Can a Mississippi county board of supervisors appoint an attorney who lives outside the county to serve as the appointed county prosecutor?

Plain-English summary

Kemper County is in a bind common to small, rural Mississippi counties: it has abolished the elected county-attorney position and only one bar-active attorney lives in the county. The Board of Supervisors asked whether it could appoint someone who lives outside Kemper County to fill the appointed county-prosecutor role. AG Hood said yes.

The key distinction is between an elected county prosecutor and an appointed one. An elected county prosecutor holds public "office" within the meaning of Article 12, Section 250 of the Mississippi Constitution, so the holder has to be a qualified elector of the county (which in turn requires residency). An appointed county prosecutor under § 19-3-49 does not hold "office." The job is a contract for legal services. Because it is a contract rather than an office, the constitutional qualified-elector requirement does not apply.

The legal handhold for that distinction comes from the Mississippi Supreme Court's 1957 decision in Golding v. Armstrong, which the AG quotes at length. Under Golding, "a duty or employment arising out of a contract, and dependent for its duration and extent upon the terms of such contract, is never considered an office." Section 19-3-49 frames the appointed county-prosecutor job as a contract that ends if and when an elected county-prosecutor seat is created and filled, which is precisely the Golding test for not-an-office.

A previous AG opinion (the Kilpatrick opinion from 2001) held that a vacancy in an elected county-prosecutor seat must be filled by someone who is a qualified elector of the county. Hood reaffirms Kilpatrick but distinguishes it: Kilpatrick was about elected positions; this question is about appointed ones.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What is the difference between elected and appointed county prosecutors in Mississippi?
A: Two completely separate statutory regimes. Section 19-23-1 et seq. governs the elected county-prosecutor office: the office exists by law, the prosecutor is elected by the voters of the county, and the holder must be a qualified elector. Section 19-3-49 governs the appointed position: it exists only in counties without an elected prosecutor, the board of supervisors hires the prosecutor by contract, and there is no statutory residency requirement.

Q: Why does it matter whether the position is an "office"?
A: Article 12, Section 250 of the Mississippi Constitution requires that "all qualified electors and no others shall be eligible to office." Being a qualified elector in Mississippi requires being a registered voter, which requires county residency. So if the appointed prosecutor position were a constitutional "office," only county residents could serve. The AG concluded it is not an office, so residency is not required.

Q: What is the Golding v. Armstrong test that controls?
A: From the 1957 Mississippi Supreme Court case: "An office is a public charge or employment; but, as every employment is not an office, it is sometimes difficult to distinguish between employments which are, and those which are not offices. It is generally, if not universally true that a duty or employment arising out of a contract, and dependent for its duration and extent upon the terms of such contract is never considered an office." Because § 19-3-49 explicitly makes the appointed prosecutor a contract position that ends if an elected prosecutor's office is created, Golding applies and the position is not an office.

Q: How long can the appointment last?
A: Per § 19-3-49(1), the contract must be "for the period of the remainder of the term of office of the board of supervisors which employs the county prosecuting attorney." So if the Board has 18 months left in its term when it appoints the prosecutor, the contract runs 18 months. The contract can be abrogated mid-term only by creation and filling of the elected county-prosecutor office.

Q: What if the Board wants to fire the appointed prosecutor mid-term?
A: Per § 19-3-49(1), the contract "shall provide that the salary of such county prosecuting attorney shall not be reduced, increased or terminated for the period of the contract." Translation: the prosecutor has strong contract protection during the Board's term. The only built-in termination trigger is reinstatement of an elected county-prosecutor seat.

Q: Are there compensation caps?
A: Yes. Per § 19-3-49(1), compensation "shall not exceed, during any calendar year, the amount authorized by law to be paid as salary to the county prosecuting attorney in such county." So the appointed prosecutor cannot make more than the elected prosecutor would have made.

Q: Does this affect dual-office-holding rules?
A: Indirectly. Mississippi's dual-office-holding doctrine (rooted in Art. 12, § 266 and common law) prohibits one person from holding two civil offices at once. Since the appointed prosecutor under § 19-3-49 is not an "office," accepting that appointment should not by itself trigger the dual-office-holding prohibition. But the analysis is fact-specific; consult counsel before stacking it with another position.

Background and statutory framework

Mississippi's appointed-county-prosecutor statute reflects a practical accommodation. The state has 82 counties, many rural and lightly populated. In counties without enough resident attorneys or without enough work to support a full elected prosecutor, the legislature wanted boards of supervisors to be able to contract for the service.

Section 19-3-49 lays out the structural protections that follow from making the position a contract:

• The contract must be for the remainder of the Board's term.
• Compensation is capped at what an elected prosecutor in that county would have earned.
• The contract is terminated only by creation and filling of an elected prosecutor's office.
• The Board has full discretion to choose any "competent" attorney; the statute imposes no residency, age, or other qualification beyond competence and bar membership.

The constitutional backdrop is Article 12, Section 250's qualified-elector requirement for office. The Supreme Court's Golding v. Armstrong test for distinguishing office from employment supplies the rule of decision: contract employments are not offices. Section 19-3-49's statutory structure is built to fit on the "not an office" side of that line.

The narrower opinion the AG distinguishes is Kilpatrick (Jan. 26, 2001), which had held that a vacancy in an elected county-prosecutor seat must be filled by a qualified elector of the county. Kilpatrick remains good law for elected vacancies but does not extend to appointed-prosecutor contracts.

Citations and references

Statutes: Miss. Code Ann. § 19-3-49 (the operative statute on appointed county prosecutors); § 19-23-1 et seq. (elected county prosecutor framework); § 19-23-9 (qualifications of elected county prosecutor).

Constitutional provisions: Miss. Const. art. 12, § 250 (qualified electors and only qualified electors are eligible to office).

Cases: Golding v. Armstrong, 231 Miss. 889, 97 So. 2d 379 (1957) (the office-vs.-employment test).

Prior AG opinions referenced: Kilpatrick (Jan. 26, 2001) (elected vacancy requires qualified elector; distinguished here because this opinion is about appointed positions).

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2020/07/J.Barry_January-3-2020-Appointment-of-County-Prosecuting-Attorney.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

STATE OF MISSISSIPPI

JIM HOOD
ATTORNEY GENERAL

OPINIONS DIVISION

January 3, 2020

J. Richard Barry, Esquire
Attorney for the Kemper County Board of Supervisors
Post Office Box 2009
Meridian, Mississippi 39302

Re: Appointment of County Prosecuting Attorney

Dear Mr. Barry:

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

Background and Issues Presented

Your request states:

Several years ago Kemper County abolished the elected position of County Attorney. For the past many years, the Kemper County Board of Supervisors has appointed an attorney to fill that position under Section 19-3-49 of the Mississippi Code Annotated.

At present, there is only one active member of the Mississippi Bar, who is a resident of Kemper County. The Board is considering appointing an attorney who is not a resident of Kemper County.

The questions we request an opinion from your office are as follows:

1. Can the Board of Supervisors of Kemper County appoint and contract with a County Attorney who resides outside of the County under Section 19-3-49?

2. Alternately, can the Board of Supervisors of Kemper County appoint and contract with a County Attorney who resides outside of the County under Section 19-3-49 if it determines there is no qualified member of the Bar that resides in Kemper County?

3. Further, can the Board of Supervisors of Kemper County name as County Attorney the attorney serving as Board Attorney (firm) if that person is not a resident of Kemper County?

Additionally, Marvin Wiggins, the current county prosecutor, has written into our office and asked us to consider Article 12, Section 250 of the Mississippi Constitution of 1890, as well as Sections 19-23-1 et seq. of the Mississippi Code Annotated, and a previous opinion to the Honorable J. Max Kilpatrick.

Brief Response

The board of supervisors can contract with an attorney who is not a resident of Kemper County to serve as county prosecutor. In a county where there is no elected prosecutor, there is no requirement that the board of supervisors appoint someone who lives in the county to fill the appointed county prosecutor seat, as the county prosecutor in such a case does not hold "office."

Response and Legal Analysis

In response to your first question, Section 19-3-49 of the Mississippi Code Annotated establishes the office of appointed county prosecutor. Section 19-3-49(1) states, in relevant part:

(1) In all counties of this state wherein there is no elected county prosecuting attorney, the boards of supervisors shall have the power and authority to employ a competent attorney to appear and prosecute in cases requiring the services of the county prosecuting attorney. The compensation paid to the person so employed shall be paid from the general fund of such county and shall not exceed, during any calendar year, the amount authorized by law to be paid as salary to the county prosecuting attorney in such county. The employment of a county prosecuting attorney as authorized by this section shall be pursuant to a contract which shall provide that the salary of such county prosecuting attorney shall not be reduced, increased or terminated for the period of the contract. Such contract shall be for the period of the remainder of the term of office of the board of supervisors which employs the county prosecuting attorney; however, the contract shall provide expressly or by reference to this section that the contract shall be abrogated upon the creation and filling of the office of elected county prosecuting attorney.

(Emphasis added). Section 19-3-49 alone gives the board the discretion in choosing any person they deem competent to fulfill the role of county prosecutor.

Mr. Wiggins' request asks this office to consider that Article 12, Section 250 of the Mississippi Constitution of 1890 would apply to the position in question. Article 12, Section 250 states:

All qualified electors and no others shall be eligible to office, except as otherwise provided in this Constitution; provided, however, that as to an office where no other qualification than that of being a qualified elector is provided by this Constitution, the Legislature may, by law, fix additional qualifications for such office.

Article 12, Section 250 requires that any person who holds "office" be a qualified elector. The ultimate question in determining if the appointed county prosecutor is required to be a qualified elector rests on whether or not he or she holds "office" as contemplated in Article 12, Section 250. The Supreme Court of Mississippi previously provided that:

the term office has no legal or technical meaning attached to it, distinct from its ordinary acceptations. An office is a public charge or employment; but, as every employment is not an office, it is sometimes difficult to distinguish between employments which are, and those which are not offices. It is generally, if not universally true that a duty or employment arising out of a contract, and dependent for its duration and extent upon the terms of such contract is never considered an office.

Golding v. Armstrong, 231 Miss. 889, 896, 97 So. 2d 379, 382 (1957).

Section 19-3-49 importantly states that the only way the contract can end prior to the period of the remainder of the term of office of the board of supervisors is when it "shall be abrogated" by establishing the office of elected county prosecutor. The fact that a contract of an appointed county prosecutor is abrogated upon the creation of the office of the elected county prosecutor necessarily implies that the appointed county prosecutor does not hold "office." Therefore, the appointed county prosecutor would not be subject to the requirements of Article 12, Section 250. Mr. Wiggins' request states that the outgoing board is considering appointing an attorney who is not a resident of Kemper County. The board may, in its discretion, choose any competent attorney to act as county prosecutor, but should be aware that Section 19-3-49 requires the contract of employment "be for the period of the remainder of the term of office of the board of supervisors which employs the county prosecuting attorney."

Mr. Wiggins also asserts that Sections 19-23-1 et seq. of the Mississippi Code Annotated support his position that the appointed county prosecutor must be a qualified elector. Sections 19-23-1 et seq. provide for the office of elected county prosecutor and do not apply to appointed county prosecutors. Mr. Wiggins further asks us to uphold our opinion in Kilpatrick. Our opinion to Kilpatrick dealt with a county where the county prosecutor was elected not appointed. Therefore, we believe that our opinion in Kilpatrick is still correct, but does not apply to the facts that were presented in both your and Mr. Wiggins' requests.

Section 19-3-49 prescribes the requirements for the appointed county prosecutor, and does not require that the attorney live within the county. The appointed county prosecutor does not hold "office" and is not subject to Article 12, Section 250. Therefore, the board of supervisors may contract with an attorney it deems competent to perform the duties of county prosecutor.

Your second question is moot. In response to your third question, please see our response to your first question above.

Our prior opinion to the Honorable J. Max Kilpatrick is in conformity with this opinion.

If we can be of further assistance, do not hesitate to call us.

Very truly yours,

JIM HOOD, ATTORNEY GENERAL

Emiko Hemleben
Special Assistant Attorney General

Note: We previously opined in regard to an elected county prosecutor:

"[T]hat the appropriate method to fill a temporary vacancy in the office of county prosecuting attorney is to declare the vacancy, name a person to fill that vacancy on an interim basis and call a special election for the remainder of the term... Section 19-23-9 requires a county prosecuting attorney to possess all the qualifications of other county officers in addition to being a regular licensed and practicing lawyer. That necessarily means that the person named to fill the vacancy must be a qualified elector of the county. Therefore, one who establishes residency in another county would not be eligible to hold the office in question even on an interim basis."

MS AG Op., Kilpatrick (January 26, 2001)(emphasis added)(citation omitted).