If a Mississippi city attorney does work for a separately-funded tourism commission, who pays?

Plain-English summary

The Greenwood Tourism Commission was created by 1989 local legislation, last amended by 2021 Miss. S.B. 3079. The bill is funded by a 1% hotel and restaurant tax and reads as a separate body, but it specifies that "[t]he city attorney shall be the attorney for the commission." Mayor McAdams asked who has to pay the attorney for tourism-commission work: the city or the commission.

The AG: the city.

§ 21-15-25 lets municipal governing authorities annually appoint and employ an attorney. Compensation and duties are set by the governing authorities. If the city attorney's services for the GTC fall within the regular contracted scope, base salary covers it. If they go beyond, the same statute lets the governing authorities, "by unanimous vote, and on proper finding," increase the compensation for the remaining term. Either way, the city pays. The 2014 Alexander opinion already articulated this for the general municipal-attorney case; the McAdams opinion applies it to the tourism-commission overlay.

The opinion does not interpret the GTC's specific bill or quibble over which legal services the GTC actually requires. It just locates the payment obligation: the city.

What this means for you

If you serve as a Mississippi mayor or city council member

The opinion holds that when the city attorney does legal work for the Greenwood Tourism Commission, the City is responsible for paying the attorney, whether through the base salary or as additional compensation. Under § 21-15-25, if the services required become greater than anticipated at appointment, the governing authorities may increase the attorney's compensation "by unanimous vote, and on proper finding."

If you are a city attorney

Under the opinion, the City (not the commission) pays you for the GTC work. Whether a particular service is outside the scope of your regular duties and employment contract is, per Alexander, a factual determination for the governing authorities.

If you sit on a Mississippi tourism commission

The opinion holds the commission does not pay the city attorney; the City does. The enabling act provides that "[t]he city attorney shall be the attorney for the commission," but the payment obligation rests with the City under § 21-15-25.

Common questions

Q: Why doesn't the tourism commission pay the city attorney directly? A: § 21-15-25 designates the municipality as the payer of the municipal attorney. The 2021 Miss. S.B. 3079 sets the city attorney as the GTC's attorney but does not displace the city's payment obligation under the general municipal-attorney statute.

Q: Can the city require the tourism commission to reimburse the city for the attorney's work? A: That was the exact question presented, and the AG's answer was that compensation for the city attorney's services to the GTC is the responsibility of the City of Greenwood. The opinion did not authorize requiring the GTC to pay.

Q: Did the AG decide what legal services the tourism commission actually needs? A: No. The opinion states the specific legal needs of the GTC "are not at issue in this opinion" and are "questions of fact best determined by the GTC." It cited the Card opinion for the point that there is no requirement for legal counsel to attend tourism-commission meetings.

Background and statutory framework

Section 21-15-25 governs the appointment and compensation of municipal attorneys, including possible additional compensation for unanticipated duties. The Alexander and Via AG opinions explain the governing authorities' role in defining duties and compensation. For the Greenwood Tourism Commission, the AG reads the local act's city-attorney assignment together with Section 21-15-25 and concludes the City of Greenwood pays its attorney for that work.

Citations

• Miss. Code Ann. § 21-15-25 (municipal attorney appointment, compensation, additional compensation)
• 2021 Miss. S.B. 3079 (Greenwood Tourism Commission, with city-attorney designation)
• MS AG Op., Card (July 13, 1994) (no requirement for legal counsel at tourism commission meetings)
• MS AG Op., Alexander (Apr. 25, 2014) (municipality may employ municipal attorney; additional-compensation determination is factual)
• MS AG Op., Via (Dec. 10, 2004) (municipal attorney duties and compensation set by governing authorities)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2022/11/C.McAdams-November-8-2022-Compensation-of-Greenwood-City-Attorney-for-Providing-Legal-Services-to-the-Greenwood-Tourism-Com.pdf

Original opinion text

November 8, 2022
The Honorable Carolyn McAdams
Mayor, City of Greenwood
Post Office Box 907
Greenwood, Mississippi 38935-0907
Re:

Compensation of Greenwood City Attorney for Providing Legal Services to the Greenwood Tourism Commission

Dear Mayor McAdams:
The Office of the Attorney General has received your request for an official opinion. Background According to your request, the Greenwood Tourism Commission was established by Chapter 813, Local and Private Laws of 1989. The bill has been amended several times, most recently by 2021 Miss. Senate Bill No. 3079. You quote several sections of the bill that indicate the Greenwood Tourism Commission is an entity separate and apart from the City of Greenwood but also acknowledge that the bill plainly states that the city attorney shall be the attorney for the Greenwood Tourism Commission. You question who is responsible for compensating the city attorney when he or she does legal work for the Greenwood Tourism Commission. Question Presented May the City of Greenwood require the Greenwood Tourism Commission to pay the city attorney for legal services provided to the Greenwood Tourism Commission, including attendance at commission meetings, advice and counsel, legal research, etc.? Brief Response Compensation for services provided to the Greenwood Tourism Commission by the city attorney is the responsibility of the City of Greenwood. Applicable Law and Discussion Funded by a one percent hotel and restaurant special tax, the Greenwood Tourism Commission (the "GTC") is a municipal entity that functions in an advisory capacity as part of the executive branch and has "authority over all matters relating to establishing, promoting and developing conventions and tourism in the city. . . ." 2021 Miss. S.B. 3079, §§ 2, 4. The GTC may also carry out tasks that the mayor may assign to it by executive order. Id. at § 2.

The language of S.B. 3079 mandates that "[t]he city attorney shall be the attorney for the commission." However, it does not state what particular legal services the GTC may require. Your request relates that the city attorney may provide services such as attendance at GTC meetings, legal research, and advice and counsel. While this office has opined in the past that there is no requirement for legal counsel to be present at tourism commission meetings, the specific legal needs of the GTC are not at issue in this opinion, and those needs are questions of fact best determined by the GTC. See MS AG Op., Card at 1 (July 13, 1994) (opining that there is no need for legal counsel to be present at meetings of the Coahoma County Tourism Commission). Municipal governing authorities are statutorily authorized to annually appoint and employ an attorney for the municipality. Miss. Code Ann. § 21-15-25; see also MS AG Op., Alexander at 1 (Apr. 25, 2014) ("We have consistently opined that a municipality may employ a municipal attorney . . . to represent the interests of a municipality.") "The specific duties and compensation of the Town Attorney are to be prescribed and fixed by the municipal governing authorities." MS AG Op., Via at 2 (Dec. 10, 2004). Section 21-15-25 provides that the municipal attorney may be paid additional compensation for duties outside the scope of the contracted-for duties and services: Should the services and duties required of a regular municipal attorney at any time during his term of office become greater than that anticipated by the governing authorities at the time of his appointment, the governing authorities, by unanimous vote, and on proper finding, may increase the compensation of such attorney for the remaining portion of his term in such amount as the governing board may find and adjudge to be fair and reasonable to compensate said attorney for his excessive and unanticipated services and duties. Id. The City of Greenwood (the "City") must determine whether the legal services provided to the GTC are within the prescribed duties of the city attorney and therefore covered by the base salary or whether such services provided to the GTC are outside those covered by the contracted-for compensation and require additional compensation. Either way, the statute provides that the city attorney is to be paid by the municipality for the services he or she provides. It is the opinion of this office that the city attorney is required to provide services to the GTC, and the City is responsible for paying the city attorney, either as part of a regular base salary or in the form of additional compensation. "The determination as to whether a particular service is outside the scope of the regular duties and employment contract of the municipal attorney is a factual one to be made by the governing authorities." Alexander at 2. 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/ Misty Monroe
Misty Monroe
Assistant Attorney General