Mississippi Advisory Opinions May 26, 2006: No. 2006-00196 (May 26, 2006)

No. 2006-00196.

DOCK 2006-00196

Dear Commissioner Wilemon:

Attorney General Jim Hood received your letter of request and assigned it to me for research and reply. Your letter states:

I am writing requesting an official opinion in my capacity as election commissioner, District Two, Tishomingo County.

1. Are election commissioners restricted to a specific location to conduct commission business i.e. the courthouse?

2. Must a quorum be present for a commissioner to receive compensation for election related activities?

The above questions are prompted by numerous requests from local civic organizations for individual election commissioners to meet with them to provide information and training on the new voting machines.

In response to your first question, Mississippi Code Annotated Section 23-15-153 (1) (Supp. 2005) requires county election commissioners to meet at the county registrar's office on certain specified dates to revise the registration books and poll books.

We find no statutory mandate as to where the commission must meet to conduct its other business such as the appointment of poll workers. However, notice of any meeting that is not at a place and time specified by statute to conduct official business or discuss matters that may lead to the formulation of public policy must be given and the meeting must held in accordance with the State Open Meetings law (Sections 25-41-1 through 25-41-17). Hinds County Bd. of Supervisors v. Common Cause, 551 So. 2d 107 (Miss. 1989).

Specifically regarding the demonstration of the new machines, Section 23-15-531.7 provides:

The officials in charge of the election shall place on public exhibition and demonstrate the use of the DRE units throughout the county or municipality during the month preceding each primary and general election. At least during the initial year in which DRE equipment is used in a county or municipality, all officials in charge of the election shall offer a series of demonstrations and organized voter education initiatives to educate electors in the use of such equipment in voting.

Obviously, the commission must demonstrate the machines at various locations throughout the county in order to comply with the above quoted statute.

In response to your second question as to whether a quorum must be present for a commissioner to receive compensation for election related activities, please our previous opinion addressed to Herscel Mitchell, dated February 13, 1990 in which we said:

In our opinion, individual commissioners who perform work when a quorum is not present may be paid for such work provided the commissions determines, consistent with the facts, that in order to fulfill its statutory responsibilities it is necessary for individual commissioners to work when a quorum is not present and the county board of supervisors, by lawful order, authorizes compensation for such work not to exceed the total number of days allowed by statute for revising the registration books and pollbooks.

We emphasize that a quorum of commissioners must be present in order for any official action to be taken.

We distinguish the commission's responsibilities in revising the registration books and poll books set forth in Section 23-15-153 and the commission's responsibilities to demonstrate the DRE machines set forth in Section 23-15-531.7. The demonstration of the machines requires no official action to be taken and there should be no discussions between the commissioners that could lead to the formulation of public policy. Therefore, we are of the opinion that a county election commission as a whole may determine, consistent with the facts, that less than a quorum of commissioners is needed to conduct the required demonstrations without the necessity of an order from the county board of supervisors. We have previously expressed our opinion that such mandatory demonstrations are an integral part of the conduct of an election and that commissioners giving those demonstrations would be entitled to per diem compensation as provided in Section 23-15-153 subject to the limitation on days set forth therein.

MS AG Op., Robinson (February 24, 2006). However, we point out that Section 23-15-153 (2) provides that the per diem of $70.00 is "for every day or period of no less that five (5) hours accumulated over two (2) or more days actually employed in the performance of their duties in the conduct of an election."

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By: Phil Carter

Special Assistant Attorney General