Alabama Advisory Opinions April 15, 1996: AGO 1996-184 (April 15, 1996)

AGO 1996-184.

Dear Judge Thomas:

This opinion is issued in response to your request for an opinion from the Attorney General.

1. May those persons who are trained at the election school to be held in May 1996 by the Probate Judge in DeKalb County be used to conduct the municipal elections in DeKalb County later in 1996?

2. May those persons trained and certified at the May 1994 election school be used to conduct the municipal school tax referendum to be held on April 23, 1996?

The probate judge conducts election training schools pursuant to Code of Alabama 1975, _ 17-9-19, which states:

"(a) Not less than five days before an election or primary election, the authority charged with holding the same shall cause to be held a school of instruction for those who will actually conduct the election or primary election at the polling places. The sheriff shall notify such election officials of the time and place of the holding of such school of instruction, and shall also publish notice at least 48 hours before the same is to be held.

"(b) No election official shall serve in any election district in which a voting machine is used, unless he shall have received such instruction and is fully qualified to perform the duties in connection with the machine, and has received a certificate from the authorized instructor to that effect; provided, that this shall not prevent the appointment of an uninstructed person as an election official to fill a vacancy among the election officials."

A similar provision applies to municipal elections. Code of Alabama 1975, _ 11-46-30 states:

"(a) When voting machines are to be used in any municipal election, the municipal governing body shall provide for holding a school or schools of instruction for those who will actually conduct the election. The municipal clerk shall notify those persons who have been appointed election officials of the time and place of the holding of such school of instruction and shall also publish notice thereof at least 48 hours before the same is to be held.

"(b) No election official shall serve in any election district in which a voting machine is used, unless he has received such instruction, is fully qualified to perform the duties in connection with the machines and has received a certificate to that effect from the authorized instructor; provided, that this requirement shall not prevent the appointment of an uninstructed person as an election official to fill a vacancy among the election officials."

We note that training and certification sessions have also been conducted pursuant to the court order in Harris v. Siegelman , 695 F. Supp. 517 (M.D. Ala. 1988).

Your request states that DeKalb County has been using voting machines for the past several years and the various election officials are required to attend the instruction school which is held a week or so before the elections. Normally, the same election officials serve the primary, the runoff, and the general election. The election school is scheduled to be conducted in May of 1996. You further state that approximately 16 municipalities in DeKalb County will be conducting municipal elections in August of 1996 along with the runoff in September. These municipalities will rent voting machines from the county. Several city clerks have inquired as to whether the school conducted in May will be sufficient to meet the requirements for a municipal election school. Your office maintains a roster of persons who attended the elections officials' school and can provide this information to the various city clerks.

In addition to the above-mentioned municipal elections, the City of Fort Payne, pursuant to Amendment No. 279 of the Alabama Constitution of 1901, has requested that a school tax referendum be held to renew the tax. This election is scheduled for April 23, 1996, which is a few weeks before the election school for the 1996 elections.

The Code requires that municipal election officials attend a school of instruction as to their duties before the election, be qualified to perform those duties, and receive a certificate to that effect. The purpose of the training schools is to instruct officials as to the use of the machines, the proper way to conduct the election, and to update the officials as to any changes in the election laws. There is no specified time for the schools to be held. The municipal governing body is required to provide a school or schools of instruction for those persons who will conduct the municipal election. It is our opinion that the law allows a municipal governing body to select their election officials from those persons who have attended the school conducted by the probate judge. However, since municipal elections are conducted pursuant to Code of Alabama 1975, _ 11-46-1, et seq ., the municipality may choose to conduct its own school with respect to its municipal election and, in fact, may prefer to do this in addition to and/or in place of the probate judge's school.

Amendment No. 279 provides for a special property tax for educational purposes in the City of Fort Payne and calls for a referendum election to be "called, held, conducted, and paid for by the city of Fort Payne." The City of Fort Payne is not prohibited from selecting election officials for use in this election from those persons who were trained and certified by the DeKalb County Probate Judge at the May 1994 school. The City of Fort Payne may wish to conduct its own training school before this special election, especially if there are any changes or other matters that the election officials should be informed of.

Those persons who are trained at the election school to be held in May 1996 by the Probate Judge in DeKalb County may be used to conduct the municipal elections to be held in DeKalb County in 1996 or the municipalities may conduct their own election schools. The City of Fort Payne may use election officials who were trained in the May 1994 DeKalb County election school for the special election to be held on April 23, 1996, in Fort Payne.

What duties, if any, do the sheriff and the probate judge have regarding the conduct of the school tax referendum to be held pursuant to Amendment No. 279?

Amendment No. 279 states:

"The elections provided for herein shall be called, held, conducted, and paid for by the city of Fort Payne, DeKalb county, Alabama, and governed otherwise in the manner provided for an election on the school district tax authorized in amendment three, article 19 of the Constitution of Alabama. By article 7, chapter 10, Title 52 of the Code of Alabama 1940."

The provisions for conducting the school district tax authorized in amendment three are set forth in Code of Alabama 1975, _ 16-13-180, et seq . These provisions provide that the county commission shall conduct the election and give specific duties to the sheriff and the probate judge with respect to the election. However, Amendment No. 279 specifically provides that the City of Fort Payne shall call, hold, conduct, and pay for the election provided therein. Thus, there do not appear to be any duties for the sheriff or the probate judge to perform with respect to this election.

The sheriff and the probate judge do not have any duties with respect to the City of Fort Payne school tax election to be held pursuant to Amendment No. 279.

I hope this sufficiently answers your questions. If our office can be of further assistance, please contact Brenda F. Smith of my staff.

Sincerely,

JEFF SESSIONS

Attorney General

By: JAMES R. SOLOMON, JR.

Chief, Opinions Division

JS/BFS

T/4.96/f