Can a Mississippi chancery clerk close the office independently before a hurricane, or do they need board of supervisors authorization?

Plain-English summary

Harrison County's chancery clerk asked five questions about local-emergency authority. The AG could only answer questions about the chancery clerk's own duties under Section 7-5-25; questions about the board of supervisors' or board president's authority were declined.

Chancery clerk's office closure authority: None, independently. Section 25-1-99 requires the chancery clerk's office to be open Monday through Friday from 8:00 a.m. to 5:00 p.m. The Mississippi Constitution requires courts to remain open. Rule 77 of the Mississippi Rules of Civil Procedure governs the clerk's office hours. The chancery clerk has no inherent authority to close the office.

Local emergency framework: Under the Emergency Management Law (Sections 33-15-1 et seq.), the president of the Board or the Board itself can declare a local emergency. Section 33-15-7(d). Once declared, the Board "may promulgate orders and regulations necessary to provide for the protection of life and property." This gives the Board authority during a declared local emergency to close county offices or to authorize specific elected officials to close their offices.

Without Board action: The chancery clerk cannot close. The combination of Section 25-1-99 (office hours), the Constitution (open courts), and Rule 77 (clerk's office) requires the office to remain open absent Board emergency action.

Telephonic polls and virtual meetings (Questions 4-5): The AG declined to opine on past actions or duties of others. As general guidance, public bodies must comply with the Open Meetings Act, may conduct meetings through teleconference or video means under Section 25-41-5, and the chancery clerk (as clerk of the Board) is required by Section 19-3-27 to keep and create the minutes. The Board has authority to call emergency meetings under Section 19-3-19(3). The 1997 Sherard opinion clarifies that the Board has ultimate authority over what should be included in or omitted from the minutes, subject to statutory requirements.

The AG also recommended contacting the Administrative Office of Court for guidance on Rule 77 compliance during extreme weather.

What this means for you

For chancery clerks

Under the opinion, the chancery clerk "does not have the independent authority to close his office in anticipation of extreme weather conditions." The office "may only be closed under the Emergency Management Law pursuant to an order of the Board," and, as clerk of the chancery court, the clerk must comply with Rule 77 of the Mississippi Rules of Civil Procedure and any orders issued by the court. The opinion suggests contacting the Administrative Office of Court for direction on Rule 77 compliance during extreme weather.

For boards of supervisors

The opinion describes, but does not adjudicate, the Board's role. Under Section 33-15-7(d), the president of the Board or the Board itself may declare a local emergency, and during it the Board "may promulgate orders and regulations necessary to provide for the protection of life and property." The opinion states that once a local emergency is declared, the Board "has the authority to close county offices or grant the applicable elected local official discretion to close his office if the Board determines that it is necessary." It declined to opine on the separate question of the Board president's or county administrator's own authority, because that falls outside the clerk's office.

For county attorneys

The opinion limits itself to the chancery clerk's authority under Section 7-5-25, since the clerk made the request. It identifies the operative authorities (Section 25-1-99 office hours, the open-courts provisions of the Constitution, Rule 77, and the Emergency Management Law) but expressly declines to address the Board's or Board president's powers, which would require a separate request from those officials.

Common questions

Q: Can a Mississippi chancery clerk close the office before a hurricane on their own authority?
A: No. The opinion concludes the clerk "does not have the independent authority to close his office in anticipation of extreme weather conditions"; the office "may only be closed under the Emergency Management Law pursuant to an order of the Board."

Q: Who can authorize closing county offices in an emergency?
A: Under Section 33-15-7(d), the opinion says the president of the Board or the Board itself may declare a local emergency, after which the Board "has the authority to close county offices or grant the applicable elected local official discretion to close his office."

Q: Does the Governor's or President's emergency declaration change this?
A: The opinion notes it is "specific to local emergency declarations, though it may still be affected by applicable executive orders and/or declarations of emergency issued by the Governor or the President of the United States." It does not analyze those.

Q: How does Rule 77 fit in?
A: The opinion says the clerk, as clerk of the chancery court, must keep the office hours set by Rule 77 and comply with any court orders, and it suggests contacting the Administrative Office of Court for direction on Rule 77 compliance during extreme weather.

Q: Did the AG answer the questions about telephonic polls and virtual board meetings?
A: No, not as to any past action. The opinion says it does "not by official opinion validate or invalidate past actions." For general information, it notes a board must comply with the Open Meetings Act, may conduct meetings by teleconference or video under Section 25-41-5, and that the clerk must record the board's actions in the minutes (Section 19-3-27; Sherard, 1997), with the board having "the ultimate authority to determine what should be included and what should be omitted from the minutes."

Q: Can the board hold an emergency meeting to act on a closure?
A: The opinion notes the Board "has the authority to call emergency meetings in accordance with Section 19-3-19(3)." It does not go further into the mechanics.

Background and statutory framework

Mississippi's Emergency Management Law (Sections 33-15-1 et seq.) sets up the framework for emergency declarations. Local emergencies are declared by the president of the Board or by Board action. Once declared, the Board has broad authority to issue orders and regulations protecting life and property.

The chancery clerk's office hours and operations are governed by:

• Section 25-1-99 (office hours, 8:00 a.m. to 5:00 p.m. Monday through Friday)
• Mississippi Constitution (open courts)
• Rule 77 of the Mississippi Rules of Civil Procedure (chancery court clerk)
• Section 19-3-27 (clerk's role with the Board)

The chancery clerk's authority is bounded by these. Closure requires either Board authority through the Emergency Management Law or judicial authority through Rule 77 and court administration.

The Open Meetings Act (Sections 25-41-1 et seq.) governs public bodies' meetings. Section 25-41-5 allows teleconference and video meetings. The Sherard 1997 opinion clarifies the clerk's role in minute-keeping while preserving the Board's ultimate authority over content.

The AG's decline to opine on Board or Board-president authority reflects the Section 7-5-25 limitation: AG opinions go to officials about their own offices, not about other officials' duties. The chancery clerk got an answer about the chancery clerk's authority. The Board's authority would require a separate request from the Board president or attorney.

Citations and references

Statutes:

• Miss. Code Ann. § 19-3-19, special meetings of boards of supervisors; emergency meeting authority
• Miss. Code Ann. § 19-3-27, chancery clerk as clerk of the Board
• Miss. Code Ann. § 25-1-99, office hours for chancery clerk and other county officers
• Miss. Code Ann. § 25-41-1 et seq., Open Meetings Act
• Miss. Code Ann. § 25-41-5, teleconference and video meetings
• Miss. Code Ann. § 33-15-1 et seq., Emergency Management Law
• Miss. Code Ann. § 33-15-7(d), local emergency declaration and orders

Mississippi Rules of Civil Procedure:

• Rule 77, court office hours

Mississippi Constitution:

• Miss. Const. art. 3, §§ 24, 25, 26, 26A (open courts)

Prior AG opinion cited:

• MS AG Op., Sherard (Oct. 10, 1997), chancery clerk role in keeping minutes; Board's ultimate authority over content

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2022/03/J.McAdams-February-24-2022-Local-State-of-Emergency.pdf

Original opinion text

February 24, 2022

John McAdams
Chancery Clerk, Harrison County
Post Office Drawer CC
Gulfport, Mississippi 39502

Re: Local State of Emergency

Dear Mr. McAdams:

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

Questions Presented

1. Does the president of the board of supervisors have, in a state of emergency, the authority to independently, without a county board of supervisors ("Board") vote, direct the County Administrator to close all county services (excluding 1st and 2nd Judicial District Courthouses) which directly affect County business?

2. In anticipation of extreme weather conditions from a severe natural disaster such as a hurricane, does an elected official (tax collector, tax assessor, circuit clerk and chancery clerk) who maintains offices within the county courthouse, have the authority to close their individual offices?

3. Is that elected official referenced in question 2 required to seek approval from the Board prior to closing his/her individual office if the county courthouse remains open for business?

4. Can a telephonic poll taken among the Board members, conducted by the president, be classified as an official action of the Board if the telephonic poll was taken without the participation of the clerk of the Board?

5. If the answer to Question 4 is yes, it is important that guidance be provided on the following question. If private virtual meetings are conducted by the president of the Board or among the Board as a whole, without participation from the county chancery clerk, do these Board actions need to be ratified at a later board meeting to ensure the minutes of the actions are properly documented?

Brief Response

1. Pursuant to Section 7-5-25, the Attorney General may only issue official opinions to public officials "upon any question of law relating to their respective offices." Because it relates to the authority of the president of the Board or the county administrator, we cannot issue an official opinion to you on this question.

2. No. The chancery clerk does not have the independent authority to close his office in anticipation of extreme weather conditions.

3. The chancery clerk's office may only be closed under the Emergency Management Law pursuant to an order of the Board. Additionally, as clerk of the chancery court, the chancery clerk's office must comply with Rule 77 of the Mississippi Rules of Civil Procedure and any orders issued by the court.

4. To the extent your question relates to a specific prior action, we do not by official opinion validate or invalidate past actions. As a general matter, a board of supervisors must conduct its meetings in accordance with the Open Meetings Act, Miss. Code Ann. § 25-41-1, et seq., and record its official action in the minutes.

5. See Response 4.

Applicable Law and Discussion

As an initial matter, pursuant to Section 7-5-25, official opinions of this office are limited to prospective questions of law relating to the requesting official's respective office. Official opinions are not issued to advise one public officer about another public officer's duties and responsibilities or address the validity of past actions. Thus, we must decline to respond to your questions regarding past action or the authority of the Board and limit this opinion to your authority as chancery clerk. Further, because your questions ask about your authority in relation to actions of the local board of supervisors, this opinion is specific to local emergency declarations, though it may still be affected by applicable executive orders and/or declarations of emergency issued by the Governor or the President of the United States.

Section 25-1-99 generally requires the chancery clerk's office to be open Monday through Friday from 8:00 a.m. to 5:00 p.m. Additionally, the Mississippi Constitution requires that all state courts, including chancery courts, remain open for business to ensure that the courts fulfill their constitutional and statutory duties. See Miss. Const. Art. 3, §§ 24, 25, 26, and 26A. The chancery clerk is required by law to keep the office hours set by Rule 77 of the Mississippi Rules of Civil Procedure.

In accordance with the Emergency Management Law, Miss. Code Ann. Section 33-15-1, et seq., the president of the Board or the Board itself has the authority to declare a local emergency. Miss. Code Ann. § 33-15-7(d). During the local emergency, the Board "may promulgate orders and regulations necessary to provide for the protection of life and property." Id. It is the opinion of this office that if a local emergency has been declared, the Board has the authority to close county offices or grant the applicable elected local official discretion to close his office if the Board determines that it is necessary pursuant to the Emergency Management Law. Absent such direction from the Board, a chancery clerk does not have the independent authority to close his or her individual office in anticipation of extreme weather conditions from a severe natural disaster. We suggest that you contact the Administrative Office of Court for further direction on compliance with Rule 77 during extreme weather conditions.

As stated above, we cannot respond by official opinion to your fourth and fifth questions to the extent they relate to specific past actions. For informational purposes, public bodies must comply with the Open Meetings Act and may conduct official meetings through teleconference or video means in accordance with Section 25-41-5. The chancery clerk, as clerk of the Board, is required by Section 19-3-27 to "not only keep and preserve the minutes, but also create or make the minutes by entering on them all actions taken by the board." MS AG Op., Sherard at 1 (Oct. 10, 1997). However, in Sherard, we also noted that the Board "has the ultimate authority to determine what should be included and what should be omitted from the minutes, so long as the statutory requirements are met." Id. at 2. Additionally, we note that the Board has the authority to call emergency meetings in accordance with Section 19-3-19(3).

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/ Beebe Garrard
Beebe Garrard
Special Assistant Attorney General