MS 2022-11-C-McAdams-November-8-2022-Compensation-of-Greenwood-City-Attorney-for-Providing- November 8, 2022

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

Short answer: The city. Under § 21-15-25, the municipal attorney is paid by the municipality. If the work for the Greenwood Tourism Commission falls outside the contracted-for duties, the city can pay additional compensation by unanimous board vote, but the city remains the payer.

Disclaimer: This is an official Mississippi Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Mississippi attorney for advice on your specific situation.

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

If your municipal attorney represents a related municipal entity (tourism commission, redevelopment authority, port commission), the cost falls on the city. Build that into the budget. If the entity's work is substantial enough to push the attorney's hours beyond the original contracted scope, plan for a unanimous-vote compensation increase under § 21-15-25.

If you are a city attorney

Track your hours by client when working for related municipal bodies. If you find yourself crossing into substantial new work, document it for the council so they can act under § 21-15-25 if needed.

If you sit on a Mississippi tourism commission

Your commission does not directly compensate the city attorney. The city does. If the legal work needed is heavy, coordinate with the city to ensure the attorney is properly funded.

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 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: What if the tourism commission has surplus from its 1% tax?
A: Surplus may be transferred to the city or used per the bill's spending authority. The opinion does not address direct GTC funding of the attorney; the structure runs through the city.

Q: Can the city require the tourism commission to reimburse the city?
A: The opinion does not address that. The city and the GTC could conceivably enter into a memorandum of understanding for reimbursement of identified attorney costs. That is an inter-entity matter.

Q: Does this apply to other commissions or boards (water, port, library)?
A: The reasoning generalizes wherever the city attorney is statutorily designated as a related body's counsel. Read the body's enabling legislation to confirm the pay path.

Background and statutory framework

§ 21-15-25 is the workhorse statute on municipal attorneys: appointment, compensation, additional compensation. Mississippi's municipal-attorney case law (Alexander, Via, others) sits on top of it. Local and special legislation creating bodies like the Greenwood Tourism Commission can assign work to the city attorney, but the funding obligation flows back to § 21-15-25's payer (the city) unless the local act expressly says otherwise.

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

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