Can a Mississippi county board of supervisors add secretarial expenses to the county prosecutor's base salary, raising the retirement and tax base?
Plain-English summary
Bolivar County's board of supervisors apparently considered "increasing" the county prosecutor's salary by absorbing the secretarial expense allowance into base salary. Doing so would raise the prosecutor's reported income, which in turn would increase the county's PERS retirement contributions and the prosecutor's tax base.
The board's attorney asked: can the board do that?
The AG said no, briefly and clearly. The county prosecutor's salary is set by Section 25-3-9, which establishes salary tiers based on county population and physical location. Section 25-3-9 also provides separately for secretarial expenses to be paid to the prosecutor in certain counties. Section 19-23-19 provides a general allowance, at the board's discretion, of up to $1,000 to be paid to the prosecutor "for secretarial services actually rendered" by the prosecutor in the discharge of official duties.
The 1992 McDade opinion expressly distinguished the two: the board's authority to pay for secretarial services is "separate and distinct from the authority to employ and compensate a county prosecutor."
So:
- Salary = compensation for the prosecutor's work as prosecutor.
- Secretarial expenses = reimbursement for the cost of secretarial services, not personal compensation.
Folding the second into the first violates the statutory structure. The two amounts have different statutory authority, different purposes, and different treatment for retirement and tax purposes.
What this means for you
For Mississippi county boards of supervisors
The opinion answers a single question: a board cannot increase the prosecutor's statutory base salary by adding secretarial expenses to it. The salary is set by Section 25-3-9, based on the county's population and physical location. Secretarial expenses are authorized separately, both within Section 25-3-9 for certain counties and under Section 19-23-19 (a board-discretion allowance "up to $1,000" for "secretarial services actually rendered"). The opinion holds that secretarial expenses "cannot be included in the prosecutor's salary, nor used in the calculation of retirement or taxes for the prosecutor."
For Mississippi county prosecutors
The opinion treats the secretarial allowance as a payment for secretarial services, "separate and distinct" from salary (McDade, 1992). The practical consequence the opinion draws is narrow: those expense amounts do not become part of the salary figure used to calculate the prosecutor's retirement or taxes. The opinion does not address federal tax treatment or any specific PERS computation beyond that distinction.
Common questions
Q: Can a board raise the prosecutor's salary by rolling in the secretarial allowance?
A: No. The opinion's holding is direct: "The salary of the county prosecutor is separate from secretarial expenses paid by the board of supervisors to the county prosecutor," and those expenses "cannot be included in the prosecutor's salary, nor used in the calculation of retirement or taxes."
Q: How is the county prosecutor's base salary determined?
A: Section 25-3-9 sets it, "based on population and physical location," as the opinion puts it (citing Slover, 2019). The opinion does not give dollar figures.
Q: What is the secretarial expense allowance for?
A: Section 19-23-19 describes it as up to $1,000, at the board's discretion, "for secretarial services actually rendered to said county prosecuting attorney in the discharge of the official duties of his office." Section 25-3-9 separately allows secretarial expenses in certain counties. The opinion treats both as reimbursement for secretarial services, not as the prosecutor's compensation.
Q: Why does the distinction matter for retirement and taxes?
A: Because the opinion holds the secretarial amount is not salary, it cannot be used in calculating the prosecutor's retirement or taxes. Folding it into salary, the request noted, would have increased the county's retirement and tax obligations for the official, which is the move the opinion says a board cannot make.
Background and statutory framework
Mississippi county prosecutors are elected officials in counties that have established the office. They prosecute county-level criminal matters (typically misdemeanors and lower-level offenses) and may handle some civil matters for the county.
Their compensation is set by statute, not by board discretion:
Section 25-3-9: Establishes salary tiers for county prosecutors based on county population and physical location. Also provides, in some counties, additional allowable secretarial expenses.
Section 19-23-19: Provides a general allowance, at the board's discretion, of up to $1,000 paid to the prosecutor "for secretarial services actually rendered to said county prosecuting attorney in the discharge of the official duties of his office."
The opinion rests on the McDade (1992) opinion, which held that a board's authority to pay for secretarial services is "separate and distinct from the authority to employ and compensate a county prosecutor." Building on that, the Barton opinion concludes that secretarial expenses "cannot be included in the prosecutor's salary, nor used in the calculation of retirement or taxes for the prosecutor." That is the full extent of the holding: the two payments have separate statutory authority and the expense payment is not part of the salary figure.
Citations and references
Statutes:
- Miss. Code Ann. § 19-23-19, board allowance up to $1,000 for prosecutor's secretarial services
- Miss. Code Ann. § 25-3-9, county prosecutor salary tiers and allowable expenses
Prior AG opinions:
- MS AG Op., Slover (Aug. 9, 2019), prosecutor salary based on Section 25-3-9
- MS AG Op., McDade (Dec. 16, 1992), board's authority to pay secretarial services is separate and distinct from authority to employ and compensate prosecutor
Source
- Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
- Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2021/10/J.Barton-September-30-2021-Base-Salary-and-Secretarial-Expenses-of-Bolivar-County-Prosecutor.pdf
Original opinion text
September 30, 2021
Ja'Nekia W. Barton, Esq.
Attorney for Bolivar County Board of Supervisors
Post Office Box 1917
Cleveland, Mississippi 38732
Re: Base Salary and Secretarial Expenses of Bolivar County Prosecutor
Dear Ms. Barton:
The Office of the Attorney General has received your request for an official opinion.
Question Presented
Does the board of supervisors have authority to increase the statutory base salary of the county prosecutor by adding secretarial expenses to the salary, thereby increasing the financial obligations of the county regarding retirement and taxes for the elected official?
Brief Response
No. The salary of the county prosecutor is separate from secretarial expenses paid by the board of supervisors to the county prosecutor.
Applicable Law and Discussion
The county prosecutor's salary is set pursuant to Mississippi Code Annotated Section 25-3-9, which provides the allowable salaries based on population and physical location. MS AG Op., Slover at *2 (Aug. 9, 2019). That statute also provides, for certain counties, allowable secretarial expenses to be paid to the county prosecutor under various circumstances. Moreover, Section 19-23-19 provides a general allowance, at the discretion of the board of supervisors, up to $1,000, to be paid to the county prosecutor "for secretarial services actually rendered to said county prosecuting attorney in the discharge of the official duties of his office."
The board of supervisors' authority to pay the county prosecuting attorney for secretarial services is "separate and distinct from the authority to employ and compensate a county prosecutor." MS AG Op., McDade (Dec. 16, 1992). Accordingly, it is the opinion of this office that secretarial expenses cannot be included in the prosecutor's salary, nor used in the calculation of retirement or taxes for the prosecutor.
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/ Gregory Alston
Gregory Alston
Special Assistant Attorney General