Mississippi Advisory Opinions May 07, 1992: 19920507 (May 07, 1992)

Advisory Opinion Text

Mr. Samuel L. Cauthen

District 1 Supervisor

Adams County Board of Supervisors

Post Office Box 1008

Natchez, Mississippi 39121–1008

Re: EMPLOYMENT OF COUNSEL

Dear Mr. Cauthen:

Attorney General Mike Moore has received your letter of request and has assigned it to me for research and reply. Your letter outlines in detail facts related to the payment of legal services rendered in representing the Adams County Election Commission. A copy of your letter is attached. Specifically you ask the following two questions:

1. Having determined that there was a conflict of interest for the same attorney to represent the Adams County Board of Supervisors and the Adams County Election Commission, once the authority had been given to the Adams County Election Commission to employ independent counsel; first, did the Commissioners of the Adams County Election Commission have authority to instruct their attorney to represent their interest throughout the hearings and to continue to represent their interest through the appeal process without returning to the Adams County Board of Supervisors at each state of the litigation and request additional authority for Mr. Latham to file various pleadings; and second, does the Adams County Board of Supervisors have authority to pay for the services rendered?

2. Once an agency of the state government, such as the Commission, employs the services of an attorney to represent its interest in certain legal matters, and the minutes of the Board of Supervisors does not reflect the authority given to the Commissioners to employ such attorney, can the Board of Supervisors subsequently ratify the acts of the Election Commission and authorize payment for the legal services to the Election Commission?

Please understand we cannot resolve the facts and circumstances surrounding this case by opinion. We cannot determine, by opinion, the existence or extent of the contract claim in issue. The board of supervisors will have to make that inquiry and determination subject to judicial review. We will, however, offer the following legal opinion that should be applied to the facts as determined by the board.

First, it would appear from the information provided in your letter that the provisions of § 25–1–47, Miss.Code of 1972, as amended, is the source of authority to employ counsel to represent and defend the Adams County Election Commission. Invoking this provision, however, requires the board to adjudicate, consistent with fact, that the subject litigation is a consequence of the Commission's actions while acting in their capacity as such rather than relating to activity concerning their own private and personal affairs.

Secondly, the board of supervisors may act as a board only through its minutes. Smith v. State , 223 So.2d 657 (Miss.1969) and Warren County Port Commission v. Farrell Const. Co ., 395 F.2d 901 (5th Cir.1968) . Therefore you should look to the minutes to determine what, if any, action was taken with respect to authorizing the Election Commission to employ counsel. Likewise, such minute presumably will reflect what limitations, if any, the board may have placed on such employment.

Thirdly, the board may not, in our opinion, ratify action after the fact. The Mississippi Supreme Court has previously held that the board of supervisors has no authority to enter an order nunc pro tunc, which attempts to give an order effect retroactively to a former term. Oliphant v. Carthage Bank, 224 Miss. 386, 80 So.2d 63 (1955) and Board of Supervisors of Lafayette County v. Parks, 132 Miss. 752, 96 So. 466 (1923) .

Sincerely yours,

Mike Moore Attorney General

ATTACHMENT

April 2, 1992

Mr. Mike Moore

Attorney General

P.O. Box 220

Jackson, Mississippi 39205

Dear Sir:

The Adams County Board of Supervisors has been submitted the following fact scenario and requests your Attorney's General Opinion with respect to the authority of the Adams County Board of Supervisors to pay for services rendered to the Adams County Election Commission.

On August 14, 1991, Charles Sanders filed suit in the Chancery Court of Adams County, Mississippi, against the Adams County Board of Supervisors, the Adams County Democratic Executive Committee, the Adams County Republican Committee, and the Adams County Election Commission. Charles Sanders sought to enjoin the conduct of the election for supervisors for Adams County. Upon being served with a summons, Larry Gardner and Mabel McMillan appeared before the Adams County Board of Supervisors and informed them that they have been served with the Complaint and that they felt the need for representation. Joe Zuccaro discussed the matter of conflict of interest with the Commissioners of the Adams County Election Commission to determine if there was a conflict, and if so, to advise them that they could seek independent counsel.

On August 23, 1991, Mr. Zuccaro contacted Mr. Latham to determine if he would be available to represent the Adams County Election Commission at the hearing which had been scheduled for August 22, 1991, being eight (8) days after the Complaint was filed.

After a full day trial, the Chancery Court subsequently issued an injunction prohibiting the conduct of the Supervisors Election for Adams County, Mississippi. The Commissioners of the Adams County Election Commission made the decision to appeal from the Order issuing the injunction. The appeal was handled on an expedited basis in the Supreme Court of the State of Mississippi and it rendered its decision on the 13th day of September, 1991, reversing the Order of the Chancery Court and dissolving the injunction.

When Larry Gardner and Mabel McMillan presented the statement for legal services of Robert C. Latham to the Adams County Board of Supervisors for payment, Mr. Philip West raised the question as to whether the Adams County Board of Supervisors had given the Commissioners of the Adams County Election Commission the authority to hire an attorney.

Mr. Philip West's understanding of the authority given to the Commissioners of the Adams County Election Commission was solely to authorize them to hire any attorney to file an Answer and not to perform any other legal services with respect to the lawsuit other than the filing of the Answer. Mr West contends that the Board of Supervisors did not give the Commissioners of the Adams County Election Commission authority to authorize Mr. Latham to continue with the appeal nor file any other pleadings with respect to the lawsuit.

During the pendency of the lawsuit between Charles E. Sanders and the Adams County Board of Supervisors, et al, the United States Justice Department notified the Adams County Board of Supervisors that the procedures for purging the voter rolls in Adams County did not comply with Section V of the Voting Rights Act of 1965. As a result of the continuing litigation, Mr. Zuccaro requested Mr. Latham to represent to Adams County Election Commission in resolving the issues pertaining to the purging of the voter rolls.

The Board of Supervisors requests an opinion from the Attorney General with respect to the following two (2) questions:

1. Having determined that there was a conflict of interest for the same attorney to represent the Adams County Board of Supervisors and the Adams County Election Commission, once the authority had been given to the Adams County Election Commission to employ independent counsel; first, did the Commissioners of the Adams County Election Commission have authority to instruct their attorney to represent their interest through the appeal process without returning to the Adams County Board of Supervisors at each stage of the litigation and requesting additional authority for Mr. Latham to file various pleadings; and, second, does the Adams County Board of Supervisors have authority to pay for the services rendered.

2. Once an agency of the state government, such as the Commission, employs the services of an attorney to represent its interest in certain legal matters, and the minutes of the Board of Supervisors does not reflect the authority given to the Commissioners to employ such attorney, can the Board of Supervisors subsequently ratify the acts of the Election Commission and authorize payment for the legal services rendered to the Election Commission.

ADAMS COUNTY BOARD OF SUPERVISORS

Samuel L. Cauthen