Mississippi Advisory Opinions June 28, 2019: AGO 2019-00166 (June 28, 2019)

Advisory Opinion Text

Gene Barton, Esq.

Attorney

City of Okolona

Post Office Box 147

Okolona, Mississippi 38860-0147

Re: Various Municipal Issues

Dear Mr. Barton:

Attorney General Jim Hood has received your request for reconsideration and has assigned it to me for research and response.

Issues Presented

You submitted correspondence dated May 22, 2019, May 23, 2019 and May 24, 2019 regarding multiple, and, in some instances, unrelated municipal issues. Because of the broad nature of your issues, we have separated your requests into two official opinion responses. This particular opinion is responsive to your issues concerning back-pay issues, the authority of the Mayor to supervise the day-to-day operations of the municipality, the authority of the City Council to participate in the interview process and the handling of potential conflicts between the Mayor and the City Council by the municipal attorney. Due to the complexity and the length of your multiple submissions, we have attached copies for reference.

Response

You provide that the City of Okolona is a private charter municipality. As such, the powers of the municipality flow directly from its charter. Questions concerning the workings of a municipality operating under a private or special charter are answered by reference to the specific provisions of that charter.

The municipality may use funds from its general fund to pay a claim in accordance with Section 25-1-47 of the Mississippi Code. Based on the specific provisions of the private charter of the City of Okolona, the City Clerk and the City Attorney, as Municipal Officers, report to the Mayor, who is the chief executive officer of the City of Okolona. In the proper exercise of his executive powers, the Mayor has full authority to dictate the day-to-day operations of the municipal departments consistent with any properly-adopted orders, resolutions or policy determinations by the City Council. The City Council of the City of Okolona may observe the process of interviewing potential employees, but may not “participate” to the extent that it is exercising executive functions as that is reserved to the Mayor.

Applicable Law and Discussion

With regard to the back-pay issue referenced in your submission(s), you provide in your request(s) that the back-pay matter is in litigation. As you are aware, the authority of this office to issue official opinions is specifically granted to it in Section 7-5-25 of the Mississippi Code. Section 7-5-25 of the Mississippi Code specifically states that “[n]o opinion shall be given or considered if the opinion is given after suit is filed or prosecution begun.” Thus, we are unable to comment on this issue to the extent that it is in litigation. We note, however, that we have previously opined that “a municipality pursuant to Section 25-1-47 may, in its discretion, provide from available funds legal representation for councilmen named defendants in a civil action brought against them in their official capacity.” See MS AG Op., Kemp (November 3, 1987) and MS AG Op., Scales (February 3, 1982). Thus, provided that the municipality is operating under the authority granted to it in Section 25-1-47, it may pay a settled dispute out of its “available funds” which certainly would include the municipality's general fund.

In municipalities, operating under a private charter, the powers of the municipality flow directly from its charter. We have consistently opined that questions concerning the workings of a municipality operating under a private or special charter should be answered by reference to the specific provisions of that charter. MS AG Op., Barton (November 9, 2018); MS AG Op., Carouthers (October 12, 2018); MS AG Op., Gaylor (December 15, 2006); MS AG Op., Lowe (November 3, 2000). In the event that the private charter is silent on a particular matter, general statutory provisions would apply. MS AG Op., Barton (August 16, 2013); MS AG Op., Knight (April 6, 2012); MS AG Op., Barton (June 15, 2012); MS AG Op., Barton (October 19, 2012). As to the powers of the Mayor and the City Council, we look to the specific provisions of the private charter of the City of Okolona.

Upon review of the City of Okolona's private charter, Section 4 provides the following:

Be it further enacted, That the Officers for the government of said City shall consist of a Mayor, Marshal, six Councilmen, Clerk, Assessor, Treasurer, Tax Collector, City Attorney, City Physician and City Engineer, The Clerk may be the Tax Collector if the Mayor and City Council shall so elect.

In addition, Section 7 of the charter states that:

Be it further, enacted, That the Clerk, Assessor, Treasurer, Tax Collector, City Attorney, City Physician and City Engineer shall be elected by the City Council, by ballot, immediately after the organization of said City Council, as hereinafter provided, whose term of office shall be two years ....

Furthermore, Section 26 provides:

Be it further enacted, That the City Council shall have power to make and establish rules and bylaws for its own government; to appoint and regulate the time of its meetings; and manner of being convened in special meetings, and to alter the same at pleasure; and to create such subordinate offices as may be necessary, for such terms and with such regulations, and to be elected as said Council may by ordinance prescribe, A majority of said Council shall constitute a quorum, and the Mayor shall be the ex-officio President and the presiding officer thereof, and shall vote at all elections of officers, and shall give the casting vote when a tie occurs in voting on any question or business matter of said Council. Said Council may delegate the administration of the various affairs of said City to subordinate officers, and committees of its own members with adequate powers.

Lastly, Section 50 provides:

Be it further enacted, That the Mayor shall be the chief executive officer of said City, and the ex-officio President of the City Council, and shall inspect the conduct of subordinate officers, and see that their duties are performed; and shall take care that the ordinances of said City, and the laws of the State, are duly enforced, respected and observed within his jurisdiction as Mayor and Justice of the Peace respectively, and shall from time to time report to the City Council all delinquencies on the part of City Officers, and communicate such information and recommend such measures as he may deem beneficial to the health, security and good order and government of said City.

Based on the above-referenced provisions, we are of the opinion that the City Council is charged with hiring the Municipal Officers of the City of Okolona, including the City Clerk and the City Attorney. For the purposes of hiring such Municipal Officers, the Mayor is a part of the City Council as provided in Section 26 of the private charter. In accordance with Section 50, the Mayor is the chief executive officer of the City of Okolona and exercises the executive functions of the municipality. Furthermore, Section 50 expressly states that the Mayor “shall report to the City Council all delinquencies on the part of the City Officers.” This language suggests a supervisory relationship between the Mayor and the Municipal Officers listed in Section 4. As to the authority of the City Council, Section 27 clearly states that it exercises the legislative powers of the municipality.

When interpreting the provisions of the subject private charter, any assessment of the powers flowing from the private charter must be guided by the principles dictated in the separation of powers doctrine established in Article 1, Sections 1 and 2 of the Mississippi Constitution of 1890. Thus, based on the specific provisions of the private charter, we are of the opinion that the City Clerk and the City Attorney, as Municipal Officers, report to the Mayor, who is the chief executive officer of the City of Okolona. Consistent with the exercise of his executive powers, the Mayor has full authority to dictate the day-to-day operations of the municipal departments. However, the Mayor is bound to exercise his authority and implement municipal policy consistent with duly adopted orders, resolutions and ordinances of the City Council. Any attempt by the City Council to exercise executive functions of the City of Okolona would result in a separation of powers doctrine violation. Therefore, while the City Council of the City of Okolona may observe the process of interviewing potential employees, it may not “participate” to the extent that such participation results in the exercise of an executive function as that is reserved to the Mayor in accordance with the provisions of the City of Okolona's private charter.

Your question regarding how the City Attorney should deal with conflicts between the Mayor and City Council is primarily a question of legal ethics governed by the Mississippi Rules of Professional Conduct. As we mentioned in a telephone conference with you, it is our recommendation that you contact the Office of General Counsel with the Mississippi Bar to discuss your issues. We note for informational purposes that Rule 1.13 of the Rules of Professional Conduct governs an “organization” as a client. You serve as the City Attorney, and ultimately your client is the City. Rule 1.13(a) sets out that in such cases a lawyer “represents the organization acting through its duly authorized constituents.” It is our opinion that with regard to the City of Okolona, the authorized constituents are both the Mayor and City Council. We direct your attention to the Comments to the rule which states that “that constituents of an organizational client are [not] the clients of the lawyer.” Rule 1.13 requires, in dealing with constituents of an organizational client, that the attorney explain to the constituents, the “identity of the client”. After having done so, Rule 1.13 allows an attorney for an organization to represent constituents but subject to the conflicts of interest provisions of Rule 1.7. See M.R.P.C. 1.13(d),(e).

Your question assumes the existence of a conflict between the City Council and Mayor. This situation implicates issues of legal ethics on which the office does not opine. For purposes of your consideration of the ethical issues, we note that this office has repeatedly opined that a “[city] attorney represents the municipality, not one or more of its officers.” MS AG Op., Thomas (July 26, 1989).

If our office may be of further assistance, please advise.

Sincerely,

Jim Hood, Attorney General.

Leigh Triche Janous, Special Assistant Attorney General.

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Notes:

In a prior opinion to you, we concluded that the private charter of the City of Okolona most closely resembles a code charter municipality. See MS AG Op., Barton (August 16, 2013). Thus, in the event that the City of Okolona's private charter is silent on a matter, the provisions of Sections 21-3-1 et seq . would apply.

Naturalty, the Mayor would not exercise supervisory power over the members of the City Council.

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