2.

Neither the Mayor nor the City Council has the statutory authority to hire
attorneys outside of the City Attorney’s office without the action of the
governing authorities. Attorneys who are purportedly retained to represent
the Mayor or the City Council lack the authority to represent the City
in legal proceedings.

3. Neither the Mayor nor the City Council has the statutory authority to pay
attorneys outside of the City Attorney’s office with public funds without the
action of the governing authorities, which action must be taken prior to
incurring the legal fees and expenses. There is no authority to reimburse
after the fact unless prior authorization is granted by the governing
authorities.

4. Both the Mayor and any City Council member or combination of members
are free to engage private legal counsel at their discretion, but they must pay
them individually—not with public funds.

5. Payments to attorneys for legal fees and expenses made without prior
authorization of the governing authorities—or without ever obtaining
authorization of the governing authorities for the representation—are
unauthorized expenditures of municipal funds which could
subject the offending individuals to civil and/or criminal liability
and penalties. Additionally, such unauthorized engagements of attorneys
may deny the purported clients of expected protections such as attorney-
client privilege, work product, and the advice of counsel defense.

6. Neither the Mayor nor the City Council has the statutory authority to file
suit without the action of the governing authorities. Neither the Mayor nor
the City Council has the statutory authority to prosecute or defend a suit
except as the City. Neither the Mayor nor the City Council is an independent
legal entity with the statutory authority to sue or be sued. Suits by or against
the Mayor or the City Council are in reality suits by or against the City.
When the Mayor and City Council litigate against each other, it is the
equivalent of the City suing the City.

7. The City Attorney represents and advises the entire City of Jackson, not any
particular official or department. When the Mayor and City Council reach
governing impasses, the City Attorney is statutorily authorized to provide
advice and counsel to both the Mayor and the City Council, which can
include (among other things), seeking Attorney General opinions requested
by any City official and filing suit for declaratory judgment actions on behalf
of the City when necessary. Pursuing this approach has the added benefit of
protecting the individual officials from potential liability and saving the City
hundreds of thousands of dollars.

Page 2 of 18
I. A Municipality’s Authority to Hire Legal Counsel is Controlled by
Statute.

Two statutes1 provide authority for a municipality to hire attorneys.

Mississippi Code § 25-1-47 provides that a municipality, “within the discretion of

its governing authorities,” may provide “legal counsel for the defense of any claim,

demand, or action, whether civil or criminal, made or brought against any … municipal

officer, agent, servant, employee, or appointee as a result of his actions while acting in

[his official] capacity … and … is hereby authorized to pay all costs and expenses incident

to such … defense” (emphasis added).

Mississippi Code § 21-15-25 provides that “governing authorities [of a

municipality] … may employ counsel to represent the interest of the municipality,

should the occasion require” (emphasis added).

The governing authorities of a municipality are the council and the mayor. Miss.

Code Ann. § 21-8-7(1). See also, e.g., Miss. A.G. Op. 2003-0325, Carroll, July 14, 2003,

2003 WL 21962295; Miss. A.G. Op. 2007-00586, Joiner, November 16, 2007, 2007 WL

5425660; Miss. A.G. Op. 2006-00257, Lawrence, July 26, 2006, 2006 WL 2789833;

Miss. A.G. Op. No. 2002-0004, McLemore, January 25, 2002, 2002 WL 399748 at *2.

1Authority for municipal governing authorities to hire legal counsel has also been found
under the “Home Rule” pursuant to Miss. Code § 21-17-5, primarily in connection with
election contests. See, generally, McAdams v. Perkins, 204 So. 3d 1257, 1263 (Miss.
2016), and A.G. opinions cited therein. The same principles described in this
memorandum apply if authority under that statute is invoked.

Page 3 of 18
II. Only the Governing Authorities Can Hire Legal Counsel. The City
Council Cannot Hire Its Own Legal Counsel Without the Agreement of the
Mayor. The Mayor Cannot Hire His Own Legal Counsel Without the
Agreement of the City Council.2

The plain language of the statutes indicates that only the “governing authorities”

can retain attorneys. In other words, the mayor and a majority of the council must both

agree before a municipality can hire legal counsel. On at least four occasions, the City of

Jackson has asked for Attorney General’s opinions as to whether the City Council has the

authority to hire its own counsel. Every time, the Attorney General has stated that the

City Council may not do so.

1. In 1999, Council Member Kenneth Stokes requested an Attorney General

opinion as to “[w]hether a city council may hire attorneys under the Mayor-
Council form of government?” The Attorney General answered “that there is
no authority for the city council to appoint or employ a “council attorney” or
attorneys to advise or render legal assistance to the city council.” Miss. A.G.
Op. 99-0063, Stokes, Mar 5, 1999, 1999 WL 269199.

2. In 2002, then Council President Leslie McLemore requested an Attorney

General opinion as to whether the “City Council as a governing authority
[could] appoint a municipal attorney to represent municipal interests pursuant
to Miss. Code Ann. Section 21-15-25.” The Attorney General cited to its previous
response to Council Member Stokes and stated “[t]here is no authority for the
city council to appoint a council attorney to advise or render legal assistance to
the city council. With respect to the city attorney appointed pursuant to Section
21-15-25, we have consistently opined that such attorney represents the
municipality and advises the entire municipality. The attorney represents the
municipality, not one or more officers. We do not find authority for the city
council to appoint or employ an attorney pursuant to Section 21-15-25. In a
mayor-council municipality the mayor appoints department heads. Miss. Code
Ann. Section 21-8-23.” Miss. A.G. Op. No. 2002-0004, McLemore, January 25,
2002, 2002 WL 399748 at *2.

3. In 2006, then Council President Marshand Crisler requested an Attorney

General opinion about the permissible role of a “Policy Analyst” for the Council.

2 There are two important caveats. First, these opinions apply to the mayor or council
member hiring legal counsel in their official capacity. Any council member or the mayor
can hire legal counsel for themselves individually, paid by the individual. Second, these
opinions do not apply to the hiring of a City Attorney, which is a position appointed by
the mayor and approved by the city council, pursuant to Miss. Code § 21-15-25.
Page 4 of 18
 At the time, a licensed attorney who was a city deputy clerk was filling said role
for the Council. In its response, the Attorney General cited the previous opinion
it had provided to Council member Stokes and stated “There is no authority for
a city council to hire an attorney or other employees not specified in Section 21-
8-13. MS AG Op., Stokes (March 5, 1999). This office has previously opined that
there is no authority for a city council to hire an attorney to provide advice to
the city council under the guise of appointing a deputy council clerk.” Miss. A.G.
Op. No. 2006-00060, Crisler, March 31, 2006, 2006 WL 1184476.

4. In 2007, then Council President Ben Allen asked, “may the City Council of the
City of Jackson retain legal advisors separate from the City Attorney to provide
legal advice to the Council concerning the legality, enforceability, and
interpretation of the Employment Agreement?” The Attorney General cited its
previous response to Council President Crisler and stated “[t]his office has
previously opined that a city council has no authority to hire an attorney or
other employees not specified in section 21-8-13 of the Mississippi Code. MS
AG Op., Crisler (March 31, 2006).” Miss. A.G. Op. No. 2006-00642, Allen,
March 31, 2006, 2007 WL 852291.

The Attorney General has provided identical advice to other municipalities asking

similar questions. For example, the Attorney General has stated that a municipality is

authorized pursuant to Miss. Code § 25-1-47 to hire legal counsel and pay the costs and

expenses of the representation. “However, prior to proceeding under Section 25-1-47, the

municipality, via the governing authorities, must grant approval of such representation.”

MS AG Op 2014-00475, Brock, Dec 1, 2014, 2014 WL 9910539 at *2.

Another example is closely analogous to the current litigation that the City is

facing. In 2006, a majority of the Hattiesburg city council members “retained

independent legal counsel for the purpose of seeking a writ of mandamus against the

Mayor, in his official capacity, to require the Mayor to submit department directors to the

City Council for confirmation or rejection.” Miss. A.G. Op. 2006-00257, Lawrence, July

26, 2006, 2006 WL 2789833. The council members retained council and brought the

action in their personal capacities, not as official municipal action. See Dupree

v. Carroll, 967 So. 2d 27, 28 n.1 (Miss. 2007). The City Attorney for Hattiesburg requested

Page 5 of 18
a conflicts of interest opinion from the Mississippi Bar and a legal opinion from the

Attorney General. The request to the A.G. summarized many of the issues that the City of

Jackson faces:

As the city attorney, I have the responsibility of representing the City,

which includes defending council members and the mayor when they
are sued in their official capacity. Further, I have the duty to initiate
litigation on behalf of the City when authorized to do so by
appropriate action of the city council acting through its minutes.... If
the Mississippi Bar determines that I have a conflict of interest, then
what is the appropriate process for retaining counsel for
the mayor to defend the matter in light of the fact that
Section 21-15-25 of the Mississippi Code requires the
governing authorities to appoint or employ an attorney to
represent the interests of the municipality. In the past,
attorneys have been nominated by the mayor and confirmed by the
city council, or the city council has approved the personal service
contract of any attorney employed by the City. Should the Mississippi
Bar deem that I have a conflict, will the above process also create a
conflict of interest for any attorney employed to handle this matter?

Miss. A.G. Op. 2006-00257, Lawrence, July 26, 2006, 2006 WL 2789833 at *1.

The Attorney General opined that the mayor could proceed pursuant to § 25-1-47

by making “an official request to the council that the mayor be authorized to employ

outside legal counsel for the purposes of assisting in the defense of this lawsuit and that

the municipality pay expenses related to such defense. In the event that the payment

is not authorized by the city council, the mayor may act to employ his own

counsel, and any resolution of the payment of the expenses of the defense

would necessarily be a matter left to the discretion of the Court.” Miss. A.G. Op.

2006-00257, Lawrence, July 26, 2006, 2006 WL 2789833 at *1 (emphasis added). 3

3As discussed in more detail below, if the governing authorities—together—do not

approve of the hiring of the attorney in advance, then the municipality is not authorized
to pay the legal costs and expenses.

Page 6 of 18
 Also relevant to the City of Jackson circumstances, the A.G. further opined that

“Section 21-15-25, which governs the appointment of a municipal

attorney, would not be applicable in this situation, as the
attorney in question would not be representing the city, but
only the individual officer and only for the purposes of defending
this one matter. Section 21-15-25 does not authorize a
municipality to hire additional counsel to represent
municipal officers who are in disagreement with a decision
of the governing authority. The municipal attorney appointed
pursuant to Section 21-15-25 represents the municipality, not one or
more officers.

Miss. A.G. Op. 2006-00257, Lawrence, July 26, 2006, 2006 WL 2789833 at *1 (internal

citations omitted and emphasis added).4

More broadly, these opinions are consistent with the authority to make any hire

made by a mayor-council municipality. For example, in 2007, Deputy City Attorney

Monica Joiner requested an A.G. opinion as to whether the city council has the authority

“to enter into a contract with a certified public accountant for professional services in

addition to those authorized in Section 21-8-13(2) … to assist the council in reviewing

monthly budget reports.” Miss. A.G. Op. 2007-00586, Joiner, November 16, 2007, 2007

WL 5425660. The A.G. opinion began by citing to the Stokes opinion from March 5, 1999

and the Carroll opinion from July 14, 2003, which were both opinions concerning city

council authority with regard to hiring attorneys. The Joiner opinion stated that the

council could not on its own hire an accountant, but that the municipality could do so

4 One of the omitted citations is to Miss. A.G. No. 96-0030, Schissel, January 26, 1996,
1996 WL 50153, in which the Attorney General opined that while § 21-15-25 “authorizes
a municipality to hire additional counsel to represent the interest of the municipality,
the statute does not authorize a municipality to hire additional counsel to represent
dissenting council members in a protest” of municipal action. The members had no
authority to require the municipality pay their anticipated legal fees in a lawsuit to be
filed against the city or its officials.
Page 7 of 18
through its governing authorities, including consideration and approval by the council,

subject to veto by the mayor. Id.

In 2010, Deputy City Attorney Joiner requested a similar opinion as to whether the

City Council could “directly contract with an individual or entity for professional

budgetary review consulting services.” Miss. A.G. Op. 2010-00059, Joiner, February 24,

2010, 2010 WL 942886. The A.G. repeated more succinctly that the council lacked such

authority alone, but that the municipality could do so through its governing authorities.

III. Only the Governing Authorities Can File Lawsuits. Neither the Mayor
nor the City Council Can File Lawsuits Without the Agreement of Both.

For the same reasons that neither the Council nor the Mayor can hire legal counsel

without the approval of both the mayor and a majority of the council, neither can initiate

without that same approval.

The Hattiesburg City Council President asked the following question: “[i]n a

Mayor-Council form of government, does the Mayor have the authority to proceed with

litigation without the knowledge and/or approval of the Council?” The Attorney General

answered that “[a]ll Mississippi municipalities have the power to sue and be sued;

however, that power must be exercised by the ‘governing authorities’ of that

municipality.” Miss. A.G. Op. 2003-0325, Carroll, July 14, 2003, 2003 WL 21962295. Any

such power which must be exercised by the governing authorities of a municipality cannot

be exercised by the council or mayor alone:

The Mayor may recommend a certain course of action to the Council.

Matters must be considered and approved by the City Council, with
the Mayor having the ability to veto any such decision. Prior to taking
action, whether it be entering into a contract on behalf of the
municipality or filing a lawsuit on behalf of the city,
authorization must be given to the Mayor to take such action. All
approvals and authorizations must be accurately reflected in the
official minutes of the municipality, as the governing authorities of a

Page 8 of 18
 municipality, regardless of the form of government under which the
municipality operates, speak only through the official minutes.

Miss. A.G. Op. 2003-0325, Carroll, July 14, 2003, 2003 WL 21962295 (emphasis added).

The Mississippi Supreme Court has recognized one exception. In a mayor-council

form of government, the mayor has authority to pursue an appeal on behalf of the city

without specific authorization from the city council, though the city council retains

authority to prohibit him from doing so. See McAdams v. Perkins, 204 So. 3d 1257, 1266

(Miss. 2016).

IV. Payments for Legal Fees and Costs Which Have Been Incurred by
Attorneys Who Were Hired Without the Approval of the Mayor and a
Majority of the Council Are Unauthorized Expenditures of Municipal Funds.

The Carroll opinion goes farther than simply addressing the circumstances in

which a municipality can engage in litigation. It addresses the payment of fees to attorneys

who are hired by the mayor (or city council) alone, without proper approval by the

governing authorities. The Attorney General states that “any costs or attorneys fees

incurred in pursuit of the action would be unauthorized. As our office has previously

opined, if payment for the services of the attorney or any court costs was not

previously authorized by the Council in a contract or order approved on its

minutes, the Council has no authority to pay for these services [or] costs…. A

Mayor's actions cannot bind the municipality to such payment.” Miss. A.G. Op. 2003-

0325, Carroll, July 14, 2003, 2003 WL 21962295 (emphasis added).

The Carroll opinion reinforced a similar previous opinion applied in the context of

a mayor seeking reimbursement for legal costs. The mayor of Potts Camp hired private

counsel to defend him from criminal charges brought while he was acting in his official

capacity as mayor. After a successful defense, the mayor requested the city to pay his legal

Page 9 of 18
defense. The Attorney General stated that while § 25-1-47 authorized the municipality to

provide a defense to the mayor, the “governing authorities must grant ‘official

advance approval of such representation.’” Because the mayor did not receive

advance discretionary approval, “the mayor's employment of counsel was at his own

expense.” Miss. A.G. Op. 97-0160, Childers, May 2, 1997, 1997 WL 306719 (internal

citations omitted).

The Attorney General issued similar opinions in 2007 and 2008. In 2007, the

Booneville School District requested assistance in the payment of attorneys fees being

incurred in an annexation matter. Miss. A.G. Op. 2007-00414, Smith, Aug. 17, 2007,

2007 WL 2744786. The Attorney General opined that the municipality was authorized to

provide the legal defense of the school district but stressed that “prior to proceeding under

Section 25-1-47, the governing authority must grant ‘official advance approval of such

representation’ and there is no authority to make reimbursement without prior

authorization. Thus, to the extent that, the governing authority has provided official

advance approval of the representation, the municipality may assist in the payment of

attorneys fees for representing the School District, pursuant to Section 25-1-47.” Id.

(emphasis in A.G. Opinion, and internal citations omitted). A nearly identical opinion was

issued to the Town Attorney for the Town of Como in Miss. A.G. Op. 2008-00523, Still,

October 3, 2008, 2008 WL 4825775.

All of these opinions are consistent with the Lawrence opinion, discussed above.

Further, as discussed above, there is no statutory authority that would support

payment of legal fees for council members to file suit against the City in an effort to

prevent municipal action. See Miss. A.G. No. 96-0030, Schissel, January 26, 1996, 1996

WL 50153.

Page 10 of 18
V. Unauthorized Payments of Legal Fees and Costs Could Subject
Individual Council Members to Civil and Criminal Liability.

Building on the earlier points that only the governing authorities have the

authority to hire legal counsel, and that in order for payments to validly hired counsel to

be authorized, they must be authorized in advance by the governing authorities, the

practical question is what are the consequences of failing to follow both of these steps?

all expenditures of municipal funds must either be for payment of an

approved claim on the claims docket or for payment of a specific
appropriation made by order. Miss. Code Ann. Section 21-39-7
provides that no order for the payment or expenditure of any funds
of such municipality in payment of any indebtedness shall be made
unless such claim is filed in the claims docket as provided therein.

Miss. A.G. Op. 99-0297, Belk, July 2, 1999, 1999 WL 791693 (1999).

Failure to abide by this requirement exposes officials to personal liability. “[I]f

any member of the governing body of a municipality shall knowingly vote for the payment

of any claim not authorized by law, he shall be subject to indictment and, upon conviction,

be fined by a sum not exceeding double the amount of such unlawful claim or

appropriation, or by imprisonment in the county jail for not more than three months, or

by both such fine and imprisonment.” Miss. A.G. Op. 99-0297, Belk, July 2, 1999, 1999

WL 791693 (1999).

Based on recent information announced by City CFO Fidelis Malembeka that the

legal fund is nearly depleted, an additional point is needed. In 2006, Council President

Crisler requested a separate A.G. opinion, asking “what repercussions may occur if the

City does not maintain a balanced budget…. what happens if the City ‘dips’ into its reserve

fund over the amount allowed by state law…. what are the consequences of going into a

deficit…. [and] who will be held accountable for the above transgressions? If a suit or any

punishment is due, would it be against the executive branch - the Mayor - or the legislative

Page 11 of 18
branch - the Council?” Miss. A.G. Op. 2006-00033, Crisler, Mar 24, 2006, 2006 WL

1184470. The A.G.’s response quoted liberally from Mississippi Code § 21-35-15 and -17.

First,

“[t]he governing authorities shall at all times keep within

the sums named in their said budget and within the annual
revenue…. The amount appropriated and authorized to be
expended for any item contained in such budget, except for capital
outlay, election expenses, and payment of emergency warrants and
interest thereon, must not exceed the amount actually estimated for
such item, and the total amount appropriated and authorized to be
expended from any fund, except for capital outlay, election expenses
and payment of emergency warrants and interest thereon, shall not
exceed the total amount actually estimated for all purposes. The total
expenditures authorized to be made from any fund shall not exceed
the aggregate cash balance, in such fund at the close of the fiscal year
immediately preceding, plus the amount of estimated revenues to
accrue to such fund, as determined and fixed in the manner provided
by this chapter, and the amount which may be raised for such fund
by a lawful tax levy during the current fiscal year.

Miss. A.G. Op. 2006-00033, Crisler, Mar 24, 2006, 2006 WL 1184470 at *1 (quoting Miss.

Code § 21-35-15 (emphasis added by A.G. Opinion). Additionally,

Expenditures made, liabilities incurred, or warrants

issued in excess of any of the budget detailed
appropriations as originally and finally determined, or as
thereafter revised by transfer as provided by this chapter,
shall not be a liability of the municipality, but the official
making or incurring such expenditure or issuing such
warrant shall be liable therefor personally and upon his
official bond. The governing authorities shall not approve any
claim and the city clerk shall not issue any warrant for any
expenditure in excess of said detailed budget appropriations as
finally adopted, or as revised under the provisions of this chapter,
except upon an order of a court of competent jurisdiction or for an
emergency, as provided in this chapter. Any one or more of the
governing authorities, or clerk, approving any claim or
issuing any warrant in excess of any such budget
appropriation, except as above provided, shall forfeit to
the municipality twice the amount of such claim or
warrant, which shall be recovered in an action against
such member, or members, of the governing authorities,
or clerk, or all of them, and the several sureties on their

Page 12 of 18
 official bonds, and it shall be the duty of the governing authorities
of such municipality, or the state auditor, as the head of the state
department of audit, or the director thereof, appointed by him, or
any taxpayer of such municipality, to bring an action therefor
through the city attorney, or any attorney designated and
empowered so to do by a court of competent jurisdiction.

Miss. A.G. Op. 2006-00033, Crisler, Mar 24, 2006, 2006 WL 1184470 at *1 (quoting Miss.

Code § 21-35-17 (bold added by A.G. Opinion; underline and italics added by this

Memorandum).

The same opinion also highlights two relevant statutes which provide additional

criminal and civil penalties for violations of the municipal budget statutes:

Section 21-35-33 provides that “[a]ny person violating any of the

provisions of this chapter shall be deemed guilty of a misdemeanor
and punished as provided by law, which shall be in addition to any
other penalty now or hereafter imposed by law.” Section 21-35-17
states that a member of the governing authority authorizing an
expenditure in excess of the budget appropriation, or the clerk who
issues a warrant in excess of the budget appropriation, shall forfeit
to the municipality twice the amount of the claim authorized or
warrant paid…. the ultimate responsibility for any violations of the
provisions of Section 21-35-1 et seq. will rest with either the members
of the governing authority authorizing unlawful expenditures in
excess of budgeted amounts or with the clerk (or the appropriate
individual of the fiscal or finance department established pursuant
to Section 21-17-15) in issuing warrants in excess of budgeted
amounts, or with all such officers or employees.

Miss. A.G. Op. 2006-00033, Crisler, Mar 24, 2006, 2006 WL 1184470 at *2 (quoting

Miss. Code § 21-35-15 (emphasis added by A.G. Opinion).

Page 13 of 18
VI. If the City Council Hires an Attorney Without Proper Approval by the
Governing Authorities, (1) the Attorney Is Not Authorized to Represent the
City in a Legal Proceeding; (2) Communications Between Council Members
and the Attorney May Not Be Protected by Attorney-Client Privilege; (3) the
Written Research Notes and Memoranda of the Attorney May Not Be
Protected as Work Product; and (4) the Defense of Council Members That
They Were Acting on Advice of Counsel May Not Be Available.

In responding to then Council President Crisler’s question, the Attorney General

stated that the licensed attorney who had been hired as a deputy clerk and was being

described by Mr. Crisler as a “policy analyst”

would not be authorized to represent the city in a legal proceeding.

Communications between a deputy clerk/policy analyst and the city
council or members thereof would likely not constitute attorney-
client communications and would not be subject to the protections
afforded to attorney-client communications. See Rule 502, Miss.
Rules of Evidence (2005). Similarly, the written research notes and
memoranda of a deputy clerk/policy analyst would likely not
constitute an attorney's work product and would not be subject to the
protections afford to an attorney's work product. See Rule 26(b)(3),
Miss. Rules of Civil Procedure (2005).

There may be occasions in the course of litigation against a

municipality and its officials in which the mayor and council
members may wish to assert certain defenses and seek certain
protections from liability on the basis that their previous actions,
which may be at issue in the litigation, were based on advice of
counsel. See Murphree v. Federal Ins. Co., 707 So.2d 523 (Miss.
1997). Such defenses and protections afforded to municipal officials
acting on the advice of counsel would likely not be available to parties
acting on advice of a deputy clerk/policy analyst.

Miss. A.G. Op. 2006-00060, 2006 WL 1184476 at *1-2.

The Attorney General recommended consulting the Mississippi Bar for more

information as to those issues. The situation described by Mr. Crisler is different than

one in which the Council hires an attorney to serve as their counsel (even without

authorization to do so), so the answers to these questions remain uncertain. Nevertheless,

a court could find that an attorney hired without legal authorization does not create a

Page 14 of 18
valid attorney-client relationship, so that privileges concerning confidentiality, work

product, and advice do not attach, and the Council should be aware of this risk.

To the extent that these consequences would attach to the council’s unauthorized

hiring and paying of legal counsel, the same consequences would presumably attach to

the mayor’s unauthorized hiring and paying of legal counsel.

VII. Only the City of Jackson is a Proper Party to Sue and Be Sued. Neither
the City Council nor the Mayor Is an Independent Entity Capable of Suing
and Being Sued.

Federal courts frequently are tasked with determining whether a defendant is a

real party capable of being sued. A common example is when an individual sues for civil

rights violations alleging use of excessive force or other wrongful conduct by police

officers. Many such suits are filed naming individual police officers or other government

officials in their official capacities or naming police departments as defendants. When

applying Mississippi law, federal courts have found that a suit against a City department

(such as the Jackson Police Department) or a municipal employee in his official capacity

is simply a suit against the applicable governmental entity—that is, the municipality.

For example, in a recent suit brought against the City of Meridian, Kemper County,

the Kemper County Sheriff’s Department, the Meridian Police Department, the Kemper

County Board of Supervisors, and certain Meridian City Council members in their official

capacities, a Mississippi federal court dismissed the claims against all Defendants except

for the City of Meridian and Kemper County. See Rowry v. City of Meridian, 2023 WL

2605021 at *3 (S.D. Miss. 2023). The Court’s decision was based on Mississippi law that

(1) a “Sheriff's Department does not enjoy a separate legal existence, apart from [the]

County” and is therefore not a political subdivision amenable to suit; (2) police

departments are not separate legal entities amenable to suit; (3) “a county board of

Page 15 of 18
supervisors is not a separate legal entity capable of being sued”; and (4) a city council

is not a separate legal entity amenable to suit. Id. (internal citations omitted).5

In reaching these decisions, courts have relied on Mississippi law. In order for a

lawsuit to proceed against an entity, the entity must “enjoy a separate legal existence,” as

defined by State law. Upchurch, 2011 WL 5082224 at *2. A suit cannot proceed against a

municipal department unless the department is considered by Mississippi law to be an

entity separate from the city. Id. at *3. See also Nungesser Indus. LLC v. City of Jackson,

2019 WL 671153 at *3 (Ct. App. Miss. 2019) (“[I]n every action there must be a real

plaintiff who is a person in law and who is possessed of a legal entity and capacity to sue.”)

Municipalities are statutory creations and have only the powers which are granted

by statute. Hemphill Const. Co. Inc. v. City of Laurel, 760 So. 2d 720 (Miss. 2000). No

5In making its ruling, the Court relied on a number of Mississippi state court decisions,
as well as federal court decisions applying Mississippi law. See Brown v. Thompson, 927
So. 2d 733, 737 (Miss. 2006); Cunningham v. Hinds County Sheriff's Dept., No. 3:12-cv-
634, 2012 WL 5384642, at *2 (S.D. Miss. Nov. 1, 2012); Higginbotham v. City of
Louisville, Mississippi, No. 1:19-cv-24, 2019 WL 4934949, (N.D. Miss Oct. 7, 2019);
Fuhgetaboutit, LLC v. Columbus Police Dep't, No. 1:10-cv-207, 2011 WL 46529665, at *2
(N.D. Miss. Sept. 28, 2011); and Smith v. Simpson County, No. 3:17-cv-1009, 2018 WL
8997441, at *2 (S.D. Miss May 21, 2018). See also Stewart v. Jackson County,
Mississippi, 2008 WL 4287112 (S.D. Miss. 208); Upchurch v. City of Moss Point, 2011
WL 5082224 at *2-3 (S.D. Miss. 2011); Bradley v. City of Hattiesburg Police Dept, 2014
WL 1050411 at *3 (S.D. Miss. 2014).

Assuming that appropriate facts are pleaded, the suits against actual governmental
entities proceed. So, for example, a suit against the police chief in his official capacity is
really a suit against the City. The chief would be dismissed, but the suit against the City
would continue. See, e.g., Goodman v. Harris County, 571 F.3d 388, 395 (5th Cir. 2009)
(“an official-capacity suit is, in all respects other than name, to be treated as a suit against
the entity. It is not a suit against the official personally, for the real party in interest is the
entity.”) The same would be true in a suit against the city council or mayor. The council
and mayor would be dismissed, but the suit against the City could continue.

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statute grants a municipal mayor or city council (or any other municipal officer or

department) the power to sue or be sued. Mississippi statutes define the powers of

municipalities. Municipalities, but not officials, departments, or divisions thereof, have

the power to sue and be sued. See Mississippi Code § 21-17-1(1). No court has identified

any statute which would grant the power to sue and be sued to a municipal official or

department.

For unknown reasons, these arguments appear not to have been raised in the

various lawsuits involving the Council and Mayor as adversaries. This office believes that

the arguments should be raised going forward, even if it requires the City Attorney to

intervene to raise the issue on behalf of the City.

VIII. The City Attorney Represents and Advises the Entire Municipality.

In its response to Council Member Stokes’ request in 1999, the Attorney General

also cited previous opinions and stated that the City Attorney “represents and advises the

entire municipality. The attorney represents the municipality, not one or more of its

officers.” Miss. A.G. Op. 99-0063, 1999 WL 269199 at *2. The Attorney General repeated

in its opinion to Council President McLemore in 2002 that the city attorney “represents

the municipality and advises the entire municipality. The attorney represents the

municipality, not one or more officers. Miss. A.G. Op. No. 2002-0004, McLemore,

January 25, 2002, 2002 WL 399748 at *2.

The statement has been made repeatedly by the Attorney General in more cases

than can be cited.

CONCLUSIONS AND RECOMMENDATIONS

Most of the conclusions of this memorandum have already been stated in the

summary section and will not be repeated here. However, this Office believes that the

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growing practice of both the City Council and the Mayor hiring attorneys and paying them

with public funds to sue each other or to “intervene” in City actions where the City

Attorney is providing representation to the City has no legal basis, whether statutory or

otherwise. The practice is also harmful to the City’s governance and finances.

To the extent that the governing authorities desire an answer to a legal question

beyond that provided by the City Attorney, an opinion can be obtained from the Attorney

General, with or without the assistance of the City Attorney. To the extent that the

governing authorities believe a declaratory judgment is necessary to the City’s

governance, one can be sought on behalf of the City, with the representation of the City

Attorney. None of these actions will drain the City’s limited resources.

However, if any of the governing officials insist on hiring outside counsel without

the authorization of the governing authorities and on paying outside counsel with public

funds, they should be aware of the sizable body of law that suggests that such actions are

unlawful and carry sizable risks to the individuals pursuing or approving such actions.

Attorney General opinions are not the law, and they can be wrong. However, these

are areas of law with little or no caselaw providing a contrary interpretation. I am not

aware of any statutes which would suggest that the opinions are incorrect. Rather, these

are areas with numerous repeated opinions which appear to be rationally determined and

consistent with Mississippi statutes. A court is likely to reach the same conclusions.

If any of our City officials have questions about any of the subjects raised in this

memorandum, or related subjects, we are available to discuss with them.

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