Mississippi Advisory Opinions October 13, 1993: AGO 000007039 (October 13, 1993)

AGO 000007039.

Dear Mayor Lee:

Attorney General Mike Moore has received your letter of request and has assigned it to me for research and reply.

Your letter states:

"In the 1993 municipal election for the Town of Mt. Olive, a case with which I believe you are already familiar, the former mayor and four candidates for alderman were ruled ineligible by the election commission due to the fact that they had neither filed a petition of fifteen voters nor received the endorsement of a bona fide party prior to the filing deadline.

The former mayor, Hugh Warren, upon learning of this decision, tried to fire the chairman of the election commission. Being blocked in this action by the board, he then formed a 'democratic committee', which held its only 'mass rally' some month after the primaries were ended, endorsing the mayor and his field of candidates. No one else was allowed to make a nomination or speak at this 'mass rally', despite the fact that a number of citizens asked to do so and protested their exclusion from the democratic process. Parts of these proceedings were recorded by a local television station, if you have any interest in investigating this travesty of election law.

Finally, the mayor filed a lawsuit, naming the town and the election commission as defendants, demanding that his slate be placed on the ballot and that their judgments be overruled. As a consequence, the election commissioners had to hire an attorney to defend the commission against the Mayor and the four would-be aldermen who joined in the suit. The attorney for the Town appeared in court, but actually sat with the Mayor during the entire proceedings and offered no defense of the Town or protest of the actions being taken. The case was eventually ruled moot by the Supreme Court, when the former mayor lost his bid for reelection. However, one of the other plaintiffs still remains on the Board of Aldermen.

This Alderman and relatives of the former mayor are now trying to prevent the town's paying of the legal fees for the Election Commission, even though the Board has already voted to pay them. The basis of their complaint is that the Election Commission did not come before the former mayor and Board in a formal meeting to receive approval for hiring counsel.

Prior to hiring the attorney, two members of the election commission did try to appear before the Board, but the mayor, of course, refused to talk with them. During this period, he also refused to attend an emergency meeting called by three members of the Board. The Chairman of the Commission, Mrs. Linda Emfinger, did subsequently canvas those members of the Board not party to the lawsuit. She received approval to hire counsel from three of the five members of the Board, all of whom are still serving and have affirmed this vote of approval in regular meetings held since the election. The decision to pay the attorney was also made in regular session, and the voter was again three to two in favor.

My questions to you are as follows:

(1) Does the Board have the right and duty to pay this legal fee incurred by the Election Commission, which I understand to be a 'quasi-judicial body' and, therefore, protected under the law as an independent governmental entity during its tenure.

(2) Does either executive or legislative branch have the right to fire, to overrule, or to otherwise attempt to interfere with the actions of the Commissioners during the election process or during any other legitimate performance of their constitutional duties?

(3) Since the mayor and one Board member were plaintiffs in the suit, would it not have been a clear conflict of interest to have demanded that these parties engage or authorize the hiring of counsel for the defendants.

I would very much appreciate your continued interest in these proceedings, and some firm guidelines on the division of powers, and the rights of citizens serving governmental entities to operate free of intimidation and harassment."

In response to your first question, Mississippi Code Annotated Section 25-1-47 (Revised 1991) bestows upon the municipal governing authorities the discretionary authority to provide legal counsel for the defense of any civil or criminal action against an individual officer or employee, etc., when that individual is acting in his official capacity. However, in the factual situation described in your letter the suit in question was against the commission as an arm of the municipality as opposed to a suit against one or more of the commissioners individually. We view the suit in question as being one in which the plaintiffs were candidates acting in their individual capacities as such and the defendant being the municipal election commission of the Town of Mount Olive.

It appears clear that the suit against the commission was filed as a direct result of the actions of the commissioners in ruling on candidate qualifications and approving the official ballot, etc. for the 1993 municipal general election.

Section 25-1-47(2) provides:

"Any municipality of this state is hereby authorized and empowered, within the discretion of its governing authorities, to pay and satisfy any negotiated settlement of a claim or any judgment, fine, or penalty which may be made, assessed, or levied by any court against any municipal agent, officer, servant, employee, or appointee as a result of any actions of such municipal agent, officer, servant, employee, or appointee while acting as such."

Based on the above and the facts presented, it is our opinion that upon the presentation of a claim against one or more of the election commissioners for legal fees incurred to defend a suit attacking their official actions in the 1993 municipal general election, the municipal governing authorities would have the discretionary authority to pay said claim.

In reference to your second question and as indicated in our opinion addressed to Mayor Hugh Warren, dated June 3, 1993 (copy enclose) once a municipal election commissioner has been appointed, that commissioner serves the remainder of the term concurrently with the term of the appointing authorities. The election commissioners have certain statutory duties that they must perform. The determinations made and the actions taken in the performance of those duties are not subject to being overruled by the board of aldermen or mayor.

In reference to your third question, we would defer any specific questions regarding possible conflicts of interest to the Mississippi Ethics Commission.

Sincerely, MIKE MOORE ATTORNEY GENERAL

BY: Phil Carter Assistant Attorney General

PC:sm