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
When budgeting for county prosecutors, separate the line items:
- Base salary: as set by Section 25-3-9 for your county
- Secretarial expenses: as separately allowed by statute (up to $1,000 under Section 19-23-19, or the larger amount allowed by Section 25-3-9 in some counties)
Do not combine them on payroll. Do not report combined amounts to PERS as compensation. Do not use combined amounts for tax calculations.
If you want to provide more compensation to the prosecutor, the legal path is:
- Confirm what Section 25-3-9 allows for your county
- Pay that amount as salary
- Separately pay secretarial expenses if they are actually used
- Do not creatively re-label
The legislature sets prosecutor salaries by statute. Boards do not have discretion to increase them by reclassifying other payments.
For Mississippi county prosecutors
Your salary structure is statutory. The base salary in Section 25-3-9 is what it is. Secretarial expenses are reimbursement, not compensation. Practical implications:
- Your PERS retirement basis is the statutory salary, not the salary plus secretarial reimbursement
- Your tax basis is the statutory salary plus any taxable reimbursements (most secretarial reimbursements should be non-taxable under federal accountable-plan rules)
- Higher PERS basis would require higher base salary, which requires legislative action
If you provide secretarial services yourself (rather than hiring out), the secretarial allowance is a reimbursement for the time and effort you put into that secretarial work. It is not a salary supplement.
For PERS administrators auditing county prosecutor records
When reviewing county prosecutor compensation:
- Confirm the salary reported is at or below Section 25-3-9's allowable amount
- Verify that secretarial expense payments are reported separately and not as compensation
- A county that is reporting "salary" higher than Section 25-3-9 allows may be improperly absorbing secretarial expenses
If a county has been reporting combined amounts, both PERS contributions and the underlying compensation arrangement may need correction.
For county finance officers and CPAs
Categorize prosecutor payments correctly:
- Salary line: Section 25-3-9 amount, with PERS contributions and tax withholding as employee compensation
- Secretarial expense line: separate, treated as reimbursement, no PERS contributions or tax withholding (assuming proper documentation)
Make sure prosecutor's W-2 and county financial reports reflect this separation.
For Mississippi state legislators
The legislature periodically updates Section 25-3-9 to reflect changes in cost of living, county growth, etc. If counties are improperly inflating prosecutor compensation by absorbing secretarial expenses, that may signal pressure to revisit the statutory salary tiers. The 2021 opinion is a reminder that the structure works as designed only if boards respect the salary-vs-expense distinction.
For attorneys representing prosecutors in PERS or tax disputes
If your client has been having combined amounts reported as salary, the 2021 opinion supports separating them. If the prosecutor has been paying PERS contributions on the combined amount, those contributions on the secretarial reimbursement portion may be recoverable. If the prosecutor has been paying income tax on the combined amount, the secretarial reimbursement portion (if properly documented as reimbursement under federal accountable-plan rules) may not have been taxable.
Common questions
Q: How is the county prosecutor's base salary determined?
A: Section 25-3-9 sets prosecutor salaries by statute, with tiers based on county population and physical location. Larger and more urban counties have higher allowable salaries. The statute is amended periodically by the legislature.
Q: What is the secretarial expense allowance for?
A: It compensates the prosecutor for the cost of secretarial services rendered in the office. The 2021 opinion's reading (consistent with the 1992 McDade opinion) treats it as reimbursement for the secretarial function, not as personal compensation for the prosecutor's professional services.
Q: Can the prosecutor hire a real secretary with the allowance?
A: Generally yes. The allowance is for secretarial services. If the prosecutor hires staff, the allowance can fund part of the staff cost. If the prosecutor does the secretarial work themselves, the allowance reimburses that effort.
Q: How do you document secretarial expenses to qualify as non-taxable reimbursements?
A: Federal accountable-plan rules (IRS Section 62) require:
- Expenses must be incurred for business purposes
- Substantiation (records of services rendered, time, cost)
- Return of any excess reimbursement
Counties should set up documentation procedures consistent with these rules.
Q: What if Section 25-3-9 allows higher secretarial expenses for certain counties?
A: Some counties have higher statutory secretarial allowances under specific provisions in Section 25-3-9. The same principle applies: those higher allowances are still expenses, not salary. They are accounted for separately.
Q: What's the impact on PERS for a prosecutor over a long career?
A: Significant. PERS retirement benefits are based on average compensation. If the prosecutor's reported compensation is artificially inflated by including secretarial expenses, PERS pays higher retirement benefits. If those expenses are properly excluded, the PERS base is the statutory salary, producing accurate retirement benefits.
Q: Has there been audit activity around this issue?
A: The 2021 opinion does not mention specific audits, but the question came from a county attorney, suggesting the topic was being discussed locally. Counties that have been combining amounts may face PERS or State Auditor scrutiny.
Q: What if a county has been doing this for years?
A: The 2021 opinion is forward-looking (Section 7-5-25 limits AG opinions to prospective questions). Past actions are not validated or invalidated. Going forward, separate the line items. For past errors, consult with PERS, the State Auditor, or counsel about correction procedures.
Q: Does this apply to other county officials with secretarial expense allowances?
A: The 1992 McDade opinion was specifically about prosecutors, and the 2021 opinion is too. The general principle (statutory expense allowances are not part of salary) likely applies to other officials with similar statutory structures, but those officials should consult their own statutes.
Q: What if the secretarial expenses are paid as direct reimbursement for receipts?
A: Direct receipt-based reimbursement is the cleanest treatment: not salary, not taxable to the prosecutor (under accountable-plan rules), no PERS implication. The Section 19-23-19 "up to $1,000" allowance and the Section 25-3-9 expenses can be administered this way.
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 two-track structure (salary plus separate secretarial expenses) was a deliberate legislative choice. Salaries are kept at moderate levels (county prosecutors are part-time officials in many counties, with private practices on the side). Secretarial expenses recognize the additional administrative burden of running a prosecutor's office.
The McDade (1992) opinion was the foundational AG analysis. The board's authority to pay secretarial expenses is "separate and distinct from the authority to employ and compensate a county prosecutor." The two functions cannot be merged.
The 2021 Barton opinion reaffirms McDade in the specific context of PERS and tax calculations. The principle applies broadly:
- Secretarial expenses are not salary
- They cannot be folded into salary
- They do not increase PERS contributions or retirement benefits
- They are not (typically) part of the taxable wage base
For Mississippi county financial administration, the lesson is to keep the categories clean. Salary on one line, expenses on another, both consistent with the controlling statutes.
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