Alabama Advisory Opinions March 27, 2002: AGO 2002-189 (March 27, 2002)

AGO 2002-189.

Dear Representative Hall:

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

Because the elector list is compiled by full-time county employees who are not employed or contracted exclusively for the special or exclusive purpose of compiling an electors list, and because monetary amounts were not expended by the judge of probate for this specific purpose, is the Judge of Probate of Jackson County, under section 17-4-138 of the Code of Alabama or any other law, entitled to the compensation provided for that purpose under section 17-4-138 of the Code of Alabama?

FACTS AND ANALYSIS

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

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 names on said list by $.05 for the preparation of such list.

ALA. CODE § 17-4-138 (1995) (emphasis added). 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).

Your request states that, in Jackson County, this list is compiled by full-time county employees, with duties in addition to those related to the voter list, and with the assistance of existing county computer equipment and records. The probate judge did not specifically employ assistants and clerical help for the exclusive purpose of compiling the list, and monetary amounts were not specifically spent by the probate judge in preparing the list.

This Office has previously concluded that the $.05 per name authorized by section 17-4-138 of the Code of Alabama accrues to the probate judge regardless of the method of preparation of the list (in that opinion the list was prepared by using the county computer equipment) because the probate judge has the ultimate responsibility for preparing and certifying the list. Opinion to Honorable Bruce Gargis, Chairman, Colbert County Commission, dated October 30, 1981, A.G. No. 82-00058.

In a 1995 opinion, this Office was asked whether the probate judge may receive these funds when he does not employ an assistant or clerk to perform the task, but performs the task himself, and he is compensated on the salary system. Opinion to Honorable Rogene Booker, Probate Judge, Conecuh County, dated August 10, 1995, A.G. No. 95-00279. The Booker opinion held that the probate judge is entitled to receive these funds without regard to whether he is compensated on the fee system or the salary system, and it is immaterial whether the probate judge personally prepares the list or whether assistants prepare the lists. Id .

This Office stated in a 1997 opinion that, upon proper certification, the probate judge is entitled to receive the $.05 per name for the preparation of the list, even when the list is initially printed in the Office of the Board of Registrars. Opinion to Honorable Mack Diamond, Probate Judge, Randolph County, dated January 3, 1997, A.G. No. 97-00066. In that opinion, this Office determined that the probate judge is entitled to this money because the probate judge is required by section 17-4-130 to ensure that these lists are properly divided by precincts, districts, and subdivisions. Id .

Based upon previous opinions and the Code of Alabama, the probate judge is not required by section 17-4-138 to hire additional assistants or clerks to help prepare the lists but may do so if the probate judge determines that it is necessary. Given the probate judge's ultimate responsibility for preparing and certifying the lists, the probate judge is entitled to receive the $.05 per name provided under section 17-4-138 upon his certification to the county commission that the payment should be made to him.

Due to the probate judge's ultimate responsibility for the preparation and certification of the list of registered voters, and regardless of the method of preparation of the list, the probate judge is entitled to receive the $.05 per name provided under section 17-4-138 of the Code of Alabama upon certification to the county commission that the payment should be made to him.

I hope this opinion answers your question. 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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