Mississippi Advisory Opinions August 13, 2019: AGO 2019-00237 (August 13, 2019)

Advisory Opinion Text

Bryant W. Clark, Esquire

Special Counsel

Holmes County Board of Supervisors

Post Office Box 179

Lexington, Mississippi 39095

Re: Board of Supervisors Compensation

Dear Mr. Clark:

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

Questions Presented

Question 1. Can the Board of Supervisors not pay the salary and travel of a Supervisor and not allow him to use county-owned vehicles even if he may be disqualified from holding office but has not been removed?

Question 2. Can the members of the Board of Supervisors be held personally liable for paying the salary and travel of a Supervisor and allowing him to use a county-owned vehicle, even though he may be disqualified from office, although he has not been removed from office?

Brief Responses

Response to Question 1: The Board of Supervisors may not pay salary, travel, and other compensation to a supervisor, including use of county vehicles, when the Supervisor is disqualified by law from holding office.

Response to Question 2: Yes, as provided by Miss. Code Ann. Sections 19-13-35 and 31-7-57.

Background

Your letter reads, in pertinent part, as follows:

It has recently been brought to the attention of the Holmes County Board of Supervisors that one of the members of the board may have been convicted of a disqualifying felony prior to being elected to the Board of Supervisors. However, no formal determination of his ineligibility has been determined by any court. It is unclear to the Board whether the county should continue to pay the salary and travel for said Supervisor. The said Supervisor was certified by the Holmes County Democratic Executive Committee, the Holmes County Election Commission and the Mississippi Secretary of State's Office as a candidate for supervisor. After winning the election, he was certified by the Secretary of State's Office as the winner of the election. On or around January 5, 2016, Governor Phil Bryant issued a commission that stated the said supervisor was duly and constitutionally elected to the Holmes County Board of Supervisors and to hold the office until removed or replaced in accordance with law.

The said Supervisor has continued to perform all the duties and requirements of a County Supervisor. It is my understanding that the official acts of any person in possession of a public office and exercising the functions thereof shall be valid and binding as official acts in regard to all persons interested or affected thereby whether such person be lawfully entitled to hold office or not. Chambliss v. State, 801 So.2d 824 (Miss. App., 2001). In considering the fact the Supervisor is carrying out his duties as supervisor and no formal proceeding to remove him from office has been done, I have not found any provision in state law to authorize the board of supervisors to not pay his salary and expenses of the supervisor. Also case law suggests that the Supervisor is entitled to receive his salary until such time as he has been removed from office. In Wilkinson County Bd. of Supervisors v. Joliff, 230 So.2d 61 (Miss. 1969), the Supreme Court held that the salary of a public official is an incident to the office, and the legal right to...receive or enforce the payment thereof goes with the legal title thereto. Am I correct that until such time he is removed from office, legal title to the office of Supervisor is still vested with the supervisor? If that is correct, then under Wilkinson Co. Bd. of Supervisors v. Joliff the said Supervisor is lawfully entitled to his salary and travel until such time he is removed from office?

Also, I have concerns whether not paying the supervisor without a judicial or administrative proceeding to remove him from office is a violation of his constitutional right to due process.

Analysis and Discussion

The authority of the Attorney General's office to issue official opinions is bound by the provisions of Miss. Code Ann. Section 7-5-25 (1972), which states that the opinions shall be based on the facts provided in the letter of request. We have learned additional facts not stated in your request letter; and if you have other pertinent facts, please let us know.

We understand that this request concerns a Supervisor who was elected to the Holmes County Board of Supervisors in 2015. We understand that the Supervisor was convicted in Holmes County Circuit Court of the crime of Simple Assault on a Police Officer, a felony, and on May 4, 1981, sentenced to serve a term of three (3) years in custody of the State Department of Corrections.

Section 44 of the Mississippi Constitution of 1890 provides that persons convicted of certain felonies, and not pardoned, are disqualified from holding public office in Mississippi: (1) No person shall be eligible to a seat in either House of the Legislature, or to any office of profit or trust, who shall have been convicted of bribery, perjury, or other infamous crime; and any person who shall have been convicted of giving or offering, directly, or indirectly, any bribe to procure his election or appointment, and any person who shall give or offer any bribe to procure the election or appointment of any person to office, shall, on conviction thereof, be disqualified from holding any office of profit or trust under the laws of this state.

(2) No person who is convicted after ratification of this amendment in another state of any offense which is a felony under the laws of this state, and no person who is convicted after ratification of this amendment of any felony in a federal court, shall be eligible to hold any office of profit or trust in this state.

(3) This section shall not disqualify a person from holding office if he has been pardoned for the offense or if the offense of which the person was convicted was manslaughter, any violation of the United States Internal Revenue Code or any violation of the tax laws of this state unless such offense also involved misuse or abuse of his office or money coming into his hands by virtue of his office.

For purposes of Section 44, an “infamous crime” is a crime “punishable” by confinement in the Mississippi penitentiary. Mauney v. State ex rel. Moore, 707 So.2d 1093 at 1096 (1998). On the issue of whether the time in the penitentiary must actually be served by the defendant, the Court in Mauney quoted the U.S. Supreme Court: “The test is whether the crime is one for which the statutes authorize the court to award an infamous punishment, not whether the punishment ultimately awarded is an infamous one.” Mackin v. U.S., 117 U.S. 348 at 351, 6 S.Ct. 777 at 778 (1886).

On March 9, 1983, the Supervisor was granted an “indefinite suspension” of sentence by Gov. William Winter for the above described crime, on the condition that he be released to the U.S. Marshall's Service to serve a sentence of three years in federal prison for a conviction in federal court for an unrelated crime. We note that an “indefinite suspension” order is not a pardon.

After a candidate files qualifying papers to run for county office running under a party label, the appropriate county executive committee has the duty to determine if a candidate meets the legal qualifications to hold office and must disqualify any candidate convicted of a felony in a Mississippi court, as provided in Miss. Code Ann. Section 23-15-299 (7) (1972):

(7)(a) ... The committee ... shall also determine whether any candidate has been convicted (i) of any felony in a court of this state...

(b) If the proper executive committee ... finds that a candidate ... (iii) has been convicted of a felony or other disqualifying offense as described in paragraph (a) of this subsection, and not pardoned, ...then the name of that candidate shall not be placed upon the ballot.

If such county-level candidate goes on to become the nominee of that party, the County Election Commission is then required to perform the same functions of determining whether any county general election candidates have been convicted of a disqualifying felony; and if so, not placing their name on the general election ballot, in accordance with Miss. Code Ann. Section 23-15-359 (9):

(9)(a) ... The election commission also shall determine whether any candidate has been convicted (i) of any felony in a court of this state, ...

(b) ...If the appropriate election commission finds that a candidate...(iii) has been convicted of a felony or other disqualifying offense as described in paragraph (a) of this subsection, and not pardoned, ... then the name of such candidate shall not be placed upon the ballot.

For whatever reason, the candidate was allowed to qualify and run for the office of Supervisor, even though the above named entities had a duty to disqualify him and to refrain from printing his name on the primary and general election ballots. We are not aware of anyone attempting to disqualify the candidate in the matter described in Miss. Code Ann. Section 23-15-963 (1972).

Due to his conviction for a disqualifying felony, the Supervisor was never a legal candidate and never had a right to the office in the first instance. In State v. Hays, 45 So. 728, 729 (1908), a case wherein an unqualified candidate was sworn into office and thereafter served for several years, the Mississippi Supreme Court stated:

In the case of State v. Harrison, 113 Ind. 434, 16 N.E. 384, 3 Am. St. Rep. 666, it is said: “The word ‘vacancy,’ as applied to an office, has no technical meaning. An office is not vacant so long as it is supplied in the manner provided by the Constitution or law with an incumbent who is legally qualified to exercise the powers and perform the duties which pertain to it; and, conversely, it is vacant in the eye of the law whenever it is unoccupied by a legally qualified incumbent, who has a lawful right to continue therein until the happening of some future event.”

See also MS AG Op., McWilliams (July 26, 2019).

Please note that Wilkinson County Board of Supervisors v. Jolliff, 230 So.2d 61 (1969), the case cited in your request letter supporting the notion of compensation for de facto officials, was overruled by Cumbest v. Commissioners of Election of Jackson County, 416 So.2d 683, 689 (1982).

Miss. Code Ann. Section 25-1-37 (1972) provides:

The official acts of any person in possession of a public office and exercising the functions thereof shall be valid and binding as official acts in regard to all persons interested or affected thereby, whether such person be lawfully entitled to hold the office or not and whether such person be lawfully qualified or not; but such person shall be liable to all the penalties imposed by law for usurping or unlawfully holding office, or for exercising the functions thereof without lawful right or without being qualified according to law.

The Supervisor, therefore, has occupied the office of supervisor as a de facto officer, but not a de jure officer. In other words, he may have physically occupied the office and may have carried out certain functions which the courts have held would be presumed as valid acts, but he was not legally entitled to the office and, therefore, is not entitled to compensation as was held in the case of a county sheriff in Matthews v. Board of Supervisors, 53 Miss. 715, 719 (1876):

..(an unqualified candidate), he was constitutionally ineligible to the office, and was a mere unlawful occupant during his entire term, suffered to exercise the functions of the (office) by the permissive indulgence of the authorities and of his fellow-citizens, any one of whom under our statutes might have ejected him by proceedings of quo warranto. Under such circumstances he was a simple volunteer, offering his services to the State, but entitled to claim no compensation therefor. As to third parties his acts were valid, but as to the State he was a wrongdoer; and his conduct loses nothing of this character, because it was permitted to pass unchallenged during the term.

In MS AG Op., Faulks (November 28, 2017), this office stated:

While the acts of a de facto officer are valid, the individual performing those acts is not entitled to claim compensation. MS AG Op., Thurman, et al. (October 23, 2015) citing Mississippi Code Annotated Section 25-1-37 and Matthews v. Board of Supervisors, 53 Miss. 715 (1876). We are of the further opinion that a de facto officer is not entitled to claim or be reimbursed for travel expenses.

Miss. Code Ann. Section 19-13-35 (1972), entitled “Penalty for unauthorized appropriations”, reads as follows:

If any person shall claim and receive from the board of supervisors of a county any fee or compensation not authorized by law, or if a member of such board shall knowingly vote for the payment of any such unauthorized claim, or any appropriation not authorized by law, he shall be subject to indictment, and, on conviction, be fined not exceeding double the amount of such unlawful charge, or may be imprisoned in the county jail not more than three months, or be subject to both such fine and imprisonment.

Miss. Code Ann. Section 31-7-57 (1972), entitled “Unlawful expenditures liability”, reads, in pertinent part:

(1) Any elected or appointed public officer of an agency or a governing authority, or the executive head, any employee or agent of an agency or governing authority, who appropriates or authorizes the expenditure of any money to an object not authorized by law, shall be liable personally for up to the full amount of the appropriation or expenditure as will fully and completely compensate and repay such public funds for any actual loss caused by such appropriation or expenditure, to be recovered by suit in the name of the governmental entity involved, or in the name of any person who is a taxpayer suing for the use of the governmental entity involved, and such taxpayer shall be liable for costs in such case. In the case of a governing board of an agency or governing authority, only the individual members of the governing board who voted for the appropriation or authorization for expenditure shall be liable under this subsection.

Conclusion

Accordingly, with respect to your first question, we are of the opinion that the Supervisor, as a de facto officer, is not entitled to either salary or travel expenses paid by the county, and prohibited travel expenses would include providing him a county-owned vehicle. He would, likewise, be prohibited from receiving any other compensation from the county or improperly using any other county property or equipment.

With respect to your second question, personal liability to individual board members may accrue for violations described in Miss. Code Ann. Section 31-7-57 (1972).

Please let me know if you would like to discuss this matter or if I can be of further assistance.

Sincerely,

Jim Hood, Attorney General.

Reese Partridge, Special Assistant Attorney General.