Mississippi Advisory Opinions February 15, 2019: AGO 2019-00031 (February 15, 2019)

Advisory Opinion Text

W. Bruce Lewis

Wilkinson County Administrator

Post Office Box 516

Woodville, Mississippi 39669-0516

Re: Circuit Clerk's Compensation Under Section 23-15-225 of the Mississippi Code

Dear Mr. Lewis:

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

Issues Presented

In your request, you state that the Circuit Clerk of Wilkinson County has not been paid compensation under Section 23-15-225(5) from the time she took office until the year 2018 when she was paid for that year on December 31, 2018. You further state that “By letter dated December 31, 2018, and delivered and presented by the clerk to the Board of Supervisors at its meeting on January 7, 2019, the clerk requested payment under the statute for the calendar years 2017, 2016, and 2015 in addition to the payment received on December 31, 2018.” Specifically, you ask: “May the County pay compensation to the Circuit Clerk under Section 23-15-225(5) for the year 2015 or is that statutory obligation extinguished and defeated by Sections 15-1-49, 15-1-1, and 15-1-3 of the Mississippi Code?”

Response

The County may compensate the Circuit Clerk pursuant to Section 23-15-225(5) provided that such payment is not barred by the statute of limitations.

Applicable Law and Response

Pursuant to Section 23-15-225(5):

The circuit clerk shall, in addition to any other compensation provided for by law, be entitled to receive as compensation from the board of supervisors the amount of Two Thousand Five Hundred Dollars ($2,500.00) per year. This payment shall be for the performance of his or her duties in regard to the conduct of elections and the performance of his or her other duties.

Pursuant to Section 15-1-49(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.” Section 15-1-3(2) provides:

In any case founded on a debt, when any part of the debt shall have been paid, or an acknowledgment of an existing liability, debt or claim, or any promise to pay the same shall have been made, the statute of limitations not having run, an action may be brought in such case within the period prescribed for the same, with the said period to begin after such payment, acknowledgment or promise.

In your request, you reference an opinion we issued in 2014 regarding a mandatory obligation of the County to provide compensation for a sheriff performing specific statutory duties. MS AG Op., Montgomery (November 7, 2014). In that opinion, we stated:

It is the opinion of this office that the County may pay the unpaid claim subject to the three-year prescriptive period. As noted by the OSA, this “means the Board ... is authorized to and required to pay the Sheriff any unpaid compensation obligation for the immediate thirty six (36) preceding months of the Sheriff's claim for unpaid compensation.” If the Sheriff made or makes a claim for periods preceding the three-year prescriptive period, the County would be obligated to assert, and legally be precluded from waiving, the statute of limitations. The timing and determination of when the Sheriff made a claim on the County for unpaid wages is a factual issue that the Board of Supervisors must determine.

Similarly, the compensation owed to the Circuit Clerk under Section 23-15-225(5) is a mandatory obligation of the County. As stated above, pursuant to Section 15-1-49, recovery is limited by the three-year statute of limitations or prescriptive period from the date when the claim for unpaid compensation accrued. Whether the claim for 2015 payment falls within the three-year period, as potentially modified by Section 15-1-13(2), is a factual determination that must be made by the Board of Supervisors. Given the factual nature of this scenario, you may want to consult with the Office of the State Auditor in determining whether such payment would be proper.

If we may be of further service, please let us know.

Very truly yours,

Jim Hood, Attorney General.

Beebe Garrard, Special Assistant Attorney General.