Can a Mississippi county board of supervisors retroactively raise a county court judge's salary for a previous year if it failed to do so at the time?

Plain-English summary

In 2000, the Coahoma County Board of Supervisors passed a resolution setting the County Court Judge's salary at $1,000 less than what the state pays circuit and chancery judges. The Judge was paid that way for years.

For the 2020-2021 budget year, the Board set the Judge's salary at $135,000 (which was $1,000 below the $136,000 then paid to circuit/chancery judges). Effective January 1, 2021, circuit and chancery judges' salaries jumped to $149,000 under § 25-3-35. The County Court Judge's salary stayed at $135,000.

The Judge later asked the Board to pay him the difference between his 2021 salary of $135,000 and the $149,000 figure. The current Board wanted to know if it could do that.

The AG said no.

§ 96 of the Mississippi Constitution prohibits "extra compensation, fee, or allowance, to any public officer, agent, servant, or contractor, after service rendered." This applies to counties as well as the state per Golding v. Salter, 234 Miss. 567, 107 So. 2d 348 (1958).

Narrow exception: retroactive raises are permitted only for "back pay previously due but unpaid because of administrative error." MS AG Op., Mosley (Feb. 22, 2014). An administrative error means a mandatory increase that wasn't paid through oversight, not a discretionary increase the agency chose not to give.

In Coahoma County's case:

• The Board had discretion under § 9-9-11 to set the County Court Judge's salary up to $1,000 less than the circuit/chancery salary (subsections (1) and (7)) or up to 90% of the circuit/chancery salary on a graduated schedule (subsection (4)(c)).
• The Board chose not to increase the Judge's salary in 2021. That was a discretionary choice, not an administrative error.
• The 2000 resolution applied to fiscal year 2000-2001 and did not bind successor Boards.
• A board cannot bind a successor board to a contract unless statutorily authorized.

So the Board cannot retroactively raise the salary. The Judge received compensation that met the statutory minimum and was within Board discretion at the time. § 96 closes the door on after-the-fact increases.

Going forward, the Board has full discretion to set the Judge's salary at any level allowed by the applicable subsection of § 9-9-11, including the highest tier. But it can't reach back into the 2021 year.

What this means for you

County attorneys and boards of supervisors

The opinion holds that "[a]s long as the salary meets the statutory minimum of the applicable subsection of Section 9-9-11, the Board may not retroactively increase the salary of the County Court Judge," because doing so "would be a violation of Section 96 of the Mississippi Constitution, which prohibits extra compensation after services were rendered." It also states that "a board cannot bind a successor board to a contract unless statutorily authorized," so the 2000 resolution did not lock in later years.

County court judges

The opinion treats the 2021 salary as a discretionary decision the Board made under § 9-9-11, not a mandatory increase that was missed. It notes the Board "had the discretion to increase the County Court Judge's salary in 2021 but did not in fact do so," and that increasing it after the fact would be barred extra compensation.

State Auditor

The opinion frames § 96 as strictly forbidding retroactive salary increases "unless such payment is clearly shown to be back pay previously due but unpaid because of administrative error," and distinguishes "a discretionary raise that the agency could have given but, in fact did not give" from a raise "mandated by statute, rule, or regulation."

Common questions

Q: Can a county retroactively raise a county court judge's salary for a past year?
A: Per the opinion, no, as long as the salary already met the statutory minimum of the applicable § 9-9-11 subsection. A retroactive increase "would be a violation of Section 96 of the Mississippi Constitution."

Q: What is the administrative-error exception?
A: The opinion quotes its prior Mosley opinion: § 96 forbids retroactive increases "unless such payment is clearly shown to be back pay previously due but unpaid because of administrative error," where "compensation should have been mandatorily increased but the increased compensation was not paid due to oversight." A discretionary raise that was not given does not qualify.

Q: Why didn't the 2000 resolution require the raise?
A: The opinion says the 2000 resolution "appears to be specific to the salary for fiscal year 2000-2001," and that "a board cannot bind a successor board to a contract unless statutorily authorized."

Q: What salary range did § 9-9-11 allow here?
A: The opinion states that, assuming Coahoma County fits § 9-9-11(4)(c), "the Board has the discretion to set the County Court Judge's salary in accordance with either Subsection (4)(c) or Subsection (7)." Subsection (4)(c) describes a salary of at least 90% of the circuit/chancery salary, phased in; subsection (7) allows $1,000 less than a circuit court judge's salary.

Background and statutory framework

The opinion quotes § 96 of the Mississippi Constitution:

The Legislature shall never grant extra compensation, fee, or allowance, to any public officer, agent, servant, or contractor, after service rendered or contract made, nor authorize payment, or part payment, of any claim under any contract not authorized by law; but appropriations may be made for expenditures in repelling invasion, preventing or suppressing insurrections.

It cites Golding v. Salter, 234 Miss. 567, 107 So. 2d 348, 356 (1958), for the point that this prohibition "also applies to counties and municipalities," and its prior Mosley opinion (Feb. 22, 2014) for the narrow administrative-error exception, which it limits to compensation that "should have been mandatorily increased but the increased compensation was not paid due to oversight."

On the salary authority, the opinion quotes § 9-9-11(1) (county court judge salary up to $1,000 less than circuit and chancery judges, in the board's discretion), § 9-9-11(4)(c) (a Class 1 county with a population over 39,000 per the 1970 census and where U.S. Highway 61 and Mississippi Highway 6 intersect, with salary of at least 90% of the circuit/chancery salary phased in at 10% per year, as a full-time position), and § 9-9-11(7) (notwithstanding other subsections, $1,000 less than a circuit court judge's salary, full-time). It notes circuit and chancery judge salaries increased from $136,000 to $149,000 effective January 1, 2021, under § 25-3-35, while the county court judge's salary stayed at $135,000.

Citations and references

Constitution:

• Miss. Const. § 96 (no extra compensation after services rendered)

Statutes:

• Miss. Code Ann. § 9-9-11(1) (county court judge salary general rule, up to $1,000 less than circuit/chancery)
• Miss. Code Ann. § 9-9-11(4)(c) (specific Class 1 county configuration, 90% of circuit/chancery on graduated schedule)
• Miss. Code Ann. § 9-9-11(7) (alternative authority, $1,000 less than circuit court judge)
• Miss. Code Ann. § 25-3-35 (circuit and chancery judge salaries)

Cases:

• Golding v. Salter, 234 Miss. 567, 107 So. 2d 348 (1958) (§ 96 applies to counties and municipalities)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/11/T.RossJr.-November-28-2023-County-Court-Judge-Salary.pdf

Original opinion text

November 28, 2023

Tom T. Ross, Jr., Esq.
Attorney, Coahoma County
Post Office Box 579
Clarksdale, Mississippi 38614

Re: County Court Judge Salary

Dear Mr. Ross:

The Office of the Attorney General has received your request for an official opinion.

Background

According to your request, on February 7, 2000, the Coahoma County Board of Supervisors ("Board") passed a resolution declaring that beginning with fiscal year 2000-2001, the salary of the Coahoma County Court Judge ("County Court Judge") would be set at a rate of $1,000.00 less than that provided by statute for circuit and chancery judges for the state of Mississippi. Since that time the County Court Judge was paid a salary of $1,000.00 less than that provided by statute for circuit and chancery judges for the state of Mississippi. For the 2020-2021 budget year, the Board adopted a budget setting the County Court Judge's salary at $135,000.00. Effective January 1, 2021, the salary for circuit and chancery judges increased from $136,000.00 per year to $149,000.00 per year as required by Mississippi Code Annotated Section 25-3-35. However, the County Court Judge's salary remained at $135,000.00. The County Court Judge has requested that the Board pay him an amount that would be the difference between the salary he was paid in 2021 ($135,000.00) and the amount due with the increased chancery and circuit judges' salary of $149,000.00.

Question Presented

Since Section 9-9-11 gives the Board discretion over the amount of salary the County Court Judge is paid, if the Board now wishes to pay the increased salary, does the current Board have the discretion to retroactively pay the disputed amount for the year 2021?

Brief Response

As long as the salary meets the statutory minimum of the applicable subsection of Section 9-9-11, the Board may not retroactively increase the salary of the County Court Judge. To do so would be a violation of Section 96 of the Mississippi Constitution, which prohibits extra compensation after services were rendered.

Applicable Law and Discussion

As an initial matter, Section 9-9-11(1), which you cite in your request, provides:

Except as otherwise provided in subsections (2), (3) and (4), the county court judge shall receive an annual salary payable monthly out of the county treasury in an amount not to exceed One Thousand Dollars ($1,000.00) less than the salary which is now or shall hereafter be provided for circuit and chancery judges of this state, in the discretion of the board of supervisors of said county . . . .

(emphasis added.) However, we understand from the information provided with your request that Coahoma County fits the description in Section 9-9-11(4)(c), which provides:

The office of county judge in any such Class 1 county with a population according to the 1970 federal decennial census of greater than thirty-nine thousand (39,000), and where U.S. Highway 61 and Mississippi Highway 6 intersect, shall receive an annual salary to be paid in monthly installments of not less than an amount equal to ninety percent (90%) of the annual salary which is now or shall hereafter be provided for circuit and chancery judges of the state, as follows: The salary of the county judge shall be increased by ten percent (10%) annually above the base salary of the preceding year until such time as the judge's salary is equal to the amount that is provided by this subsection. The office of county judge shall be a full-time position and the holder thereof shall not otherwise engage in the practice of law.

(emphasis added.) Section 9-9-11(7) must also be considered:

Notwithstanding any provision of this section to the contrary, the board of supervisors of any county, in its discretion, may pay its county court judge an annual salary of One Thousand Dollars ($1,000.00) less than that paid to a circuit court judge. The office of county judge shall be a full-time position, and the holder thereof shall not otherwise engage in the practice of law.

(emphasis added.) Thus, assuming that Subsection (4)(c) does in fact describe Coahoma County, the Board has the discretion to set the County Court Judge's salary in accordance with either Subsection (4)(c) or Subsection (7).

Section 96 of the Mississippi Constitution, which is relevant to your question, reads as follows:

The Legislature shall never grant extra compensation, fee, or allowance, to any public officer, agent, servant, or contractor, after service rendered or contract made, nor authorize payment, or part payment, of any claim under any contract not authorized by law; but appropriations may be made for expenditures in repelling invasion, preventing or suppressing insurrections.

This constitutional prohibition also applies to counties and municipalities. Golding v. Salter, 234 Miss. 567, 107 So. 2d 348, 356 (1958). This office has consistently opined that Section 96 of the Mississippi Constitution "strictly forbids payment of retroactive salary increases to any public employee unless such payment is clearly shown to be back pay previously due but unpaid because of administrative error." MS AG Op., Mosley at 1 (Feb. 22, 2014) (internal citations omitted). We have distinguished between "a discretionary raise that the agency could have given but, in fact did not give to the employee" and a raise mandated by statute, rule, or regulation. Id. at 2. Further, an "administrative error occurs where compensation should have been mandatorily increased but the increased compensation was not paid due to oversight." Id. (internal citations omitted). Your request suggests that the resolution passed in 2000 to set the County Court Judge's salary at a rate of $1,000.00 less than the salary for circuit and chancery judges warrants the raise in 2021. However, the resolution appears to be specific to the salary for fiscal year 2000-2001. Further, a board cannot bind a successor board to a contract unless statutorily authorized. As we understand from the facts provided with your request, the Board had the discretion to increase the County Court Judge's salary in 2021 but did not in fact do so. To retroactively increase the salary of the County Court Judge that already met the statutory minimum would be extra compensation after services were rendered, which is prohibited by Section 96 of the Mississippi Constitution.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Beebe Garrard
Beebe Garrard
Special Assistant Attorney General