Can a Mississippi county board of supervisors retroactively raise a county court judge's salary for a previous year if it failed to do so at the time?
Plain-English summary
In 2000, the Coahoma County Board of Supervisors passed a resolution setting the County Court Judge's salary at $1,000 less than what the state pays circuit and chancery judges. The Judge was paid that way for years.
For the 2020-2021 budget year, the Board set the Judge's salary at $135,000 (which was $1,000 below the $136,000 then paid to circuit/chancery judges). Effective January 1, 2021, circuit and chancery judges' salaries jumped to $149,000 under § 25-3-35. The County Court Judge's salary stayed at $135,000.
The Judge later asked the Board to retroactively pay him the $14,000 difference for the 2021 year. The current Board wanted to know if it could do that.
The AG said no.
§ 96 of the Mississippi Constitution prohibits "extra compensation, fee, or allowance, to any public officer, agent, servant, or contractor, after service rendered." This applies to counties as well as the state per Golding v. Salter, 234 Miss. 567, 107 So. 2d 348 (1958).
Narrow exception: retroactive raises are permitted only for "back pay previously due but unpaid because of administrative error." MS AG Op., Mosley (Feb. 22, 2014). An administrative error means a mandatory increase that wasn't paid through oversight, not a discretionary increase the agency chose not to give.
In Coahoma County's case:
- The Board had discretion under § 9-9-11 to set the County Court Judge's salary up to $1,000 less than the circuit/chancery salary (subsections (1) and (7)) or up to 90% of the circuit/chancery salary on a graduated schedule (subsection (4)(c)).
- The Board chose not to increase the Judge's salary in 2021. That was a discretionary choice, not an administrative error.
- The 2000 resolution applied to fiscal year 2000-2001 and did not bind successor Boards.
- A board cannot bind a successor board to a contract unless statutorily authorized.
So the Board cannot retroactively raise the salary. The Judge received compensation that met the statutory minimum and was within Board discretion at the time. § 96 closes the door on after-the-fact increases.
Going forward, the Board has full discretion to set the Judge's salary at any level allowed by the applicable subsection of § 9-9-11, including the highest tier. But it can't reach back into the 2021 year.
What this means for you
If you are a Mississippi county court judge
If your county Board has discretion over your salary and chose not to give you a raise, you cannot get a retroactive bump for that year. § 96 forecloses it. Your remedy is forward-looking: persuade the current Board to set your prospective salary higher.
If you are a Mississippi county attorney
Salary disputes from prior years should generally end in "we cannot retroactively increase." The exception is narrow: a mandatory increase that should have been paid but wasn't, due to error. Discretionary increases that weren't given are not recoverable.
If you are on a board of supervisors
You can set salaries going forward at any level the statute allows. You cannot reach back to fix a year you didn't act on. You also can't bind future Boards to a particular salary level absent statutory authorization.
If you are at the State Auditor's office
Watch for retroactive payments to public officials. Most are barred by § 96. The administrative-error exception is genuinely narrow and requires specific documentation that the increase was mandatory.
If you are a public employee in Mississippi who didn't get a discretionary raise
You don't have a legal claim for it. Mississippi treats discretionary raises as squarely within agency discretion; not getting one doesn't give rise to a § 96 administrative-error claim.
Common questions
Q: What is § 96 of the Mississippi Constitution?
A: A constitutional provision prohibiting the Legislature (and by extension counties and municipalities) from granting extra compensation, fees, or allowances to public officers after services have been rendered. Predates statehood-era abuses where lawmakers retroactively raised their own pay or that of allies.
Q: What's the "administrative error" exception?
A: It allows retroactive payment of compensation that was mandatorily required but not paid due to oversight. Examples: a statutory salary increase keyed to a date that wasn't implemented; a mandatory longevity step that was missed in payroll. Discretionary increases that weren't given do not qualify.
Q: Why doesn't the 2000 resolution help here?
A: Because the resolution applied to fiscal year 2000-2001 and did not commit successor Boards. Mississippi law generally doesn't allow boards to contractually bind successor boards on salary matters. The 2000 resolution was advisory or applicable only to its specific year.
Q: What does § 9-9-11 say about County Court Judge salaries?
A: Multiple subsections, with different rules:
- (1): General rule, up to $1,000 less than circuit/chancery judges, in board discretion.
- (4)(c): Specific to certain Class 1 counties (population threshold met, Highway 61/Mississippi 6 intersection, full-time judge), 90% of circuit/chancery salary on a graduated schedule.
- (7): Notwithstanding other subsections, board may pay $1,000 less than circuit court judge salary, full-time position.
Q: Could the Board have raised the Judge's salary in 2021?
A: Yes, by resolution within the applicable subsection's range. But it didn't, and the Constitution doesn't allow that decision to be revisited retroactively.
Q: Can the Board raise the Judge's salary now (going forward)?
A: Yes, prospectively. The Board can set the salary at any level allowed by § 9-9-11 going forward. The bar is on retroactive increases, not on prospective ones.
Q: Can the Judge sue for the back pay?
A: A suit would face the § 96 constitutional bar. Unless the Judge can establish an administrative error (which the AG opinion suggests is not the case here), the suit would likely fail.
Q: What about pay equity arguments?
A: § 96 is a constitutional rule, not an equity rule. Even if it seems unfair that the Judge stayed at $135,000 while peers jumped to $149,000, the constitutional bar still applies absent the administrative-error exception. Mississippi courts have consistently enforced § 96 in this manner.
Background and statutory framework
Mississippi's Constitution at § 96 contains an unusual extra-compensation prohibition:
The Legislature shall never grant extra compensation, fee, or allowance, to any public officer, agent, servant, or contractor, after service rendered or contract made, nor authorize payment, or part payment, of any claim under any contract not authorized by law; but appropriations may be made for expenditures in repelling invasion, preventing or suppressing insurrections.
The Mississippi Supreme Court in Golding v. Salter, 234 Miss. 567, 107 So. 2d 348, 356 (1958), extended this constitutional limit to counties and municipalities.
The narrow administrative-error exception, articulated in Mosley (Feb. 22, 2014) and many other AG opinions, requires:
- The compensation was mandatorily required.
- The compensation was not paid.
- The non-payment was an administrative oversight, not a discretionary choice.
The Coahoma County situation doesn't fit. The Board had multiple options under § 9-9-11 for setting the Judge's salary. None of them was mandatorily set at the higher level the Judge later sought. The Board chose to leave the salary at $135,000. That's discretion, not error.
The opinion is also notable for confirming that boards cannot contractually bind successor boards on salary matters absent statutory authorization. The 2000 resolution applied to its specific year. Each subsequent year required a fresh act by the then-current Board.
The Coahoma County Class 1 status (population over 39,000 in 1970, U.S. 61/Miss 6 intersection) puts the County in subsection (4)(c)'s special category, which allows up to 90% of circuit/chancery salary on a graduated schedule. The Board could have used that authority. It chose not to. That decision is now locked in for 2021, even if the current Board would prefer a different outcome.
Citations and references
Constitution:
- Miss. Const. § 96 (no extra compensation after services rendered)
Statutes:
- Miss. Code Ann. § 9-9-11(1) (county court judge salary general rule, up to $1,000 less than circuit/chancery)
- Miss. Code Ann. § 9-9-11(4)(c) (specific Class 1 county configuration, 90% of circuit/chancery on graduated schedule)
- Miss. Code Ann. § 9-9-11(7) (alternative authority, $1,000 less than circuit court judge)
- Miss. Code Ann. § 25-3-35 (circuit and chancery judge salaries)
Cases:
- Golding v. Salter, 234 Miss. 567, 107 So. 2d 348 (1958) (§ 96 applies to counties and municipalities)
Source
- Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
- Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/11/T.RossJr.-November-28-2023-County-Court-Judge-Salary.pdf
Original opinion text
November 28, 2023
Tom T. Ross, Jr., Esq.
Attorney, Coahoma County
Post Office Box 579
Clarksdale, Mississippi 38614
Re: County Court Judge Salary
Dear Mr. Ross:
The Office of the Attorney General has received your request for an official opinion.
Background
According to your request, on February 7, 2000, the Coahoma County Board of Supervisors ("Board") passed a resolution declaring that beginning with fiscal year 2000-2001, the salary of the Coahoma County Court Judge ("County Court Judge") would be set at a rate of $1,000.00 less than that provided by statute for circuit and chancery judges for the state of Mississippi. Since that time the County Court Judge was paid a salary of $1,000.00 less than that provided by statute for circuit and chancery judges for the state of Mississippi. For the 2020-2021 budget year, the Board adopted a budget setting the County Court Judge's salary at $135,000.00. Effective January 1, 2021, the salary for circuit and chancery judges increased from $136,000.00 per year to $149,000.00 per year as required by Mississippi Code Annotated Section 25-3-35. However, the County Court Judge's salary remained at $135,000.00. The County Court Judge has requested that the Board pay him an amount that would be the difference between the salary he was paid in 2021 ($135,000.00) and the amount due with the increased chancery and circuit judges' salary of $149,000.00.
Question Presented
Since Section 9-9-11 gives the Board discretion over the amount of salary the County Court Judge is paid, if the Board now wishes to pay the increased salary, does the current Board have the discretion to retroactively pay the disputed amount for the year 2021?
Brief Response
As long as the salary meets the statutory minimum of the applicable subsection of Section 9-9-11, the Board may not retroactively increase the salary of the County Court Judge. To do so would be a violation of Section 96 of the Mississippi Constitution, which prohibits extra compensation after services were rendered.
Applicable Law and Discussion
As an initial matter, Section 9-9-11(1), which you cite in your request, provides:
Except as otherwise provided in subsections (2), (3) and (4), the county court judge shall receive an annual salary payable monthly out of the county treasury in an amount not to exceed One Thousand Dollars ($1,000.00) less than the salary which is now or shall hereafter be provided for circuit and chancery judges of this state, in the discretion of the board of supervisors of said county . . . .
(emphasis added.) However, we understand from the information provided with your request that Coahoma County fits the description in Section 9-9-11(4)(c), which provides:
The office of county judge in any such Class 1 county with a population according to the 1970 federal decennial census of greater than thirty-nine thousand (39,000), and where U.S. Highway 61 and Mississippi Highway 6 intersect, shall receive an annual salary to be paid in monthly installments of not less than an amount equal to ninety percent (90%) of the annual salary which is now or shall hereafter be provided for circuit and chancery judges of the state, as follows: The salary of the county judge shall be increased by ten percent (10%) annually above the base salary of the preceding year until such time as the judge's salary is equal to the amount that is provided by this subsection. The office of county judge shall be a full-time position and the holder thereof shall not otherwise engage in the practice of law.
(emphasis added.) Section 9-9-11(7) must also be considered:
Notwithstanding any provision of this section to the contrary, the board of supervisors of any county, in its discretion, may pay its county court judge an annual salary of One Thousand Dollars ($1,000.00) less than that paid to a circuit court judge. The office of county judge shall be a full-time position, and the holder thereof shall not otherwise engage in the practice of law.
(emphasis added.) Thus, assuming that Subsection (4)(c) does in fact describe Coahoma County, the Board has the discretion to set the County Court Judge's salary in accordance with either Subsection (4)(c) or Subsection (7).
Section 96 of the Mississippi Constitution, which is relevant to your question, reads as follows:
The Legislature shall never grant extra compensation, fee, or allowance, to any public officer, agent, servant, or contractor, after service rendered or contract made, nor authorize payment, or part payment, of any claim under any contract not authorized by law; but appropriations may be made for expenditures in repelling invasion, preventing or suppressing insurrections.
This constitutional prohibition also applies to counties and municipalities. Golding v. Salter, 234 Miss. 567, 107 So. 2d 348, 356 (1958). This office has consistently opined that Section 96 of the Mississippi Constitution "strictly forbids payment of retroactive salary increases to any public employee unless such payment is clearly shown to be back pay previously due but unpaid because of administrative error." MS AG Op., Mosley at 1 (Feb. 22, 2014) (internal citations omitted). We have distinguished between "a discretionary raise that the agency could have given but, in fact did not give to the employee" and a raise mandated by statute, rule, or regulation. Id. at 2. Further, an "administrative error occurs where compensation should have been mandatorily increased but the increased compensation was not paid due to oversight." Id. (internal citations omitted). Your request suggests that the resolution passed in 2000 to set the County Court Judge's salary at a rate of $1,000.00 less than the salary for circuit and chancery judges warrants the raise in 2021. However, the resolution appears to be specific to the salary for fiscal year 2000-2001. Further, a board cannot bind a successor board to a contract unless statutorily authorized. As we understand from the facts provided with your request, the Board had the discretion to increase the County Court Judge's salary in 2021 but did not in fact do so. To retroactively increase the salary of the County Court Judge that already met the statutory minimum would be extra compensation after services were rendered, which is prohibited by Section 96 of the Mississippi Constitution.
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