors." The opinion notes that if a constable does not request the fee, the Board has no occasion to evaluate it; if the constable does claim it, the Board evaluates eligibility and either pays after an affirmative finding or, if it denies the claim, records the denial and reasoning in the minutes.

Q: What if the board denies a constable's request?
A: The board must record the denial and the reasoning on its minutes. Public boards "speak only through their minutes" per KPMG, LLP v. Singing River Health Sys. (Miss. 2018). A denial that is not on the minutes is not effective.

Q: When must the fee be paid?
A: The statute says annually, but the AG opinion noted that no statute requires payment before year-end. If the board needs more time to evaluate the constable's performance, it can make the determination after year-end and pay then.

Q: What about the PERS contribution issue in the request?
A: The AG did not resolve it. The PERS employee's position assumed the fee had been earned and was therefore mandatory to report and pay. The opinion reframed the question around eligibility (the fee is owed only if the constable performed the required duties and the Board so finds) and noted that under § 7-5-25 the opinion "relates only to prospective actions" and cannot validate or invalidate the Board's past decisions.

Q: Who pays this fee?
A: Section 25-7-27(1)(f) says the state-fail fee is "paid out of the county treasury on the allowance of the board of supervisors." The statute lists the fees for "marshals and constables"; this opinion addresses the constable state-fail fee paid by the county board of supervisors.

Background and statutory framework

Section 25-7-27 sets the fees that "marshals and constables shall charge." Subsection (1)(f) provides the state-fail fee: "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," capped at $2,500.00 annually and conditioned on the constable not having overcharged for costs.

The eligibility test (serve all warrants, attend all trials unless lawfully excused, no overcharging) requires fact-finding, and the AG has addressed it in a line of opinions. The 2021 Munn opinion is one of that line:

• Shurden (1994): board can refuse the fee if the constable did not serve any warrants or attend any trials in failed cases
• Enlow (2005): articulated the substantial-compliance/no-overcharging test
• Slover (2020): all-or-nothing rule, partial compliance forfeits the entire fee
• Munn (this 2021 opinion): laid out the procedural mechanics and the board-minutes requirement

The Section 7-5-25 limit on AG opinions matters here. The AG cannot bind the Board's eligibility determination by opinion; that is fact-bound. The AG can only state the legal test and the procedural rules.

The KPMG case the AG cited is a 2018 Mississippi Supreme Court decision reaffirming the long-standing "minutes" rule for public boards. A board's vote that is not recorded on the minutes is not a vote. So if a board denies a constable's request, the denial is real only when it is on the minutes.

Citations and references

Statutes:

• Miss. Code Ann. § 7-5-25, AG opinions limited to prospective state law questions
• Miss. Code Ann. § 25-7-27, marshals' and constables' fees (general)
• Miss. Code Ann. § 25-7-27(1)(f), state-fail fee provision

Cases:

• KPMG, LLP v. Singing River Health Sys., 283 So. 3d 662, 669 (Miss. 2018), public boards speak only through their minutes

Prior AG opinions:

• MS AG Op., Slover (Nov. 10, 2020), all-or-nothing eligibility for state-fail fee
• MS AG Op., Enlow (Feb. 4, 2005), substantial compliance standard
• MS AG Op., Shurden (Mar. 23, 1994), board may refuse if constable did not serve any warrants
• MS AG Op., Barrett (Aug. 29, 1984), AG declines overly broad questions

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2021/07/E.Munn_June-30-2021-Board-of-Supervisors-Responsibilities-Regarding-Constables-State-Fail-Fees.pdf

Original opinion text

June 30, 2021

Elise B. Munn, Esq.
Attorney for Copiah County Board of Supervisors
Post Office Drawer 768
Hazlehurst, Mississippi 39083

Re: Board of Supervisors' Responsibilities Regarding Constables "State Fail Fees"

Dear Ms. Munn:

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

Background

You state that the Copiah County Board of Supervisors (the "Board") has made the determination that the county constables are not entitled to the "state fail fee" provided for in Mississippi Code Annotated Section 25-7-27(1)(f), but an employee with the Public Employees Retirement System ("PERS") has taken the position that it is mandatory for such fees to be reported to PERS yearly, and because they were not reported or paid to the constables, the Board is responsible for paying the employer and employee contributions and paying the fee to the constables.

Issues Presented

1. What is the Board's responsibility regarding the fee paid to constables for cases where the state fails in the prosecution—the fee for "state fail" cases?
2. Must the Board determine, prior to the end of the calendar year, whether the constable is or is not entitled to the fee?
3. In the absence of making a finding in the minutes that a constable is entitled to the fee, what is the Board's responsibility?

Brief Response

Your first question is too broad to address by opinion. However, for your guidance, and consistent with the facts and with this office's previous opinions, we note that if a constable performs all the duties required by Section 25-7-27(1)(f), the Board must pay the "state fail fee" to the constable. A constable is ineligible to collect the fee where the Board determines, consistent with the facts, that the constable did not do the following in cases in which the state failed in the prosecution: (1) serve, or diligently attempt to serve, all warrants and other process presented to him or her for service; and (2) attend all trials, unless lawfully excused or otherwise unavailable for a legitimate reason.

In response to your second question, we find no requirement that the Board make a finding that the constables in question are not entitled to the fee. On an annual basis, if the Board determines, consistent with the facts, that the constables performed the required duties and are entitled to the fee, the Board should, prior to paying the fee, making an affirmative finding of such entitlement. Though the fee, if earned, must be paid on an annual basis, we find no requirement that such allowance be made prior to the end of a calendar year.

Your third question is too broad to address by opinion. However, for your guidance, as noted in response to your second question, before paying a constable the fee, the Board is responsible for making an affirmative finding, consistent with the facts, that the constable in question performed the required duties and is entitled to the fee.

Applicable Law and Discussion

Pursuant to Mississippi Code Annotated Section 7-5-25, this office can only issue official opinions on matters involving prospective actions. An official opinion can neither validate nor invalidate a past action. Accordingly, this opinion relates only to prospective actions taken by the Board.

You ask three questions related to the Board paying constables a fee under Section 25-7-27 for such constables performing certain duties in cases in which the state fails in its prosecution, or "state fail" cases. Your first question, which seeks guidance related to the "Board's responsibility regarding the fee," is too broad for this office to address by opinion. See MS AG Op., Barrett at *1 (Aug. 29, 1984) (refusing to respond by official opinion on the basis that the question posed was overly broad). However, for your reference, we provide the following guidance.

Section 25-7-27(1)(f) governs the payment of the fee paid for state fail cases and provides, in 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 . . . $2,500.00.

This office has previously analyzed a constable's job requirements in relation to collecting the fee:

[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., Slover at 3 (Nov. 10, 2020) (quoting MS AG Op., Enlow at 1 (Feb. 4, 2005)). As we opined in Slover, "[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)."¹ Slover, at *3. "Conversely, if the constable performs all duties set forth above, the board of supervisors has no discretion and must pay the full fee." Id.

Turning to your second question, Section 25-7-27 specifically provides that the fee in question is to be paid "on the allowance of the board of supervisors." If the constables did not request to be paid the "state fail fee," the Board would have had no occasion to evaluate whether to pay the fee. Under those circumstances, we find no requirement that the Board make a finding that the constable is not entitled to the fee.² On an annual basis, if the Board determines, consistent with the facts, that the constables performed the required duties and are entitled to the fee, the Board should, prior to paying the fee, making an affirmative finding that the constable is entitled to such fee. Though the fee, if earned, must be paid on an annual basis,³ we find no requirement that such allowance be made prior to the end of a calendar year.

Your third question, which, like your first question, asks generally about the "Board's responsibility" in relation to the fee, is too broad to address by opinion. However, for your guidance, as set forth above, prior to paying a constable the fee, the Board should make an affirmative finding, consistent with the facts, that such constable performed his or her required duties and is entitled to the fee.

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