                     IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2015-CA-00966-SCT

CAROLYN McADAMS

v.

SHERIEL F. PERKINS


DATE OF JUDGMENT:                            05/11/2015
TRIAL JUDGE:                                 HON. MARGARET CAREY-McCRAY
TRIAL COURT ATTORNEYS:                       WILLIE JAMES PERKINS, SR.
                                             H. DONALD BROCK, JR.
COURT FROM WHICH APPEALED:                   LEFLORE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                      MARC A. BIGGERS
ATTORNEY FOR APPELLEE:                       WILLIE J. PERKINS, SR.
NATURE OF THE CASE:                          CIVIL - OTHER
DISPOSITION:                                 REVERSED AND RENDERED - 12/08/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



       EN BANC.

       LAMAR, JUSTICE, FOR THE COURT:

¶1.    Carolyn McAdams, mayor of the City of Greenwood, appeals a decision of the Leflore

County Circuit Court. The circuit court held that the Greenwood City Council’s decision to

hire legal counsel to represent the city’s interest in an election contest exceeded its power and

violated the Mississippi Constitution. Finding error in the trial judge’s interpretation of

Mississippi Code Sections 25-1-47 and 21-17-5, we reverse and render.

                        FACTS AND PROCEDURAL HISTORY
¶2.    The City of Greenwood held a general election in which two candidates sought the

office of mayor: Carolyn McAdams, the incumbent, and Sheriel Perkins. McAdams won

the election, receiving 52.05 percent of the votes cast. Perkins filed an election contest and

named McAdams, in her individual capacity, as the sole defendant.1 McAdams hired Butler

Snow, LLP, to represent her in the election contest.

¶3.    The Greenwood city attorney requested an attorney general opinion,2 asking if the

municipality could “(1) reimburse the Mayor for legal fees and costs she has incurred to

defend the state-action allegations in federal court; and (2) retain [counsel] . . . to represent

the City’s interest in upholding the validity of the municipal election and the actions of its

elections officials, going forward.” The Attorney General’s Office opined that the council

could employ a law firm to defend claims made against municipal officers acting in their

official capacity under Mississippi Code Section 25-1-47. Further, the attorney general

opined the council could hire a law firm under Mississippi Code Section 21-17-5 after it

determined it had an interest in the election contest. Lastly, the attorney general opined the

council could not reimburse the mayor for her personal attorney’s fees.

¶4.    After receiving the attorney general opinion, the Council passed a resolution

employing Butler Snow, LLP—the same firm employed by McAdams—“to represent the

City’s interest in upholding the validity of the municipal election and actions of its election

officials.” Though not a party to the election contest, the Greenwood City Council

       1
         In Fisher v. Crowe, we held that “[t]he only proper defendant in an election contest
is the successful party in the election.” Fisher v. Crowe, 303 So. 2d 474, 475 (Miss. 1974).
       2
        Miss. Att’y Gen. Op. No. 2014-00475, 2014 WL 9910539 (Dec. 1, 2014).

                                               2
determined it had an interest in the election contest and that the claims asserted in Perkins’s

election contest “involve[d] the actions of various city officials carrying out their official

duties as members of the Elections Commission, poll workers, as well as the Municipal Clerk

and his employees[.]” Perkins appealed to the circuit court by filing a Bill of Exceptions

challenging the council’s resolution. In her capacity as mayor, McAdams certified the Bill

of Exceptions, as procedurally required by Mississippi Code Section 11-51-75. See Miss.

Code Ann. § 11-51-75 (Rev. 2012).

¶5.    The circuit court reversed the council’s decision to hire Butler Snow, finding the

resolution to be beyond its scope or powers and in violation of the Mississippi Constitution.

The circuit court found (1) Section 25-1-47 prohibited the council from authorizing the

employment of counsel to defend the election contest; (2) the council’s hiring of Butler Snow

was an expenditure of public funds for a private purpose in violation of the Mississippi

Constitution; and (3) that the City of Greenwood had no legitimate legal interest in the

election contest, nor any liability resulting therefrom.

¶6.    Following the circuit court’s decision, the council tabled a “Resolution to Approve

an Appeal of the Order and Opinion.” Three days later, McAdams, in her official capacity,

filed a Notice of Appeal, and she now presents the following issues:3

       I. Whether Mississippi Code Section 25-1-47 authorized the Greenwood
       City Council to employ counsel for the defense of claims challenging the
       conduct of city officials carrying out their official duties during the June 4,
       2013, mayoral election.



       3
       This is the only suit at issue in this appeal; Perkins’s underlying election contest is
not before us.

                                              3
       II. Whether Mississippi Code Section 21-17-5, when read in pari materia
       with Mississippi Code Section 25-1-47 and as interpreted by the Mississippi
       Attorney General, authorized the Greenwood City Council to employ counsel
       to defend the city’s interests in the election contest challenging the conduct of
       city officials carrying out their official duties during the June 4, 2013, mayoral
       election.

       III. Whether the circuit court committed reversible error when it substituted
       its judgment for that of the Greenwood City Council by holding as a matter of
       law that the city “has no legitimate interest” in the election contest challenging
       the June 4, 2013, Greenwood mayoral election when the city resolved that it
       did have an interest.

For clarity, we have combined our discussion of McAdams’s first two issues. And because

we find those issues dispositive, we decline to address the third issue. Perkins also has filed

a Motion to Dismiss this appeal, which we address last.

                                STANDARD OF REVIEW

¶7.    The bill of exceptions serves as the record on the appeal of a decision by a municipal

authority. Stewart v. City of Pascagoula, 206 So. 2d 325, 328 (Miss. 1968). Questions of law

are reviewed by this Court de novo. Nelson v. City of Horn Lake ex. rel. Bd. of Aldermen,

968 So. 2d 938, 942 (Miss. 2007). Statutory interpretation is a question of law. Id. (citing

Weiner v. Meredith, 943 So. 2d 692, 694 (Miss. 2006)). But decisions by the governing

authorities of a municipality are subject to limited review. McWaters v. City of Biloxi, 591

So. 2d 824, 827 (Miss. 1991). Our courts will overturn a decision by municipal authorities

only if the decision (1) was beyond its scope or power; (2) violated the constitutional or

statutory rights of the aggrieved party; (3) was not supported by substantial evidence; or (4)

was arbitrary or capricious. Baymeadows, LLC v. City of Ridgeland, 131 So. 3d 1156, 1169

(Miss. 2014).


                                               4
                                        ANALYSIS

¶8.    As an initial matter, Perkins argues that McAdams, by certifying the Bill of

Exceptions, is estopped from raising her issues on appeal. Perkins alleges that McAdams

certified (1) the council had voted to pay McAdams’s attorney’s fees; (2) that the council’s

resolution is in violation of state law; and (3) that any reliance on the requested attorney

general opinion is misplaced. McAdams disagrees, arguing her signature did not constitute

an agreement that the council’s actions were unlawful. We agree with McAdams.

¶9.    Mississippi Code Section 11-51-75 states:

       Any person aggrieved by a judgment or decision of the . . . municipal
       authorities of a city, town, or village, may appeal within ten (10) days from the
       date of adjournment at which session the . . . municipal authorities rendered
       such judgment or decision, and may embody the facts, judgment and decision
       in a bill of exceptions which shall be signed by the person acting as president
       . . . of the municipal authorities.

Miss. Code Ann. § 11-51-75 (Rev. 2012) (emphasis added). We previously have analyzed

the duty of a mayor in certifying a bill of exceptions:

       The general rule with respect to bills of exceptions when presented to the
       proper official for signature appears to be that such officer or official cannot
       arbitrarily refuse to sign and return the bill of exceptions merely because he
       deems the same to be incorrect, but that it is his duty to point out wherein he
       deems the same to be incorrect, and to note his corrections thereon, and to sign
       the same as correct.
       ...

       If he deemed incorrect the bill of exceptions presented to him, he was under
       an implied duty to point out wherein he deemed the same incorrect so that the
       aggrieved parties might have an opportunity to amend the same, and then to
       sign the same as corrected.




                                              5
Wilkinson Cty. Bd. of Supervisors v. Quality Farms, Inc., 767 So. 2d 1007, 1012 (Miss.

2000) (quoting Reed v. Adams, 111 So. 2d 222, 224–25 (Miss. 1959)).

¶10.   But our Reed and Wilkinson County decisions do not hold that, by certifying a bill

of exceptions, a party confesses that the opposing party’s legal arguments are correct.

McAdams argues correctly that, while “the bill of exceptions reflects the actions taken and

the decision made, such signature does not constitute an agreement with Perkins that the

resolution was prohibited by law or was otherwise improper.” Therefore, McAdams is not

estopped from raising her issues on appeal, and we turn now to the merits.

¶11.   McAdams first asks this Court to determine whether Mississippi Code Section 25-1-

47 permitted the council to hire Butler Snow. Section 25-1-47 reads, in pertinent part, as

follows:

       Any municipality of the State of Mississippi is hereby authorized and
       empowered, within the discretion of its governing authorities, to investigate
       and provide legal counsel for the defense of any claim, demand, or action,
       whether civil or criminal, made or brought against any state, county, school
       district, or municipal officer, agent, servant, employee, or appointee as a result
       of his actions while acting in the capacity of such officer, agent, servant,
       employee, or appointee; and such municipality is hereby authorized to pay for
       all costs and expenses incident to such investigation and defense.

Miss. Code Ann. § 25-1-47(1) (Rev. 2010) (emphasis added).

¶12.   The trial judge found that Section 25-1-47 “clearly prohibit[ed] the Council from

authorizing the employment of legal counsel to defend the election contest” because the

election contest was only an action between private litigants (i.e., no city officials were

named as defendants) and no claims were asserted against McAdams in her official capacity.

Perkins agrees with the trial court, arguing further that her election contest did not seek a

                                               6
demand against city officials. In essence, Perkins asks this Court to interpret Section 25-1-47

narrowly and hold that a “claim, demand, or action [is] . . . made or brought” only where city

officials actually are named as defendants in the litigation. See id.

¶13.   But McAdams argues that the council’s resolution shows that Perkins, in her election-

contest complaint, asserted claims against municipal officers which arose out of the

municipal officers’ official actions. Though the election-contest complaint is not part of the

record, the council’s resolution attached to the Bill of Exceptions states “[Perkins] contends

that various violations of the Mississippi Election Code occurred, [involving] the handling

of affidavit and absentee ballots, ballot boxes and certain polling procedures.” Further, the

resolution states that “although the Mayor is named as the only defendant in the case, the

claims in the present State Court Complaint also involve the actions of various City officials

carrying out their official duties as members of the Elections Commission, poll workers, as

well as the Municipal Clerk and his employees.”

¶14.   We find that the plain language of Section 25-1-47 permits the council to hire legal

representation even if no city officials are named as defendants in a lawsuit. We have found

no caselaw directly on point, but the attorney general has opined that “the use of the word

‘claim’ in the statute is intended to express a broader range of authority to negotiate and

settle than use of the word ‘litigation’ would have entailed.” Rodney E. Shands, Miss. Att’y

Gen. Op., 1990 WL 548098 (Oct. 22, 1990). The attorney general further opined that it did

“not think the Legislature intended to require a lawsuit be filed, with all the expenses




                                              7
attendant to litigation, before a public body could avail itself of [Section] 25-1-47 of the

Mississippi Code of 1972.” Id.

¶15.    Though attorney general opinions are not binding, they may be considered by this

Court and we find the attorney general’s opinion is persuasive here. See City of Durant v.

Laws Constr. Co., 721 So. 2d 598, 604 (Miss.1998). To require that formal litigation be filed

against the city before the council may retain legal representation pursuant to Section 25-1-47

places a significant limitation on the council’s authority; such a limitation does not conform

to the plain language of Section 25-1-47. Had the Legislature intended otherwise, it would

have limited the language of the statute to “demand or action . . . brought.” See Miss. Code

Ann. § 25-1-47(1). While it is true that a municipal officer is not a proper party to an election

contest, we find that Section 25-1-47 permits the governing authorities of a municipality to

employ legal representation to defend “claims” challenging the official actions of municipal

officers, regardless of whether municipal officers are named defendants.

¶16.   We also find that Mississippi Code Section 21-17-5 likewise permitted the council’s

resolution. Section 21-17-5 states, in pertinent part:

       The governing authorities of every municipality of this state shall have the
       care, management and control of the municipal affairs and its property and
       finances. In addition to those powers granted by specific provisions of general
       law, the governing authorities of municipalities shall have the power to adopt
       any orders, resolutions or ordinances with respect to such municipal affairs,
       property and finances which are not inconsistent with the Mississippi
       Constitution of 1890, the Mississippi Code of 1972, or any other statute or law
       of the State of Mississippi, and shall likewise have the power to alter, modify
       and repeal such orders, resolutions or ordinances.




                                               8
Miss. Code Ann. § 21-17-5(1) (Rev. 2015) (emphasis added). Under Section 21-17-5, known

as the “Home Rule,”4 the governing authorities may adopt resolutions pertaining to municipal

finances as long as the resolutions do not violate Mississippi law. See id. As with Section 25-

1-47, there is little caselaw on the Home Rule’s application. But there are numerous attorney

general opinions for this Court to consider. In 1991, the attorney general opined that

Mississippi Code Section 19-3-475 permitted a board of supervisors to employ counsel to

represent the county’s interest in an election contest. James W. Burgoon, Jr., Miss. Att’y

Gen. Op., 1991 WL 578191 (Nov. 12, 1991); see also Miss. Att’y Gen. Op. 2008-00695,

2008 WL 5636336 (Jan. 30, 2008) (opining the county may approve the payment of legal

fees to uphold an election so as to avoid a special election). Two years later, the attorney

general further opined that municipal authorities have the discretionary authority, under

Section 21-17-5, to employ legal counsel to represent a municipality’s interest in an election



       4
        See Mayor and Bd. of Aldermen, City of Ocean Springs v. Homebuilders Ass’n of
Miss., Inc., 932 So. 2d 44, 50 (Miss. 2006).
       5
           The board of supervisors shall have the power, in its discretion, to employ
           counsel in all civil cases in which the county is interested, including
           eminent domain proceedings, the examination and certification of title to
           property the county is acquiring and in criminal cases against a county
           officer for malfeasance or dereliction of duty in office, when by the
           criminal conduct of the officer the county may be liable to be affected
           pecuniarily, with the counsel to conduct the proceeding instead of the
           district attorney, or in conjunction with him, and to pay the counsel out of
           the county treasury or the road fund that may be involved reasonable
           compensation, or if counsel so employed is retained on an annual basis as
           provided in this subsection, reasonable additional compensation for his
           services.
Miss. Code Ann. § 19-3-47(b) (Rev. 2012) (emphasis added).

                                                9
contest. Miss. Att’y Gen. Op. No. 93-0499, 1993 WL 294292 (July 14, 1993); see also Miss.

Att’y Gen. Op. No. 97-0469, 1997 WL 549288 (Aug. 8, 1997) (opining the same). We also

note Mississippi Code Section 21-15-25, which states

       [t]he governing authorities may annually appoint an attorney-at-law for the
       municipality, prescribe his duties and fix his compensation, and/or they may
       employ counsel to represent the interest of the municipality, should the
       occasion require. For services and duties which the regular city attorney is not
       required to perform as a result of his employment as such, and which are not
       covered by the regular compensation paid him, such municipal attorney may
       be employed and compensated additionally.

Miss. Code Ann. § 21-15-25 (Rev. 2015) (emphasis added). Based on the foregoing, we find

that Section 21-17-5 also permitted the council’s resolution to hire Butler Snow to represent

its interest in the election contest.

¶17.   In reaching this conclusion, we acknowledge the trial judge’s concern that

McAdams’s and the attorney general’s interpretation of these statutes effectively would allow

a municipality to pick and choose which cases the city will defend. In her order, the trial

judge noted

       [a]nother troubling aspect of the Attorney General’s opinion of § 25-17-5 is
       that it effectively allows municipalities to subjectively determine which
       election contests they will defend even when cases present identical claims.
       The City Council, on a case by case basis, has the discretion to determine: first,
       whether municipal interests are involved; then, whether the city will expend
       public funds to defend. For example, if the results of the June 2013 election
       were the opposite and an otherwise identical election contest was filed, the
       Council could simply ignore it or refuse to defend. Winning candidates
       supported by a majority of the Council could routinely gain publicly paid
       counsel to defend or at least buttress their case. On the other hand, such
       support could be withheld from winners who are not the majority’s choice.
       Thus, the City Council’s discretion constitutes misuse of municipal authority
       regarding the expenditure of public funds for private purposes in clear
       violation of the Mississippi Constitution.

                                              10
But simply put, while valid, these concerns cannot override the statutory discretion given to

the governing authorities of a municipality.

¶18.   Moreover, in Madison County v. Hopkins, we also examined the broad discretion

Section 25-1-47 provides. Madison Cty. v. Hopkins, 857 So. 2d 43 (Miss. 2003). Though

that case dealt with a county rather than a municipality, we considered numerous attorney

general opinions which opined that Section 25-1-47 “permits, but does not require, a county

to provide legal counsel for the defense of any claim against an officer or employee of a

county while acting in his official capacity . . . .” Id. at 50 (emphasis added). We also noted

that holding legal counsel “must be provided . . . completely disregards the statutorily

granted discretion provided to the counties.” Id. at 51 (emphasis added). We concluded by

noting that it is the county officials who “are charged with control of the county’s purse

strings.” Id.

¶19.   We acknowledge Perkins’s argument and the trial court’s finding that the council’s

resolution authorized a donation of public funds to McAdams and therefore violated the

Mississippi Constitution. Perkins argues that “[t]he passing of the resolution under the

pretext of protecting the interest of the city in the private litigation is noting [sic] short of a

back door approach . . . to pay . . . McAdams’ [s] attorney’s fees.” The trial court agreed,

finding that “what the City of Greenwood has resolved to do is financially assist Mayor

McAdams in marshaling evidence and retaining legal services to defend” against Perkins’s

claim. The trial court further reasoned that, because Butler Snow is providing “overlapping”

legal services to McAdams and the council, the resolution was unlawful. We disagree.



                                                11
¶20.   The constitutional provision at issue states:

       No law granting a donation or gratuity in favor of any person or object shall
       be enacted except by the concurrence of two-thirds of the members elect of
       each branch of the Legislature, nor by any vote for a sectarian purpose or use.

Miss. Const. art 4, § 66.

¶21.   “Donations by a municipality are unlawful” and violate the Mississippi Constitution.

Nichols v. Patterson, 678 So. 2d 673, 682 (Miss. 1996). Indeed, a “municipal board cannot

lawfully give away public money.” Trowbridge v. Schmidt, 34 So. 84, 84 (Miss. 1903). A

donation or gratuity is characterized by an absence of consideration, i.e., “the transfer of

money or other things of value from the owner to another without any consideration.” Craig

v. Mercy Hosp.-St. Mem’l, 45 So. 2d 809, 814 (Miss. 1950). And though the parties have

supplied us with no caselaw on point, we agree with the attorney general that a municipality

may not pay for the attorney’s fees incurred by a candidate in an election contest; the

payment of such fees is a donation of public funds to a private individual. See, e.g., Miss.

Att’y Gen. Op. No. 2014-00475; Miss. Att’y Gen. Op. No. 97-0469; Everett T. Sanders,

Miss. Att’y Gen. Op., 1991 WL 578171 (Dec. 18, 1991) (emphasis added).

¶22.   Though Perkins asserts numerous times that the City authorized payment of

McAdams’s attorney fees, the resolution passed by the Council shows otherwise. The

resolution states that “the City of Greenwood is hereby authorized to retain the services of

Butler Snow, LLP for representation of the City’s interests in reference to the election

contest.” Nowhere in the resolution does it state that the council is paying for McAdams’s

fees as well. Though the Greenwood city attorney asked if the council could pay McAdams’s



                                             12
attorney’s fees in his letter to the attorney general, the council’s ultimate decision never

authorized the payment of such fees.

¶23.     Further, the fact that Butler Snow’s services may provide “overlapping support” to

both McAdams and the council does not transform the council’s resolution into an unlawful

donation. Though it is possible that the council’s hiring of the same law firm may decrease

the costs McAdams must pay to her attorneys, it also may decrease the costs the city will

incur. So in sum, we find that Sections 25-1-47 and 21-17-5 permitted the council to pass the

resolution at issue here, and we therefore reverse the judgment of the Leflore County Circuit

Court.

¶24.     Finally, we address Perkins’s motion to dismiss this appeal. Perkins argues that

McAdams “lacks authority to pursue this appeal . . . on behalf of the City of Greenwood and

the Greenwood City Council where the Greenwood City Council has authorized no such

appeal.”6 But Perkins cites no authority to support her assertion that McAdams—the mayor

and executive officer of the municipality—has no authority to pursue an appeal on behalf of

the city without specific authorization from the council. And Section 21-8-15 states that

“[t]he executive power of the municipality shall be exercised by the mayor, and the mayor

shall have the superintending control of all the officers and affairs of the municipality . . . .”

Miss. Code Ann. § 21-8-15 (Rev. 2015) (emphasis added). In short, we find nothing in the

         6
        While it is clear that the crux of Perkins’s dismissal argument is that McAdams lacks
authority to pursue this appeal on the City’s behalf, she also states that McAdams “is without
standing to maintain an appeal on behalf of the City . . . .” (emphasis added). But to the
extent that McAdams also is making a standing argument, we are not persuaded. McAdams
is a named appellee to the Bill of Exceptions filed by Perkins, and she therefore has standing
to pursue this appeal.

                                               13
statutes governing the mayor-council form of government or the relevant caselaw that

prohibits a mayor from pursuing an appeal on behalf of a municipality, absent the council’s

express prohibition. And there is no evidence in this record that the council voted to prohibit

this appeal, or that the council objects to McAdams pursuing it here. As such, we deny

Perkins’s motion to dismiss.

                                      CONCLUSION

¶25.     For these reasons, we reverse and render the judgment of the Leflore County Circuit

Court.

¶26. REVERSED AND RENDERED.

    WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., COLEMAN,
MAXWELL AND BEAM, JJ., CONCUR. KITCHENS, J., DISSENTS WITH
SEPARATE WRITTEN OPINION JOINED BY KING, J.


         KITCHENS, JUSTICE, DISSENTING:

¶27.     The Greenwood City Council tabled the resolution to appeal the decision of the

Circuit Court of Leflore County.7 Accordingly, Carolyn McAdams, who filed a notice of

appeal in her official capacity as mayor of the City of Greenwood, acted without authority

in filing the present appeal absent the approval of the Greenwood City Council. Because I

would grant Sheriel Perkins’s motion to dismiss, I respectfully dissent.

¶28.     The City of Greenwood, Mississippi, operates under a “mayor-council” form of

government. Greenwood, Miss., Ordinances ch. 2, art. I, div. 1, § 2-1 (2010). In a mayor-

         7
        The proposed resolution stated that “the City Council of the City of Greenwood
hereby approves/does not approve appealing the Order and opinion issued in Cause No.
2014-0074(CM)(L) to the Mississippi Supreme Court.”

                                              14
council form of municipal government, the mayor exercises “[t]he executive power of the

municipality,” wielding “superintending control of all the officers and affairs of the

municipality” and ensuring that “the laws and ordinances are executed.” Miss. Code Ann.

§ 21-8-15 (Rev. 2015). See also Greenwood, Miss., Ordinances ch. 2, art. I, div. 1, § 2-9

(2010) (“The executive and administrative power and duties of the municipality shall be

exercised by the mayor”). The law requires the mayor to report annually to the council and

the public on the work of the previous year, to make recommendations for action by the

council “as he may deem in the public interest,” and to supervise all of the departments of

the municipal government. Miss. Code Ann. § 21-8-17(1) (Rev. 2015); Miss. Code Ann. §

21-15-7, -9 (Rev. 2015).

¶29.   The legislative power of the municipality is exercised by the city council, which

authority is “executed by a vote within a legally called meeting.” Miss. Code Ann. § 21-8-9

(Rev. 2015); Miss. Code Ann. § 21-8-13(4) (Rev. 2015). The council is responsible for

requiring, at the end of each fiscal year, “a full and complete examination of all the books,

accounts and vouchers of the municipality to be made by a competent, independent

accountant or accountants who shall be appointed by the council.” Miss. Code Ann. § 21-8-

13(2) (Rev. 2015). The council may, by ordinance, “revise, repeal or change” appropriations

and may make additional appropriations. Miss. Code Ann. § 21-8-13(3) (Rev. 2015).

¶30.   The mayor retains veto power and must either approve an ordinance or return it to the

council accompanied by “a statement setting forth his objections thereto . . . .” Miss. Code




                                             15
Ann. § 21-8-17(2) (Rev. 2015). The council, however, can, “by a vote of two-thirds (2/3) of

the members present and voting resolve to override the mayor’s veto.” Id.

¶31.   The Mississippi Attorney General has opined that “[p]rior 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.” As such, “[a]ll approvals

and authorizations must be accurately reflected in the official minutes of the municipality,

as the governing authorities of a municipality, regardless of the form of government under

which the municipality operates, speak only through the official minutes.” Authority of

Mayor in Mayor-Council Municipality, Op. Miss. Att’y Gen. No. 2003-0325 (July 14, 2003).

It is true that “an attorney general’s opinion is not binding on this Court;” however “it is

persuasive . . . .” Dupree v. Carroll, 967 So. 2d 27, 31 (Miss. 2007). Indeed, this Court has

recognized the existence of checks and balances, a separation of powers, between the mayor

and the city council. Id. at 30-31.

¶32.   In the case of Gaddy v. Bucklew, 580 So. 2d 1180, 1180 (Miss. 1990), three members

of the City Council of Laurel, Mississippi, appealed a judgment of the Circuit Court of the

Second Judicial District of Jones County, “which limited the appointment powers of the

Council and held certain actions taken by the Council to be void.” A motion to dismiss the

appeal was filed. Id. at 1182. This Court considered whether the members of the city council

could, in their official capacities, prosecute an appeal. Id. The Court cited Mississippi Code

Section 21-8-11(2), which provided8 that “the council may not ‘adopt any motion, resolution

       8
       Section 21-8-11(2) presently provides that “the affirmative vote of a majority of the
quorum at any meeting shall be necessary to adopt any motion, resolution or ordinance, or

                                               16
or ordinance, or pass any measure whatever” except by ‘the affirmative vote of a majority

of members present at any meeting.’” Id. (citing Miss. Code Ann. § 21-8-11(2) (Rev. 1990)).

This Court unanimously dismissed the appeal, holding that “[t]he Council did not authorize

the appeal in this case by the three appellants in their official capacity,” that “the record

shows that the Council was affirmatively against any such action,” and that “the appellants

do not have the authority to pursue this appeal and they are without standing to maintain it

on behalf of the Council.” Id.

¶33.   The majority finds that no relevant case law “prohibits a mayor from pursuing an

appeal on behalf of a municipality, absent the council’s express prohibition.” Maj. Op. ¶ 24.

I would not limit Gaddy to its facts, but rather would find that its essential holding—that the

city council’s approval is necessary for the filing of an appeal—controls here. Officials, be

they members of the city council or the mayor, may not, in their individual capacities,

maintain an appeal absent lawful authorization from the city council.9

¶34.   The majority’s language suggests that the mayor may do anything that is not

prohibited. While it is true that “the mayor shall have the superintending control of all the

officers and affairs of the municipality . . . ,” such grant of authority is limited to the authority

specifically enumerated in the applicable statutes. See Miss. Code Ann. § 21-8-17(1); Miss.



to pass any measure whatever . . . .” Miss. Code Ann. § 21-8-11(2) (Rev. 2015).
       9
         The majority ascertains that McAdams, as a named appellee to the Bill of
Exceptions filed by Perkins, has standing to pursue this appeal. Maj. Op. ¶ 24, n.6. I
respectfully disagree. The Bill of Exception listed McAdams in her official capacity as
Mayor of the City of Greenwood, Mississippi, not as an individual defendant in the election
contest.

                                                 17
Code Ann. § 21-15-7, -9; see also Miss. Code Ann. § 21-3-15 (Rev. 2015) (powers and

duties of mayor in a mayor-board of aldermen form of municipal government); Miss. Code

Ann. § 21-5-7 (Rev. 2015) (powers and duties of mayor in a mayor-commission form of

municipal government); Miss. Code Ann. § 21-7-13 (powers and duties of mayor in council

form of municipal government).

¶35.   Therefore I would hold that McAdams may not pursue the present appeal and that the

appeal should be dismissed forthwith.

       KING, J., JOINS THIS OPINION.




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