Alabama Advisory Opinions January 05, 1999: AGO 1999-070 (January 5, 1999)

AGO 1999-070.

Dear Ms. Moody:

This opinion of the Attorney General is issued in response to your request.

1. According to Act No. 87-440, the salary paid to the probate judge of Covington County shall comprise his/her "entire compensation" and shall be in "lieu of all fees . . . ." In light of the wording of this Act, is the judge of probate of Covington County entitled to compensation pursuant to section 17-4-138 of the Code of Alabama?

2. If it is determined that the judge of probate of Covington County is entitled to compensation pursuant to section 17-4-138, is the Covington County Commission required to pay the judge of probate five cents ($.05) per voter name for preparation of the voter list for the June primaries and the November general election and for the list provided for the on-site absentee voting locations?

Section 17-4-138 of the Code of Alabama provides in pertinent part:

The judge of probate may employ such assistants and clerical help as may be necessary to complete and properly prepare the list of qualified electors which the judge of probate is required to furnish the election inspectors. The judge of probate shall receive or such assistants shall be paid out of the county treasury by warrants, drawn by the county commission on certificate of the probate judge, accompanied by the certificates of the person being paid, showing the amount is due under the provisions of this chapter, but the entire amount spent for the preparation of such lists shall not exceed a sum equal to the amount obtained by multiplying the number of the names on said list by $.05 for the preparation of such list.

Section 17-4-130 of the Code of Alabama requires the probate judge to prepare correct alphabetical lists of the qualified registered voters by precincts and districts and deliver those lists to the election officers immediately preceding every general, primary, or special election. ALA. CODE § 17-4-130 (1995). The official list of qualified voters must also be furnished by the probate judge to the absentee election manager. ALA. CODE § 17-10-5 (Supp. 1998).

This Office has previously held that upon proper certification the probate judge is entitled to receive $.05 per name for preparation of the voter list without regard to whether the probate judge is compensated on the fee system or a salary system. Opinion to Honorable Mack Diamond, Probate Judge, Randolph County, dated January 3, 1997, A.G. No. 97-00066; to Honorable Rogene Booker, Probate Judge, Conecuh County, dated August 10, 1995, A. G. No. 95-00279; and to Honorable Sherrie R. Phillips, Probate Judge, Covington County, dated February 24, 1994, A.G. No. 94-00092. The right of all probate judges to receive these funds was recognized by the Alabama Supreme Court in Opinion of the Justices , No. 285, 407 So. 2d 122 (Ala. 1981), wherein the Justices held that probate judges cannot be denied this compensation during their term of office. This Office has also stated that the funds for the preparation of the list accrue to the probate judge upon certification by the probate judge that he is the proper person to receive such payment, but the funds may be paid to the probate judge's assistants if the probate judge certifies that the assistants prepared the list and are entitled to the funds. Opinion to Honorable Freddie Armstead, President, Marengo County Commission, dated November 10, 1992, A. G. No. 93-00057.

The probate judge is entitled to receive the funds for preparation of the voter list for the primary, primary run-off, and the general election. This Office has not addressed whether the probate judge is entitled to receive the funds for the preparation of the voter list provided to the absentee election manager for absentee voting. The probate judge, in addition to the lists to be provided to the election officials for election day, must also furnish the official list of qualified voters to the absentee election manager at least 45 days before the election. ALA. CODE § 17-10-5 (Supp. 1998). With respect to the on-site absentee locations, section 17-10-3 of the Code states, "the absentee election manager shall provide election officials at each on-site balloting location the list of qualified voters." ALA. CODE § 17-10-3(c) (Supp. 1998). Accordingly, the probate judge is not officially required to provide the voter lists for the on-site voting locations, as this is a function of the absentee election manager.

In a previous opinion concerning whether a probate judge is entitled to compensation for providing more than one list, this Office stated that when the probate judge is authorized to provide two separate lists, but makes copies of the list, he is entitled to compensation for only one list; however, if the probate judge actually prepares two separate lists, he is entitled to compensation for both lists. Opinion to Honorable Clyde Teas, Winston County, dated May 15, 1964.

The voter list provided by the probate judge to the absentee election manager may be considered a separate list from the list provided to the election officials for use on the day of the election because additions, deletions, and other corrections may be made to the list that is provided for election day. If the county commission is satisfied that the probate judge did, in fact, prepare and furnish separate lists, one for the absentee election manager and another for the election officials for the day of the election, the probate judge is entitled to compensation for both lists.

Upon proper certification, the probate judge is entitled to receive $.05 per name for preparation of the voter list for the primary and general election without regard to whether the probate judge is compensated on the fee system or a salary system. Whether the probate judge is entitled to compensation for the voter list provided to the absentee election manager depends upon whether the probate judge actually provided a separate list for the absentee election manager.

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

Sincerely,

BILL PRYOR

Attorney General

By: CAROL JEAN SMITH

Chief, Opinions Division

BP/BFS

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