Mississippi Advisory Opinions January 28, 2016: AGO 2016-00013 (January 28, 2016)

Advisory Opinion Text

AUTH: Phil Carter

RQNM: Katie Bryant Snell

SUBJ: Supervisors - Authority

SBCD: 220

TEXT: Katie Bryant Snell, Esquire

Attorney for Madison County Board of Supervisors

Post Office Box 608

Canton, Mississippi 39046

Re: Madison County Election Contest

Dear Ms. Snell:

Attorney General Jim Hood received your letter of request and assigned it to me for research and reply.

Facts

Your letter states, in part:

The Madison County Election Commission is currently named as a defendant in an election contest case. The Commission hired and the Madison County Board of Supervisors approved an attorney to represent the Commission, pursuant to Miss. Code Ann. Section 23-15-219, which provides as follows:

The board of election commissioners is hereby authorized and empowered to employ and set or determine the duties and determine the compensation of ... legal counsel ... who or which said board or a majority thereof may deem necessary to enable them to discharge the duties and obligations presently or hereafter vested in them. However, before employing such persons or setting or determining said compensation, the election commissioners must first have the approval of the board of supervisors of the county.

This statute specifically authorizes a board of election commissioners to hire legal counsel to assist them in the discharge of their duties and obligations. It does not provide for the hiring of counsel to defend the election commissioners in civil litigation. However, Miss. Code Ann. Section 19-3-47(1)(b) authorizes county boards of supervisors, in their discretion, “to employ counsel in all civil cases in which the county is interested ...”. The Attorney General has opined on a number of occasions that a county’s interest in avoiding a special election is one such instance in which counsel may be employed by a board of supervisors. See, e.g. MS AG Op., Phillips (January 30, 2008) (authorizing employment of counsel to represent winning candidate where county has an interest in avoiding a special election).

In MS AG Op., Price (December 16, 1985), your office found that “the county board of supervisors must either approve the employment of legal counsel by the county election commission pursuant to Section [23-15-219 (1)], supra or make the proper factual determinations concerning a particular case and employ counsel to represent the interests of the county pursuant to Section 19-3-47(b), supra .”

Questions and Responses

We preface our responses to your questions by noting that Section 23-15-219 authorizes the county board of election commissioners to “set or determine the duties of and determine the compensation of such ... legal counsel ... who or which said board or a majority thereof may deem necessary to enable them to discharge the duties and obligations presently or hereafter vested in them.” We are of the opinion that this statutory language is sufficiently broad to allow election commissioners in the employment process to determine that one of the duties of its legal counsel is to represent them in litigation.

Question 1: If the Board of Supervisors makes the proper factual determinations concerning the county’s interest in the pending litigation against the election commissioners, may they hire counsel to represent the election commission in that litigation under Section 19-3-47(1)(b) if an attorney has already been hired and approved under Section 23-15-219(1)?

Response : If, pursuant to Section 23-15-219, the Madison County Election Commission employs legal counsel and determines that one of the duties of said counsel is to represent the Commission in litigation and that employment is approved by the Board of Supervisors, that counsel would be the appropriate counsel to represent the Commission in litigation to which it is a party.

However, we are of the opinion that if the Board of Supervisors makes the determination, consistent with the facts, that the County has an interest in pending litigation, it may, pursuant to Section 19-3-47, employ its own counsel to seek to intervene in said litigation in order to protect the county’s interest.

Question 2: If so, after the board finds there to be a county interest in the litigation, may the board then direct the attorney hired under Section 23-15-219(1) to withdraw as counsel for the election commission in the election contest case?

Response : No. Only a court of competent jurisdiction can approve the withdrawal of counsel.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

Phil Carter, Special Assistant Attorney General