If a Mississippi city's alderman is sued and the city's insurer already provided counsel, can the city pay for separate, independent legal representation for the alderman?

Plain-English summary

Indianola's former city clerk filed a lawsuit naming the City, the Mayor, and one Alderman, in both their official and individual capacities. The City's insurance carrier hired counsel to represent the City and the named officials. But the Alderman wanted separate, independent legal counsel, paid for by the City. Could the Board of Aldermen authorize that?

Yes, said the AG, in the Board's discretion.

§ 25-1-47(1) gives Mississippi municipalities authority to "investigate and provide legal counsel for the defense of any claim, demand, or action, whether civil or criminal, made or brought against any . . . municipal officer, agent, servant, employee, or appointee as a result of his actions while acting in the capacity of such officer, agent, servant, employee, or appointee." The same provision authorizes paying "all costs and expenses incident to such investigation and defense."

The AG specifically rejected any argument that having insurance-carrier counsel rules out hiring additional counsel. Citing prior MS AG Op., Shepard (Feb. 3, 1993): "The fact that the city participates in the Municipal Association liability plan does not prohibit the city from hiring additional counsel pursuant to the above statute." So overlap with insurance counsel is not a bar.

But the Board has to do two things first:

1. Make a finding that the alderman was acting in his or her official capacity when the conduct giving rise to the suit occurred. This is a factual determination, subject to judicial review. If the conduct was outside official capacity (a personal grievance, a private business matter), the city can't authorize independent counsel under § 25-1-47.

2. Grant prior approval of the representation. Per MS AG Op., Brock (Dec. 1, 2014), the Board has to vote on the representation in advance. The Board can't ratify after the fact.

Practical bottom line: the City has the legal authority to provide independent counsel for the alderman, but it must do so deliberately, with a documented finding and a Board vote.

What this means for you

If you are a Mississippi alderman or city council member named in litigation

The opinion holds that the city "in its discretion, may hire additional legal counsel to represent the alderman in accordance with Section 25-1-47(1) and pay the costs and expenses incident to the same," provided the governing authorities determine the alderman was "in fact acting in his or her official capacity" and grant prior approval.

If you are a city attorney or on a Board of Aldermen

The opinion states two conditions before proceeding under § 25-1-47: the governing authorities must (1) find, "consistent with fact and subject to judicial review," that the conduct arose while the official was acting in the capacity of the office, and (2) "grant approval of such representation" in advance (citing the Brock opinion). It does not impose any cost-management or scope requirements beyond the statute.

If you are an insurance carrier providing defense to a municipality

The opinion holds that § 25-1-47(1) "does not prohibit the City from providing additional legal counsel, paid for by the City, where the City's insurer is already providing legal representation," quoting the Shepard opinion that participation in a liability plan "does not prohibit the city from hiring additional counsel pursuant to the above statute."

Common questions

Q: What is § 25-1-47(1)?
A: A Mississippi statute authorizing state, county, school district, and municipal entities to provide legal counsel and pay defense costs for officers, agents, servants, employees, or appointees sued for actions in their official capacity.

Q: When does the "official capacity" requirement matter?
A: § 25-1-47(1) only authorizes defense for actions taken "while acting in the capacity of such officer." If the conduct was personal (a private dispute, a private business transaction), the statute doesn't authorize public-funded defense. The Board has to make this determination factually.

Q: Does the alderman have to choose between insurance counsel and independent counsel?
A: No. The AG opinion makes clear that § 25-1-47(1) does not prohibit hiring additional counsel where insurance counsel exists. Both teams can defend the alderman, paid through different channels.

Q: Does the Board have to find that the alderman will win the case?
A: No. The opinion ties the authority to whether the conduct arose "while acting in the capacity of such officer," a determination the Board makes "consistent with fact and subject to judicial review." It does not condition the defense on the outcome of the suit.

Q: What if the alderman is sued only individually, not in official capacity?
A: The statute the opinion construes authorizes defense for actions "as a result of his actions while acting in the capacity of such officer." Where the suit names the alderman in both capacities, the opinion frames the official-capacity finding as the predicate for the city-funded defense.

Q: Can the city pay for criminal defense too?
A: The statute the opinion quotes covers "any claim, demand, or action, whether civil or criminal," within the governing authorities' discretion and subject to the same official-capacity predicate.

Background and statutory framework

§ 25-1-47(1) is Mississippi's umbrella statute authorizing public-funded defense of public officials:

Any municipality of the State of Mississippi is hereby authorized and empowered, within the discretion of its governing authorities, to investigate and provide legal counsel for the defense of any claim, demand, or action, whether civil or criminal, made or brought against any state, county, school district, or municipal officer, agent, servant, employee, or appointee as a result of his actions while acting in the capacity of such officer, agent, servant, employee, or appointee; and such municipality is hereby authorized to pay for all costs and expenses incident to such investigation and defense.

The provision authorizes (but does not require) defense. The municipality has discretion to provide or decline defense, subject to the official-capacity requirement.

The two procedural prerequisites established by AG opinions:

1. Official-capacity finding (e.g., MS AG Op., Shepard, Feb. 3, 1993): The Board must find that the alleged conduct was within official capacity. This is a factual determination subject to judicial review.

2. Prior Board approval (MS AG Op., Brock, Dec. 1, 2014): The representation must be approved in advance by the governing authorities, not ratified afterward.

The interplay with insurance is also settled. Shepard dealt with the same configuration: insurance counsel already engaged, city wanted to add additional counsel for individual officials. The AG's answer then and now: insurance and § 25-1-47 are independent authorities, and a municipality can use both simultaneously.

The opinion is also notable for what it doesn't address. The factual question of whether the alderman was acting in official capacity is left to the Board. The AG only confirms the legal availability of the defense option.

Citations and references

Statutes:

• Miss. Code Ann. § 25-1-47(1) (municipal authority to provide and pay for defense of officers acting in official capacity)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2024/03/K.Merchant-February-28-2024-Independent-Legal-Representation-for-Alderman.pdf

Original opinion text

February 28, 2024

Kimberly Jones Merchant, Esq.
Attorney, City of Indianola
549 S. Washington Avenue
Greenville, Mississippi 38701

Re: Independent Legal Representation for Alderman

Dear Ms. Merchant:

The Office of the Attorney General has received your request for an official opinion.

Background

According to your request, the city of Indianola ("City") is facing a lawsuit initiated by its former city clerk. The mayor and an alderman have also been named as defendants in the lawsuit, both in their official capacities as well as individually. Upon receiving notice of the claim, the City's insurance carrier engaged legal representation on behalf of the City, the mayor, and the alderman. Although matters are currently being handled by counsel retained by the City's insurance carrier, the alderman has expressed a desire to secure independent legal representation at the City's expense.

Questions Presented

1. Does the Board of Aldermen for the City have the authority to approve the retention of independent legal counsel for the alderman?

2. If the answer to question one is yes, is it legally permissible for the City to cover the cost of such independent counsel?

Brief Response

1. Mississippi Code Annotated Section 25-1-47(1) provides municipalities with the authority and power, within their discretion, to "provide legal counsel for the defense of any claim, demand, or action, whether civil or criminal, made or brought against any . . . municipal officer, agent, servant, employee, or appointee as a result of his actions while acting in the capacity of such officer, agent, servant, employee, or appointee."

2. Municipalities are likewise authorized "to pay for all costs and expenses incident to such investigation and defense" permitted by Section 25-1-47(1). Miss. Code Ann. § 25-1-47(1).

Applicable Law and Discussion

To begin, we note that while this request stems from ongoing litigation, the questions presented are not subject to said litigation.

Section 25-1-47(1) provides:

Any municipality of the State of Mississippi is hereby authorized and empowered, within the discretion of its governing authorities, to investigate and provide legal counsel for the defense of any claim, demand, or action, whether civil or criminal, made or brought against any state, county, school district, or municipal officer, agent, servant, employee, or appointee as a result of his actions while acting in the capacity of such officer, agent, servant, employee, or appointee; and such municipality is hereby authorized to pay for all costs and expenses incident to such investigation and defense.

(emphasis added). Notably, Section 25-1-47(1) does not prohibit the City from providing additional legal counsel, paid for by the City, where the City's insurer is already providing legal representation. Indeed, expounding upon Section 25-1-47(1) in regard to a similar factual scenario, this office has previously opined:

If the governing authorities of the City of Lucedale find, consistent with fact and subject to judicial review, that the above civil action arose out of actions of the mayor, chief of police and director of public works while acting in the capacity of their offices or positions, then the municipal governing authorities may in their discretion hire additional attorneys to defend the mayor, chief of police and director of public works. The fact that the city participates in the Municipal Association liability plan does not prohibit the city from hiring additional counsel pursuant to the above statute to defend the mayor, chief of police and director of public works.

MS AG Op., Shepard at 1 (Feb. 3, 1993). Still, "prior to proceeding under Section 25-1-47, the City, via its governing authorities, must grant approval of such representation." MS AG Op., Brock at 2 (Dec. 1, 2014). Presuming these requirements are met, Section 25-1-47(1) likewise authorizes the City to "pay for all costs and expenses incident to such investigation and defense." See also MS AG Op., Brock at *2. In sum, it is the opinion of this office that the City, in its discretion, may hire additional legal counsel to represent the alderman in accordance with Section 25-1-47(1) and pay the costs and expenses incident to the same, if the City's governing authorities determine that the alderman was in fact acting in his or her official capacity, and the governing authorities grant prior approval of such representation.

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/ Maggie Kate Bobo
Maggie Kate Bobo
Special Assistant Attorney General