Alabama Advisory Opinions February 13, 2008: AGO 2008-53 (February 13, 2008)

Alabama Attorney General Opinions

2008.

AGO 2008-53.

Dear Mr. Gruenloh:

This opinion of the Attorney General is issued in response to your request on behalf of the Baldwin County Commission.

QUESTION ONE

Can the Baldwin County Commission designate multiple "places or offices" where the duties of the absentee election manager are performed?

FACTS AND ANALYSIS

Baldwin County is a geographically expansive county with a significant number of voters residing substantial distances from the county seat in Bay Minette. For purposes of future elections, you informed this Office that the Baldwin County Commission wants to designate multiple places throughout the county, including the main courthouse at the county seat in Bay Minette, for the performance of all duties of the absentee election manager. The use of satellite offices in addition to the main courthouse would enable eligible voters to con-veniently apply for and vote absentee ballots regardless of where they live in the county.

To adequately staff these satellite offices, you stated that the Baldwin County Commission seeks to appoint various Baldwin County personnel as assistants to the absentee election manager, who would have the same authority to distribute and receive absentee applications and absentee ballots. The appointed personnel would serve as assistants to the absentee election manager during his or her regular work hours. The satellite offices would be operated for shorter periods than that of the circuit clerk's office, but, in all instances, the main courthouse location would remain open on the days and during the hours as the circuit clerk.

Section 17-11-2 of the Code of Alabama defines the position of absentee election manager. This section states, in pertinent part, as follows:

In each county there shall be an "absentee elec-tion manager," who shall fulfill the duties assigned by this chapter. The circuit clerk of the county shall, at his or her option, be the absentee election manager. If the circuit clerk of the county declines the duties of absentee election manager, the appointing board shall thereupon appoint an absentee election manager, who shall be a person qualified by training and experience, who is a qualified elector of the county and who is not a candidate in the election to perform the duties assigned by this chapter. The county commission shall designate the place or office where such duties shall be performed. Such place or office shall be open on the days and during the hours as that of the circuit clerk prior to each election. Any person so appointed shall have all the powers, duties, and responsibilities of the circuit clerk for the purposes of this chapter, including the power to administer oaths. Such powers, duties, and responsibilities shall terminate when the election results are certified. The absentee election manager or circuit clerk shall be entitled to the same compensation for the performance of his or her duties as is provided in Section 17-11-14.

Ala. Code § 17-11-2 (2006) (emphasis added).

Under the established rules of statutory construction, words used in a sta-tute must be given their natural, plain, ordinary, and commonly understood meaning; where plain language is used, a court is bound to interpret that lan-guage to mean exactly what it says. Ex parte Cove Properties, Inc., 796 So. 2d 331, 333-34 (Ala. 2000). The plain language used in section 17-11-2 states that the county commission shall " designate the place or office" where the duties of the absentee election manager will be conducted. Ala. Code § 17-11-2 (2006). The statute does not contemplate multiple places or offices being selected by the county commission.

This Office has repeatedly opined that the ultimate responsibility for the performance of absentee election duties and ensuring the correct and timely per-formance of the same rests with the absentee election manager. Opinions to Honorable Cheryl Strong, Dallas County Circuit Clerk, dated December 30, 2002, A.G. No. 2003-057 and to Honorable Jim Bennett, Secretary of State, dated April 9, 1996, A.G. No. 96-00177. The concept of multiple places or offices being designated for the performance of the duties of the absentee elec-tion manager is at odds with the reality that there is only one absentee election manager per county.

Moreover, the designation of multiple "places or offices" where the duties of the absentee election manager are performed has the potential for widespread complications and increases the possibility of voter fraud. In receiving ballots, an absentee election manager is responsible for noting on the poll list persons who have voted to prevent duplication of votes by one person. See , generally , opinion to Honorable Jim Bennett, Secretary of State, dated August 14, 1997, A.G. No. 97-00261. By designating multiple places or offices within Baldwin County, there would be multiple poll lists that may not be adequately or timely updated to reflect votes by various persons. The Code of Alabama lacks pro-visions for addressing these complications, further suggesting they are not intended.

CONCLUSION

The Baldwin County Commission may not designate multiple "places or offices" where the duties of the absentee election manager are performed.

QUESTION TWO

Can some satellite locations be open for periods of less than "the days and during the hours as that of the circuit clerk" if the main county courthouse is des-ignated and operated during all such days and hours?

FACTS, ANALYSIS, AND CONCLUSION

Based on the response given to Question One, the issues raised in Ques-tion Two are moot.

QUESTION THREE

Can the Baldwin County Commission appoint current Baldwin County personnel as assistants of the absentee election manager with the authority to perform all functions of the absentee election manager, includ-ing the distribution and receipt of absentee ballot applications and absentee ballots, without regard to whether the absentee election manager is present at the satellite location where the functions are per-formed ?

FACTS AND ANALYSIS

Although your question primarily concerns operations at satellite offices, a matter mooted by the response in Question One, your question also con-templates whether an assistant may have the same authority as the absentee election manager. Alabama law does not contemplate an absentee election man-ager having assistants who have the same authority as the absentee election manager. This Office has opined on the use of assistants, stating that assistants have either been volunteers or part-time clerical assistants. See Strong at 2; Bennett at 1. These assistants do not have the same authority as the absentee election manager. Id . Implicit in the term "assistant" is the commonly un-derstood perception that an assistant will function as a helper and not in the stead of the person in authority. Thus, it is the opinion of this Office that an assistant of an absentee election manager may not perform the same functions of an absentee election manager.

CONCLUSION

The Baldwin County Commission may not appoint assistants for the ab-sentee election manager that have the same authority as the absentee election manager.

QUESTION FOUR

Are Baldwin County personnel serving as appointed assistants of the absentee election manager entitled to compensation as provided for in sections 17-11-14 and 17-8-12 of the Code of Alabama?

FACTS AND ANALYSIS

The compensation specified in sections 17-11-14 and 17-8-2 of the Code references compensation for absentee election managers and clerks. Nothing in these sections references compensation for assistants of absentee election man-agers. Further, the issue of compensation for personnel appointed or selected to assist the absentee election manager has previously been discussed by this Office. Specifically, this Office has stated the following:

This Office has also opined that the cost of part-time clerical assistance may be a necessary and proper cost or expense incurred in providing absentee ballots, which is a cost the county is required to pay, but it is not an expense that the state is required to reimburse the county. Whether additional staff members should be appointed, or whether the current staff may be used to assist the absentee election manager, is a matter that must be determined by the circuit clerk and/or the county commission. The county commission must determine whether it will authorize additional staff and the amount of compensation that it will provide to those persons and whether it would authorize any addi-tional compensation or overtime, if possible, for any current staff members who provide assistance.

Strong at 2. This Office sees no reason to diverge from its previous opinion.

CONCLUSION

Baldwin County personnel serving as appointed assistants of the absentee election manager are not entitled to compensation as provided for in sections 17-11-14 and 17-8-12 of the Code of Alabama.

I hope this opinion answers your questions. If this Office can be of fur-ther assistance, please contact Monet Gaines of my staff.

Sincerely,

TROY KING

Attorney General

By:

BRENDA F. SMITH

Chief, Opinions Division

TK/MMG

361864/105762