Mississippi Advisory Opinions December 18, 1991: 19911218 (December 18, 1991)

Advisory Opinion Text

Everett T. Sanders, Esquire

Attorney for Claiborne County Board of Education

Post Office Box 565

Natchez, Mississippi 39121

Dear Mr. Sanders:

Attorney General Mike Moore has received your letter of request and has assigned it to me for research and reply. Your letter states:

“Please be advised that I have been requested to write to solicit an opinion from you regarding the following matter:

‘The incumbent Superintendent of Education was recently re-elected in the November 5, 1991 General Election. One of his opponents has challenged the election results and has alleged certain irregularities.’

The question presented is, whether or not the County Board of Education pursuant to § 25-1-47 of the MS Code (1972) Ann. or any other statute, can pay for the legal fees incurred by the Superintendent of Education in defending this election contest.”

Mississippi Code Annotated § 25-1-47(1) (Revised 1991) 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 ours)

A contest of the election of an incumbent superintendent of education is not a action against said official acting in his official capacity. Therefore, it is the opinion of this office that the county board of education would not have the authority to pay the legal fees incurred by the Superintendent of Education in defending the contest.

For your information we are enclosing a copy of an opinion addressed to James W. Burgoon, Jr., Esquire, dated November 12, 1991. In summary that opinion states that Section 19-3-47(1)(b) bestows discretionary authority upon county boards of supervisors to employ legal counsel in civil cases in which the county is interested.

Sincerely,

Mike Moore, Attorney General.

Phil Carter, Special Assistant Attorney General.

ATTACHMENT

APPENDIX

November 12, 1991

James W. Burgoon, Jr., Esquire

Attorney for Leflore County Board of Supervisors

Post Office Drawer 1640

Greenwood, Mississippi 38930-1640

Dear Mr. Burgoon:

Attorney General Mike Moore has received your letter of request and has assigned it to me for research and reply. Your letter states:

“The Board of Supervisors of Leflore County, Mississippi, instructed me to request a written opinion from the Attorney General regarding the following:

On October 7, 1991, being the day prior to the second primary, the chairperson of the Republican Executive Committee and the chairperson of the Democratic Executive Committee joined with a candidate for the office of Circuit Clerk and filed suit in the Chancery Court of Leflore County against the Circuit Clerk alleging fraud and irregularities in the handling of absentee ballots and obtained a Temporary Restraining Order without notice whereby all absentee ballots were seized from the Circuit Clerk and Registrar and placed into the possession of the two executive committees.

On October 21, 1991, the Circuit Clerk instituted suit in the United States District Court for the Northern District of Mississippi against both the Republican and Democratic Executive Committees and their respective chairpersons alleging, among other things, voting irregularities and challenging the election of the candidate certified by the respective executive committee. On said date, the Circuit Clerk also filed with the Democratic Executive Committee a complaint contesting the makeup of the respective executive committees and questions the authorization for their respective chairpersons to file the suit in Chancery Court seeking the restraining order.

Thereafter, the two executive committees and their respective chairpersons requested the Board of Supervisors to financially underwrite the legal representation of the committees and their chairpersons in defending the suit. Please advise whether public funds may legally be utilized to provide legal representation to the county executive committees of the Democratic and Republican parties and their chairpersons where it is alleged that the respective committees were not properly or legally constituted and that their respective chairpersons were not authorized by their committees to file suit against the Circuit Clerk and Registrar.

If in fact public funds can be utilized to provide representation for the Republican and Democratic Executive Committees on the basis that the committee members are acting as quasi-public officials in conducting primary elections, are not these quasi-public officials entitled to representation by the State's Attorney General?”

Mississippi Code Annotated § 19-3-47 1(b) (Supp.1991) provides in part:

“The board of supervisors shall have the power, in its discretion, to employ counsel in all civil cases in which the county is interested, ....”

In response to your first question, the above quoted statute bestows discretionary authority upon county boards of supervisors to employ legal counsel in civil cases in which the county is interested. Therefore, upon a finding of fact that the county has an interest in a particular case, the board of supervisors would be authorized to employ legal counsel to represent the county and that interest. It does not authorize the county to financially underwrite legal representation of the political parties and their partisan concerns. Although political parties are certainly regulated by state law the party executive committees are essentially partisan organizations, not public officials.

In response to your second question, while the Attorney General is required to represent the State and State Officials and does act in matters of statewide concern (See MCA § 7-5-39) we find nothing that entitles local party executive committees and/or their members to such representation. The matter you present does not appear to present an issue of statewide concern.

Sincerely,

Mike Moore, ATTORNEY GENERAL

Phil Carter, Special Assistant Attorney General