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: its own employees' pay schedule, the countywide personnel system applicable to non-elected-official staff, and the budget itself. What the board does not control: the day-to-day personnel administration in an opted-out elected official's office, including pay frequency and time-tracking method.
What this means for you
If you are an elected Mississippi county official (sheriff, tax collector, chancery clerk, circuit clerk, tax assessor, etc.)
Check whether your office has filed its own personnel system with the board under § 19-2-9(2). If you have, you control payroll frequency, time-tracking method, and other personnel matters covered by the system. The board's countywide changes (new payroll software, new clock-in system, new pay schedule) do not apply to you unless you choose to adopt them.
If you have not filed a system, you default to the board's. To opt out, adopt your own system in writing, file it with the board, and update it as needed. Your filed system is on the public record but is independent of the board's policies.
When the board announces a major payroll or personnel change, your move is: (a) review your own filed system, (b) decide whether to adopt the change voluntarily for your office, (c) communicate clearly to your staff and to the board which path you are taking. Do not assume silence equals acceptance of the board's change.
If you are on a Mississippi county board of supervisors
You can adopt and maintain a countywide personnel system, but you cannot impose it on elected officials who have filed their own. Before rolling out a new payroll system, identify which elected officials have filed their own personnel systems (subsection (2)) and which have defaulted to yours. Communicate the change to both groups. Do not promise a uniform countywide rollout if some offices have opted out.
You still control the budget, including the appropriation amounts for elected officials' offices and your own. Frequency-of-pay decisions in opted-out offices do not change your overall budget authority. Make sure your software vendor can accommodate office-by-office variations in pay schedule and time-tracking.
If you are a county administrator implementing the change
Map the universe before you launch. For each county office:
- Is it an elected official's office under § 19-2-9(2)?
- Has the elected official filed a personnel system with the board?
- Does that system address pay frequency or time-tracking?
Offices that have not opted out follow your countywide system automatically. Offices that have opted out are independent unless and until they adopt the new system on their own. Run the software pilot with at least one of each category to flush out edge cases before going live.
If you are a county employee in an elected official's office
Your office's personnel rules come from your elected official, not from the board, if your office has filed its own system. A board announcement that pay is moving from monthly to semi-monthly may or may not reach you; ask your elected official's office. Do not assume your check schedule is changing just because the board's is.
If you are a county attorney advising on this issue
The Lamar (2020), Barry (2022), Haywood (2012), and Fair (2023) opinions form a clean line: the elected official's personnel system covers method of payroll delivery, pay frequency, time-tracking method, and similar administration. The board cannot override an opted-out office on these matters.
Two practical issues you should brief: (1) Software/vendor contracts that assume countywide adoption may need amendment if multiple opted-out offices stay on legacy systems; (2) The "filed with the board" requirement is not just a formality. If an elected official has not actually filed a system, they default into the board's system and lose the ability to claim independence on a particular issue.
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 the elected official to file the personnel system and any amendments with the board. Best practice: a written policy adopted by the elected official, transmitted to the board with a cover letter, and entered on the board's minutes for the public record.
Q: Can the board refuse to fund a payroll structure adopted by an elected official?
A: The board controls the budget appropriation. It does not control how the elected official spends within that appropriation. As long as the elected official's payroll structure stays within the budgeted amount and complies with state and federal wage law, the board cannot block it through line-item refusal.
Q: What if the elected official's filed system does not mention pay frequency?
A: The AG's reading in Fair is that an opted-out elected official has authority to determine pay frequency for their staff. A silent system probably gives the elected official discretion. Best practice: include pay frequency explicitly in the filed system to remove ambiguity.
Q: Does this apply to deputies and assistants the elected official appoints?
A: Yes. § 19-2-9(2) covers all employees the elected official is "authorized by law to employ," which includes deputies and assistants 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 lets the elected official adopt their own system or adopt the board's. Hybrid systems are not specifically authorized. Best practice: adopt one comprehensive policy and amend as needed.
Q: What if the elected official has historically followed the board's payroll without formally opting in?
A: They are likely defaulted into the board's system. To assert authority to deviate now, they should formally adopt and file their own system. Going forward, the board's countywide changes apply unless and until they file.
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?
- 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 -
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. -
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