Mississippi Advisory Opinions January 30, 2008: No. 2008-00695 (January 30, 2008)
Collection: Mississippi Attorney General Opinions
Docket: No. 2008-00695
Date: Jan. 30, 2008
Advisory Opinion Text
No. 2008-00695.
2008-00695
Dear Mr. Phillips,
Attorney General Jim Hood has received your opinion request on behalf of the attorney for the Washington County Board of Supervisors and has assigned it to me for research and reply.
INQUIRY
May Washington County, upon a finding that the county has an interest in the election contest against the winning candidates for election commissioners, provide and pay for legal counsel to defend the litigation against them in their individual capacities?
RESPONSE
Yes, in accordance with Section 19-3-47(b), based upon the finding by the Board of Supervisors that the Board has an interest in the litigation, namely, that the election contest challenges certain acts of the board of supervisors acting as the election commission, and further, since the county has an interest in avoiding a special election.
BACKGROUND
You explain that the Board of Supervisors, acting as Election Commissioners, certified Jennifer Jackson and Billy Gist as candidates for the office of election commissioner in the last election. Prior to doing so, the Board learned that Jackson and Gist had filed their petitions to qualify with the circuit clerk rather than the chancery clerk, as required by Mississippi Code Section 23-15-213. You explain that the basis for doing so was that the Board learned that this had been common practice for years. Jackson and Gist won their respective elections, and on November 24, 2008, lawsuits in the form of election contests were filed against each in their individual capacities by the losing candidates. The lawsuits were filed in the Circuit Court of Washington County. Jackson and Gist have requested the Washington County Board of Supervisors to provide them with legal counsel to defend them in the subject litigation. In response, the Board of Supervisors made a finding that the County has an interest in the litigation, insomuch as the Board of Supervisors, as the Election Commission, had certified both Jackson and Gist as candidates, and the County has an interest in avoiding a special election.
ANALYSIS
Mississippi Code Section 19-3-47(b) grants to the board of supervisors the authority to hire legal counsel "in all civil cases in which the county is interested..." We have opined that, where the board of supervisors makes a determination, consistent with fact, that the county has an interest in certain litigation, the county would be authorized to retain and pay for legal counsel to defend that litigation. See generally, MS AG Op., Ferguson (February 5, 1996). We have applied this principle to defending persons in election contests. In MS AG Op., Ellis (July 14, 1993), we stated:
We have previously opined that a county board of supervisors may approve the payment of legal fees for the purpose of protecting the county's interest in seeing that the validity of elections are upheld in order to avoid the expense involved in conducting new elections .
The Ellis opinion refers to a 1991 opinion to James Burgoon. MS AG Op., Burgoon (November 12, 1991). In that opinion, the requestor asked whether public funds could be used to provide legal representation to the county Democratic and Republican executive committees and their chairpersons, in litigation alleging that the committees were not legally constituted and that their chairpersons had acted outside of their authority.
See also, MS AG Op., Childs (December 1989)(legal fees of county Democratic executive committee in defending election contest, not authorized because no prior approval); MS AG Op., Price (December 16, 1985) (in employing legal counsel to represent the election commission, the board of supervisors must make proper factual determination concerning particular cases and employ counsel to represent the interests of the county under Section 19-3-47(b)).
CONCLUSION
Therefore, the county board of supervisors could reasonably find that it has an interest in the subject litigation against winning candidates, in that the supervisors, acting as the election commission, is accused of wrongfully qualifying the candidates. Further, the county has an interest in avoiding a special election. Since the board has made that finding already, the board would be authorized, in accordance with Section 19-3-47(b) to employ legal counsel to represent the winning candidates in that litigation.
If this office may be of further assistance to you, please let us know.
Sincerely,
JIM HOOD, ATTORNEY GENERAL
By: Ellen O'Neal
Special Assistant Attorney General