Can a Mississippi county board of supervisors force elected officials' offices onto a new countywide payroll schedule?

Plain-English summary

The Hinds County Board of Supervisors decided to switch the county to a new payroll system: a new clock-in process and a change from monthly to semi-monthly pay. The Hinds County Tax Collector wrote in to ask whether the board could impose this on his office and on other elected officials' employees, or whether the elected officials kept control of their own payroll arrangements.

The AG read § 19-2-9 of the Mississippi Code as the controlling statute and answered: an elected official who has adopted their own personnel system under § 19-2-9(2) controls payroll frequency for their staff, and the board's countywide personnel system does not apply to them. If the elected official has not filed their own personnel system, the board's system controls by default.

§ 19-2-9 sets up a two-track regime in counties on the countywide road administration system (§ 19-2-3). Track one (subsection (1)): the board adopts and maintains a countywide personnel system for all county employees not covered by track two. The county administrator implements it. The system covers hiring and termination, appeal and grievance, leave, compensation, classification, training, performance evaluation, and recordkeeping.

Track two (subsection (2)): elected officials other than the supervisors themselves can either (a) adopt their own personnel system or (b) opt into the board's. The personnel system the elected official adopts must be filed with the board, but it is "entirely independent of any policy adopted and implemented by the board of supervisors" (MS AG Op., Haywood (May 1, 2012)).

The AG had previously decided several flavors of this issue. In MS AG Op., Lamar (June 26, 2020), the board wanted to require elected officials to manually upload paper time sheets to a new payroll software. The AG said no: the elected officials had filed their own paper time-sheet system and the board could not reach in. In MS AG Op., Barry (Sept. 21, 2022), the AG confirmed that the method of payroll delivery is part of the personnel system. The Fair opinion now adds payroll frequency to the same list. If the elected official's filed system addresses pay frequency, that controls; if not, the elected official has the authority to determine it.

What the board does control under the opinion: its own employees, and the countywide personnel system applicable to county staff not subject to subsection (2). What it does not control: the personnel administration in an opted-out elected official's office, including pay frequency.

What this means for you

If you are an elected Mississippi county official (sheriff, tax collector, chancery clerk, circuit clerk, tax assessor, etc.)

Under this opinion, whether the board's payroll change reaches your office turns on one fact: have you adopted and filed your own system of personnel administration under § 19-2-9(2)? If you have, the AG says the countywide personnel system has "no application" to you and your employees, so the board's new pay frequency does not apply unless you adopt it. The AG opinion line treats payroll delivery method (Barry (2022)), time-tracking method (Lamar (2020)), and now pay frequency (Fair (2023)) as parts of that personnel system.

If you have not adopted and filed your own system, the statute says you "shall adopt the system of personnel administration adopted by the board of supervisors," so the board's change applies to you by default.

If you are on a Mississippi county board of supervisors

Under § 19-2-9(1) you adopt and maintain the countywide personnel system for county employees not covered by subsection (2). But the AG says you cannot impose that system, including a new pay frequency, on an elected official who has filed his or her own personnel system. For officials who have not filed their own system, the countywide system applies.

If you are a county employee in an elected official's office

If your office has filed its own personnel system, your office's personnel rules, including pay frequency, come from your elected official, not from the board. A board announcement that pay is moving from monthly to semi-monthly may or may not reach your office; ask your elected official's office which system applies to you.

If you are a county attorney advising on this issue

The Haywood (2012), Lamar (2020), Barry (2022), and Fair (2023) opinions form a line: an elected official's filed personnel system is "entirely independent" of board policy and covers payroll delivery method, time-tracking method, and pay frequency. The filing requirement in § 19-2-9(2) is the trigger. An official who has not filed a system defaults into the board's system under the statute.

Common questions

Q: Does this apply only to counties on countywide road administration?
A: Yes. § 19-2-9 only applies to counties operating on a countywide system of road administration described in § 19-2-3. Counties on the beat system have their own framework.

Q: What counts as "filing" a personnel system with the board?
A: The statute requires that the personnel system the elected official adopts, and any amendments to it, be filed with the board of supervisors. The opinion does not prescribe a particular filing format beyond that statutory requirement.

Q: What if the elected official's filed system does not mention pay frequency?
A: The AG's reading in Fair is that an elected official who has adopted a system under § 19-2-9(2) has the authority to determine pay frequency for their employees. The opinion does not separately address a filed system that is silent on the point.

Q: Does this apply to deputies and assistants the elected official appoints?
A: Section 19-2-9(2) applies to the elected officials "who are authorized by law to employ" and their respective employees, which covers the staff in the elected official's office.

Q: Can the elected official adopt the board's policy in part and their own in part?
A: The statute frames it as a choice: the elected official "shall adopt and maintain a system of personnel administration for their respective employees or shall adopt the system of personnel administration adopted by the board of supervisors." The opinion does not address a partial or hybrid arrangement.

Q: What if the elected official has historically followed the board's payroll without formally adopting and filing their own system?
A: Under the statute, an elected official who has not adopted his or her own system "shall adopt the system of personnel administration adopted by the board of supervisors," so the board's system applies until the official adopts and files their own.

Q: Can the board require all county employees, including those in elected officials' offices, to use a single time-tracking system for accountability?
A: Lamar (2020) said no. The board can require its own employees to use the new system. It cannot require an opted-out elected official's employees to use it. The elected official can choose to adopt the system for their office, but the choice is theirs.

Background and statutory framework

§ 19-2-3 designates the counties operating on the countywide system of road administration. The personnel framework in § 19-2-9 applies only to those counties.

§ 19-2-9(1) requires the board of supervisors in those counties to adopt and maintain a countywide personnel system for all county employees other than those covered by subsection (2). The system is implemented by the county administrator. The list of policy areas in subsection (1) is illustrative ("may include, but not be limited to"): hiring and termination, appeal and grievance procedures, leave and holidays, compensation, job classification, training, performance evaluation, recordkeeping.

§ 19-2-9(2) is the elected-official opt-out. Elected officials other than the board members themselves can adopt and maintain their own personnel system or adopt the board's. The system, if adopted independently, must be filed with the board. It is "entirely independent" of board policy (Haywood (2012)). The opt-out covers all the topics in subsection (1) by extension, including the specifics the AG opinion line has confirmed: payroll delivery method (Barry (2022)), time-tracking method (Lamar (2020)), and now payroll frequency (Fair (2023)).

The line of AG opinions builds the doctrine: the elected official's personnel authority is broad, the board's is limited to its own employees once an elected official opts out, and the filing requirement is the trigger that activates the opt-out.

Citations

• Miss. Code Ann. § 19-2-3 (countywide road administration system)
• Miss. Code Ann. § 19-2-9 (county personnel administration framework)
• Miss. Code Ann. § 19-2-9(2) (elected official opt-out)
• MS AG Op., Haywood (May 1, 2012) (elected official's filed system is independent of board policy)
• MS AG Op., Lamar (June 26, 2020) (board cannot require elected official's office to use new payroll software)
• MS AG Op., Barry (Sept. 21, 2022) (method of payroll delivery is part of elected official's personnel system)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/01/E.Fair-January-3-2023-Payroll-for-Elected-Officials.pdf

Original opinion text

January 3, 2023
The Honorable Eddie Fair
Hinds County Tax Collector
Post Office Box 1727
Jackson, Mississippi 39215-1727
Re:

Payroll for Elected Officials

Dear Mr. Fair:
The Office of the Attorney General has received your request for an official opinion.

Background
According to your request, the Hinds County Board of Supervisors is in the process of changing
to a new system of payroll administration. There will be a new clock-in system, and the frequency
of pay will change from monthly to semi-monthly on the new payroll system.
Questions Presented

1. Do the board of supervisors and county administrator have the authority to change the
   frequency of pay of elected officials and their employees, if the elected official has his or
   her own system of administration?

2. If not, can the board of supervisors and county administrator require elected officials to
   comply with the change in frequency of pay since there will be a change in the countywide
   payroll administration system? To what degree do elected officials have to comply with
   the changes being made?
   Brief Response

3. An elected official who has adopted his or her own system of personnel administration
   pursuant to Section 19-2-9(2) of the Mississippi Code has the authority to determine the
   frequency of pay for his or her employees.

4. See Response 1. If an elected official has adopted his or her own system of personnel
   administration pursuant to Section 19-2-9(2), the countywide personnel system
   implemented by the board of supervisors would have no application to that elected official
   and his or her employees. However, if the elected official has not adopted his or her own
   personnel policy, the elected official "shall adopt the system of personnel administration
   adopted by the board of supervisors." Id.
   Applicable Law and Discussion
   Section 19-2-9 provides, in relevant part:
   (1) The board of supervisors of each county which is required to operate on a
   countywide system of road administration as described in Section 19-2-3 shall
   adopt and maintain a system of countywide personnel administration for all county
   employees other than those employees subject to subsection (2) of this section. The
   personnel system shall be implemented and administered by the county
   administrator. Such personnel system may include, but not be limited to, policies
   which address the following: hiring and termination of employees, appeal and
   grievance procedures, leave and holidays, compensation, job classification,
   training, performance evaluation and maintenance of records. . . .

(2) The elected officials of any county described in subsection (1) of this section,
other than members of the board of supervisors, who are authorized by law to
employ shall adopt and maintain a system of personnel administration for their
respective employees or shall adopt the system of personnel administration adopted
by the board of supervisors. The personnel system adopted and any amendments
thereto shall be filed with the board of supervisors.
(Emphasis added.) This office has previously opined that "although any such system [of personnel
administration adopted by an elected official] must be filed with the clerk of the board of
supervisors, it is entirely independent of any policy adopted and implemented by the board of
supervisors." MS AG Op., Haywood at 4 (May 1, 2012) (citation omitted.)
In the Lamar opinion, county elected officials had decided not to use a time clock or computer
login but instead wanted to continue with paper time sheets. MS AG Op., Lamar at 1 (June 26,
2020). We were asked whether a board of supervisors could require elected officials to manually
upload their employees' time from their time sheets to the payroll software for the payroll clerk to
process and make payment. Id. We opined that the board of supervisors did not have the authority
"to implement a new payroll system as part of its personnel administration and require other county
elected officials to manually enter their employees' time sheets into this system if the elected
official has chosen . . . and filed with the board, his [or] her own system of personnel
administration, i.e., paper time sheets." Id. We have also opined that a system of personnel
administration adopted by an elected official under Section 19-2-9(2) includes the method of
payroll delivery. MS AG Op., Barry at *3 (Sept. 21, 2022). Similarly, it is the opinion of this office
that an elected official who has adopted a system of personnel administration pursuant to Section
19-2-9(2) has the authority to determine the frequency of pay for his or her respective employees.
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