Mississippi Advisory Opinions November 08, 2019: AGO 2019-00348 (November 08, 2019)

Advisory Opinion Text

Mr. T.H. “Butch” Scipper

Chancery Clerk of Quitman County

220 Chestnut Street, Suite 2

Marks, Mississippi 38646

Re: Authority of Board of Supervisors

Dear Mr. Scipper:

Attorney General Jim Hood is in receipt of your opinion request and has assigned it to me for research and reply.

Factual Background

You explain that this supervisor was determined to have utilized county assets on private property by the Department of Audit. The Department demanded repayment to the county for the cost of such actions, but the supervisor refused payment. The Department then demanded payment, and payment was remitted from the supervisor's bonding company. You further explain that the supervisor was reelected into the position on November 3, 2015. Prior to taking his oath of office, the individual procured a bond from Old Republic Surety Company issued by Whitten Insurance Company of Batesville, Mississippi. You state in your letter that an inquiry was made to the Department of Audit about the validity of the bond, and it was determined that it” ... does not strictly comply with the letter of the law in Section 25-1-15. However, it does comply with the spirit of the law. Each of the requirements set forth in Section 25-1-15 are found in the bond, but not necessarily in the correct format. When taken in conjunction with Section 3 of 25-1-15, the bond company should likely still be liable to the State for any misappropriation committed by the individual.” The individual took office on January 4, 2016. You also state that the individual paid the bond cost personally as the County was never billed for the cost of this individual's bond, but on Monday, October 7, 2019, a claim for reimbursement from this individual was made to the Board of Supervisors in an amount of $1,242.00. You explain that the bonds for the other members of the Board of Supervisors cost the County $952.00 each.

Questions Presented and Response

In your letter, you ask several questions surrounding a member of the Quitman County Board of Supervisors, which we will answer seriatim.

1. Whether a member of the Board of Supervisors, who was determined by the Department of Audit to have used county assets on private property, was demanded reimbursement of cost of such actions and refused to pay such cost, can be reelected to the Board of Supervisors or any other public elected office in Mississippi?

Mississippi Code Section 23-15-359 states, in pertinent part:

(1) Except as provided in this section, the ballot shall contain the names of all party nominees certified by the appropriate executive committee, and independent and special election candidates who have timely filed petitions containing the required signatures ...

(9) The appropriate election commission shall determine whether each candidate is a qualified elector of the state, state district, county or county district they seek to serve, and whether each candidate meets all other qualifications to hold the office he is seeking or presents absolute proof that he or she will, subject to no contingencies, meet all qualifications on or before the date of the general or special election at which he or she could be elected to office.

In our opinion to the Honorable Standard dated October 16, 2015, we opined:

In Powe v. Forrest County Election Commission, 163 So.2d 656 (Miss. 1964), the Mississippi Supreme Court considered whether an election commission has the duty and discretion to determine qualifications of party nominees certified to an election commission as candidates for the general election. The Court concluded “it is apparent that the Commission has discretion to determine whether or not the names of a candidate shall be placed upon the ballot.” Powe at 658.

MS AG Op., Standard (October 15, 2015). Whether a candidate meets all qualifications to hold office and be placed on the ballot is a factual question that this office may not answer. This office opines that if your county election commission finds, consistent with the facts, that the individual in question meets all requirements set forth in Section 23-15-359(9), he would be eligible to have his name placed on the ballot for county supervisor and be elected to office. MS AG Op., Farese (February 18, 2011).

2. Is the bond obtained by the individual a valid “public official bond” for a member of the Board of Supervisors or for any other public elected office in the State of Mississippi?

Inasmuch as your request asks for a factual determination of whether the bond that was secured by a member of the board of supervisors is sufficient to meet the requirements of the law, this office is unable to render you an opinion on the matter. Pursuant to Section 7-5-25, the Attorney General is authorized to issue official opinions on questions of law only and cannot by official opinion make factual determinations.

Please note, however, Section 19-3-5 of the Mississippi Code Annotated provides:

Each member of the board of supervisors, before entering upon the duties of his office, shall give bond, with sufficient surety, to be payable, conditioned and approved as provided by law, in a penalty equal to five percent (5%) of the sum of all the state and county taxes shown by the assessment rolls and the levies to have been collectible in the county for the year immediately preceding the commencement of the term of office of said member; however, such bond shall not exceed the amount of One Hundred Thousand Dollars ($100,000.00). Furthermore, any taxpayer of the county may sue on such bond for the use of the county, and such taxpayer shall be liable for all costs in case his suit shall fail. No member of the board shall be surety for any other member.

Section 25-1-19 of the Mississippi Code Annotated provides that the bond of the members of the board of supervisors of the county shall be approved by the chancery clerk of such county. Section 25-1-31 of the Mississippi Code Annotated provides that all bonds required by law of public officers shall be made with a surety company authorized to do business in this state. The determination of whether a member of a board of supervisors has obtained a sufficient bond with a surety company, authorized to do business in this state, is a factual one that must be made by the chancery clerk of the county.

3. Can the County pay a claim made by the supervisor for reimbursement of the bond obtained in late 2015, but not submitted to the Board until October of 2019?

Your request includes, in part, questions of fact which we are unable to answer in an official opinion. However, a board of supervisors has a duty and the authority to pass upon the validity of each and every claim presented for payment. Please note that Section 19-13-23 provides as follows:

Any person having a just claim against any county shall first file the same on or before the last day of the month for which such claim may be payable, with the clerk of the board of supervisors for presentation to the board for allowance, which said claim shall be properly dated and itemized, and shall be accompanied by any evidence of performance or delivery as required by Section 19-13-25. The claimant may amend said claim at any time before final rejection or allowance, and may appear before the board and submit further evidence or argument in support thereof, having a continuance for either or both of said purposes if desired.

The statutory scheme for payments of claims continues with Section 19-13-31:

At each regular meeting of the board, the claims docket shall be called and all claims then on file, not previously rejected or allowed, shall be passed upon in the order in which they are entered upon the docket. All claims found by the board to be illegal, and which cannot be made legal by amendment, shall be rejected or disallowed. All other claims shall be audited, and all those found proper upon due proof shall be allowed in the order in which they appear on the docket ....

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If the board shall reject any such claim in whole or in part, or refuse, when requested at a proper time, to pass finally thereon, the claimant may appeal to the circuit court, or may bring suit against the county on such claim. In either case, if the claimant recovers judgment and notifies the clerk of the board of supervisors, and if no appeal be taken to the Supreme Court, the board shall allow the same, and a warrant shall be issued therefor.

Here, a supervisor has submitted a claim in October of 2019 for reimbursement of his surety bond obtained almost four years ago. The Board of Supervisors must now examine the evidence before it concerning this claim, make findings of fact, and reflect the same in its minutes.

Additionally, the Board must also address whether there is the existence of any applicable statutes of limitation. Section 15-1-49 states the following, in part:

(1) All actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of such action accrued, and not after.

The statute of limitations is an affirmative defense that must be raised by governmental bodies when claims are made against them. MS AG Op., Sanders (October 18, 2013). A claim having accrued almost four years ago would be barred by the statute of limitations. It is the duty of the board of supervisors to assert applicable statute of limitation defenses.

4. Can a supervisor be removed from office for the unlawful use of public equipment on private property and defaulting on his bond?

The question of whether a supervisor may be removed from office is a factual one that this office cannot answer. However, in a previous opinion, we noted several statutes that provide for the removal of a supervisor from office. MS AG Op., Holmes (November 7, 2014). In this opinion, we opined:

Section 25-5-1 provides methods of removing a supervisor from office for convictions of certain felonies or a judicial finding of unsound mind. While corruption in office, which is mentioned in Section 25-5-1, includes a broad range of prohibited behavior, a conviction in a court of competent jurisdiction is required under that Code section.

Pursuant to Section 25-5-3, the Governor has the authority through the procedures and under the regulations prescribed in Sections 25-5-3 through 25-5-37 to remove any elective county officer in this state. The reasons or causes for removal from office are knowingly or wilfully failing, neglecting, or refusing to perform any of the duties required of such officer by law.

Furthermore, a public officer who has neglected his duties may be subject to the penalties outlined in Article 6, Section 175 of the Mississippi Constitution and those provided in Section 97-11-37. MS AG Op., Burnside (April 15, 2011). Whether a public official has neglected his official duties or has violated his official duty in a manner which has resulted in a violation of Section 97-11-37 is a determination to be made by a court of competent jurisdiction, not the Board of Supervisors.

As noted above, none of these provisions authorize a board of supervisors to remove an individual board member for unethical conduct.

MS AG Op., Holmes (November 7, 2014). This remains our opinion.

If this office may be of any further assistance to you, please let us know.

Sincerely,

Jim Hood, Attorney General.

Avery Mounger Lee, Special Assistant Attorney General.