Mississippi Advisory Opinions December 19, 1989: 19891219 (December 19, 1989)

Advisory Opinion Text

U.S. District Court # EC88–68–B–D

Mr. Thomas E. Childs, Jr., Esquire

Russell & Childs, Attorneys

Post Office Box 1429

Fulton, Mississippi 38842

RE: Request for Attorney General's Opinion

Re: JAMES BALLARD vs. ITAWAMBA COUNTY DEMOCRATIC EXECUTIVE COMMITTEE AND HUBERT COKER

Dear Mr. Childs:

Attorney General Mike Moore is in receipt of your letter of request dated December 7, 1989, and has assigned it to me for reply. In your letter, a copy of which is attached as Exhibit “A”, you inquire if the Itawamba County Board of Supervisors has the authority, by statute or home rule, to pay the legal fees incurred by the Itawamba County Democratic Executive Committee in defending an election contest for Itawamba County Third District Supervisor in the 1987 election.

It initially should be noted that this office has previously opined that while Section 19–3–47, Miss.Code Ann . granted specific statutory authority for a county to provide legal counsel in civil actions in which the county is interested, the Board of Supervisors must have given prior approval for the employment of counsel before counsel may be paid for past services rendered. See: opinion to John W. Whitten, Jr. dated February 5, 1986, a copy of which is attached as Exhibit “B”.

In your letter you point out that “the Itawamba County Board of Supervisors did not previously authorize employment of an attorney by the county political party executive committee or chairman or members thereof.” Accordingly, under this factual situation, it is not necessary for us to first determine if the county has authority, by statute or home rule, to pay the questioned legal fees in order to answer your inquiry.

It, therefore, is the opinion of this office the Itawamba County Board of Supervisors may not pay the legal fees for past services rendered to the Itawamba County Democratic Executive Committee because the Itawamba County Board of Supervisors had not given prior approval for such expenditure.

Yours very truly,

Mike Moore, Attorney General.

State of Mississippi

ATTACHMENT I

December 7, 1989

Honorable Mike Moore

Attorney General

State of Mississippi

P.O. Box 220

Jackson, MS 39205

Dear General Moore:

I serve as attorney for the Itawamba County Board of Supervisors. The Board received a letter from the Chairman of the Itawamba County Democratic Executive Committee, copy attached, requesting the Board to pay legal fees incurred by the Committee and Chairman as parties defendant in an action filed in the United States District Court for the Northern District of Mississippi resulting from an election contest for Itawamba County Third District Supervisor in the 1987 election.

After reviewing the Mississippi Election Code, Mississippi Code Ann.1972, Section 25–15–1 et seq., I could not find any specific statutory authority for the Board of Supervisors to pay legal fees incurred by a county political party executive committee, or chairman or members thereof. Mississippi Code Ann.1972, Section 25–15–219, which provides specific statutory authority for a Board of Supervisors to pay legal fees incurred by a county political party executive committee, or chairman or members thereof. Mississippi Code Ann.1972, Section 25–15–219, to pay legal fees of a county Board of Election Commissioners, provided the statutory procedure therein outlined is followed, would not appear applicable to a county political party executive committee or chairman or members thereof. Moreover, the Itawamba County Board of Supervisors did not previously authorize employment of an attorney by the county political party executive committee or chairman or members thereof.

I have advised the Board of Supervisors that, in my opinion, there is no specific statutory authority that would authorize the requested payment of legal fees and that the Board would not appear to have authority to make the requested payment in the absence of an order to do so by a court of competent jurisdiction, unless of course, “home rule” would provide authority to make the requested payment.

The Board of Supervisors has directed that I request your Official Opinion as to whether the Board has specific statutory authority to make the requested payment and if not, whether “home rule” would provide authority to make the requested payment.

Sincerely, Thomas E. Childs, Jr. ATTORNEY

TAWAMBA COUNTY BOARD OF SUPERVISORS

ATTACHMENT II@@

November 13, 1989

Mr. Danny Holley

President of

Itawamba County Board of

Supervisors

Itawamba County Courthouse

201 W Main Street

Fulton, Mississippi 38843

Dear Mr. Holley:

Please find enclosed a copy of the bill that has been incurred by the Itawamba County Democratic Executive Committee and myself as Chairman of the Itawamba County Democratic Executive Committee and myself individually defending the Federal Lawsuit filed in U.S. District Court by James Ballard.

I would respectfully request that Itawamba County pay the total amount of these charges in the amount of $2085.34 that would include reimbursement of monies already paid in the amount of $950.00.

Very truly yours, Hubert Coker CHAIRMAN ITAWAMBA COUNTY

ATTACHMENT III@@

DEMOCRATIC EXECUTIVE COMMITTEE

September 28, 1989

Mr. Hubert Coker

Itawamba Democratic Party

Route 2, Box 414

Fulton, Mississippi 38843

STATEMENT OF ACCOUNT AND TIME
ATTORNEY'S TIME:	HOURS
04–03–88 Reviewed and read Complaint	0.25
04–04–88 Telephone call to Coker	0.25
04–06–88 Reviewed Complaint and met with Clients	0.50
04–10–88 Conference with Coker/Research	1.50
04–11–88 Conference with Charlie Brett	0.25
04–11–88 Prepared Answer and Defenses/ Letter to Coker/Letter to Smith/Research/Letter to Attorney General	2.50
04–14–88 Reviewed Answers/Mailed Papers	1.00
04–28–88 Conference with Charlie Brett	0.50
04–29–88 Reviewed file/Copy of Answers made for Charlie Brett	0.50
05–16–88 Call to Clerk's Office to verify receipt of file	0.25
07–30–88 Conference with Coker/Research/ Review	1.00
09–15–88 Call to Smith/Review of Deposition	0.25
09–21–88 Conference	0.25
11–26–88 Reviewed file/Prepared Motion for Protective Order	0.50
12–12–88 Conference with Coker/Trip to Fulton/Investigation Conference with Brett	2.50
12–13–88 Call to Judge Davis/Research/ Conference call	0.75
12–14–88 Call to Coker	0.20
12–15–88 Interview witness/Conference with Coker/Appeared at Depositions	6.00
01–05–89 Call to Smith/Trip to Fulton committee meeting	3.25
02–04–89 Reviewed letter	0.25
03–01–89 Drafted Motion for Summary Judgment Conference with Brett	1.00
03–12–89 Research	2.00
03–14–89 Worked on Brief and Motion	2.50
03–15–89 Worked on final draft/Research/ Call to Clerk/Call to Richardson's office/Trip to Brett's office/ Letter to Brett/Trip to Smith's office	2.00
06–19–89 Prepared Pre–Trial Order	1.50
06–21–89 Appeared at Pre–Trial Conference in Aberdeen, Mississippi	5.00
07–04–89 Reviewed Judgment and Decision of Judge Biggers	0.25
07–05–89 Telephone conference with Hubert Coker	0.20
09–12–89 Drafted Answer to Motion for Reconsideration/Supplemental Response/Letter/Motion for Attorneys fee	0.50
09–15–89 Drafted Motion for Sanctions Letter to Judge Biggers	0.20
09–21–89 Reviewed Order signed by Judge Biggers and Reviewed file/ Returned call to Christy Payne of the Daily Journal regarding status of the case	0.40
09–28–89 Phone call to Hubert Coker regarding case	0.10
TOTAL ATTORNEY'S TIME:	38.60
TOTAL EXPENSES:	$333.34

TOTAL AMOUNT DUE ON ACCOUNT:
Attorney's Time @ $70.00 per hour (Total hours to date)	$2, 702.00
Expenses	333.34
Less Amount Received on Account	- 950.00
	2, 085.34
TOTAL AMOUNT DUE ON ACCOUNT:	$2, 085.34