Mississippi Advisory Opinions October 17, 1977: 1977-0009 (October 17, 1977)

Advisory Opinion Text

Mr. Larry J. Bennett

Mayor

City of Bay St. Louis

Post Office Box 310

Bay St. Louis, Mississippi 39520

Re: Municipalities—Mayor/Council Form of Government

Dear Mayor Bennett:

Attorney General Summer has received your letter of September 28, 1977 and assigned it to me for research and reply, your letter stating in essence:

“Pursuant to our recent conversation with your deputies, we would like to receive your considered written opinion on the following questions:

“1) Who has administrative authority (the power to hire and fire) over the person of the City Clerk and his deputies?

“2) Does the City Clerk have any statutory responsibility for the following functions of city government:

a) tax assessment

b) tax collection

c) zoning administration and enforcement

d) delinquent tax notification and sale

e) payroll

f) elections

g) the treasury

h) the records of the city

“3) Does the attached organization chart reflect the spirit and the letter of the law.”

I think it will be helpful at this point to run down what appear to be the pertinent statutes (all being sections of the Mississippi Code of 1972):

Section 21–8–7(1) “Each municipality operating under the Mayor–Council form of government shall be governed by an elected Council and elected Mayor.”

Section 21–8–7(6) “... clerical work of Councilmen in the performance of the duties of their office shall be performed by municipal employees or at municipal expense....”

Section 21–8–9 “The legislative power of the municipality shall be exercised by the municipal council, except as may be otherwise provided by general law.”

Section 21–8–13(1) “The Council shall appoint a city clerk who shall serve as clerk of the council, keep the minutes and records of its proceedings, maintain and compile its ordinances and resolutions as this chapter requires, and perform such function as may be required by law.”

Section 21–8–13(3) “... the Council shall have power by ordinance to revise, repeal or change said appropriations and to make additional appropriations.” (If at the beginning of the first term of the first Council appropriations have already been made.)

Section 21–8–15 “The executive power of the municipality shall be exercised by the mayor.”

Section 21–8–17 “The mayor shall enforce the Charter and ordinances of the municipality and all general laws applicable thereto.... shall supervise all the departments of the municipal government....”

Section 21–8–3(1) “The municipality may have a department of administration and such other departments as the Council may establish by ordinance. All of the administrative functions, powers and duties of the municipality other than those vested in the office of the municipal clerk shall be allocated and assigned among and within such departments.”

Section 21–8–3(2) “Each department shall be headed by a director, who shall be appointed by the mayor and confirmed (by) a majority of the council present and voting.”

Section 21–8–3(3) “The mayor may, at his discretion, remove the director of any department.”

Section 21–8–3(4) “Directors.... shall appoint subordinate officers and employees within their respective departments and may, with the approval of the mayor, remove, subject to any civil service requirement,—(but by ordinance the council can give all of its—hiring and firing—to the mayor).

Section 21–8–27 “The members of the council ... shall not direct or dictate the appointment of any person to or his removal from office of the mayor or any department director (and) shall deal with the ... department .... and personnel solely through the mayor and no member of the council shall give orders to any subordinate of the municipality.”

Not repealed by inference or otherwise were the following general statutes relating to the clerk:

Section 21–15–17 and 19 detail certain of the clerk's duties which dovetail with Section 21–8–13.

Section 21–15–21 makes the Clerk the auditor of the municipality and record keeper there detailed.

Section 21–15–25 allows “the governing authorities” to appoint the municipal attorney.

Section 21–39–7 in municipalities having a population of more than two thousand, according to the latest census (and optional with smaller communities) assigns to the Clerk the duty to keep a “docket of claims” and then details the duties related to handling of claims.

Section 21–33–9 et seq. generally relates other duties having to do with the assessor and clerk. Also, see Section 21–35–11 and 13, supra, in the Municipal Budget Chapter.

I will respond to your point-blank questions answering them as they are stated by you:

(1) Q. “Who has administrative authority (the power to hire and fire) over the person of the City Clerk and his deputies?” A. Section 21–8–13 states that the “Council shall appoint a City Clerk.” It follows that the right to hire would carry with it the right to discharge so that the Council would have to be continually satisfied with the performance of the Clerk's duties. The City Clerk being, therefore, directly answerable to the Council, the Council would have the “administrative authority” over the Clerk and his deputy or deputies (as the deputy or deputies would be carrying out the delegated duties of the Clerk himself.)

(2) Q. Does the City Clerk have any statutory responsibility for the following functions of city government:

A. Generally in response to your subdivisions “a” through “e”, under the Code Charter Chapter (Section 21–3–3) the governing authorities shall have the power, by ordinance, to combine the office of Clerk (or marshall) with the office of the tax collector and/or tax assessor.” The mayor/council chapter did not repeal by implication other Code sections affecting generally municipalities. If the office of Clerk and Tax Assessor and/or collector were combined, the individual performing the Clerk's duties would also have the clerical duties of tax assessment and tax collection. However, the substantive responsibility for the assessment procedure must be assumed by the governing authorities. If taxes were not promptly paid, then the governing authorities would have to pass the appropriate authorization and direction to sell the property for its tax delinquency which includes delinquent tax notification and sale. The clerk can lean heavily on the City Attorney to help him meet the legal requisites for tax sales, after which the same feature can be parallelled year after year.

Zoning administration and enforcement is beyond the normal scope of a City Clerk unless the governing authorities designate responsibilities in this area. The council itself is the authority to administer and make the final decision on zoning. If zoning regulations are violated, legal proceedings and procedures will be required. As far as the routine processing of requests for building permits, for zoning variations, etc. the Clerk would be the normal filing clerk. Zoning is a delegable responsibility of the governing authorities, which allows them to set up a zoning commission as part of the zoning laws.

The Clerk is the voting registrar as an arm of the Executive Committee or Committees and of the Election Commission. The Clerk's statutory responsibility for the functions of (g) the Treasury and (h) the records of the City are as set out above. But remember that the Council has the right to spell out duties additional to the general duties of a City Clerk consistent with controlling statutes.

(3) Q. “Does the attached organization chart reflect the spirit and the letter of the law?” A. I have two attached organizational charts one of which having been left with me earlier. Whether either follows the spirit and the letter of the law depends on who sets up the machinery. As it appears from the statutes the Council has primary organizational authority except that, as above set out, the Clerk by statute has certain financial duties and responsibilities which the Council has no authority to change. See also Section 21–17–15, supra, limiting establishment of a “fiscal or financial department” to cities having a population of not less than 75,000 (last federal decennial census). You need to note, too, the clerk is the Clerk of the entire City, not just of the Council.

I realize that if a deputy clerk were, for example, also the receptionist there could be a possible conflict if the Council wanted to fire and the Mayor didn't or vice versa.

You asked some rather intricate questions which have required rather intricate answers and I hope that the above will be of some help to you.

Thanking you for giving this office the opportunity to be of service to you, I remain

Your very truly,

A.F. Summer Attorney General.