Mississippi Advisory Opinions July 16, 2008: No. 2008-00257 (July 16, 2008)

Mississippi Attorney General Opinions

2008.

No. 2008-00257.

2008-00257

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Dear Mrs. Hafter:

Attorney General Jim Hood has received your request for an official opinion and has assigned it to me for research and reply.

Issue Presented

Whether, when the commissioners of election receive a per diem over a limited number of days, as authorized by statute, that limitation is to be applied to the commissioners collectively or individually.

Response

It is the opinion of this office that the specific language employed in the applicable statute determines whether days of authorized per diem limit the days available to the group or the members individually.

Applicable Law and Discussion

While your written opinion request listed six individual inquiries, each of those inquiries asks the same central question: Whether the language "commissioners of election," as used in the fifteenth chapter of the twenty-third title of the Mississippi Code, refers to the group of commissioners or to its individual members. The answer to that question has, as you have noted, a substantial impact on the amount of money paid to election commissioners under statutorily-authorized per diems.

The legislature, when crafting the relevant per diem statutes, identified election commissioners by referring to them either as the "commissioners of election" or, alternatively, by the use of phrases such as "an election commissioner."

Because the legislature employs both phrases, and because each of the phrases carries a distinct meaning, it is the opinion of this office that the only reasonable reading recognizes that "commissioners of election" refers to the group of commissioners, collectively. Elsewhere, as in Sections 23-15-211 and 23-15-153(6), the legislature employs the language "an election commissioner" and "each county commissioner of elections," singular, discrete terms that clearly evince the intent to apply to each commissioner individually.

The legislature, in constructing the per diem fee schedule, made use of these two differing phrases. Section 23-15-239 provides for a per diem to the commissioners of election for time spent in conducting training sessions and limits those days to ten, per year. Applying the reasonable interpretation of the language, that ten-day limit applies to the group of commissioners, as an entity.

In Section 23-15-211, the statute provides that "the per diem shall not be paid to an election commissioner for more than twelve days of training per year and shall only be paid to election commissioners who actually attend and complete a training event and obtain a training certificate." Here, the legislature chose to employ the commissioner-specific language, "an election commissioner."

The subject matter of the statutes further support this reading;Section 23-15-239's object is to provide training sessions to citizens. To further that purpose, the legislature established that the commissioners of election, as a group, could spend only ten days per year in the labor of training others.

In contrast, Section 23-15-211's goal was to provide education to the individual commissioners. In order to accomplish this goal, the limits of per diem became commissioner-specific via the language "an election commissioner." Each commissioner is afforded twelve days of training per year, whereas under Section 23-15-239, the group of commissioners may only provide ten days of training, per year. Had the legislature employed the language "commissioners of election" in Section 23-15-211, one could reach the nonsensical result of allowing one commissioner to receive the total amount of training originally allocated for the entire group.

Accordingly, it is the opinion of this office that where the statute refers to "the commissioners of election," it refers to the group of commissioners as a discrete entity. Where the statute refers to "an election commissioner," or other similar language, it refers to the individual members of the group. We are of the opinion that per diem statutes should be limited by the legislature's choice of language in identifying the group of or individual commissioners.

Applying the above analysis to each of your questions, pursuant to Miss. Code Section 23-15-153(2), the maximum number of days which members of the Washington County Election Commission, as a group, are authorized to receive per diem for conduct of elections or revision of registration or pollbooks is one hundred (100) days per year with an additional 35 days for each election in excess of one (1) per year.

In accordance with Miss. Code 23-15-239(5), the maximum number of days which members of the Washington County Election Commission, as a group, are authorized to receive per diem for conducting training of poll managers and clerks is ten (10) days per year.

Pursuant to Miss. Code 23-15-491, the maximum number of days which members of the Washington County Election Commission, as a group, are authorized to receive per diem for conducting training sessions on electronic voting systems is seven (7) days per year.

In accordance with Miss. Code 23-15-153(4), the maximum number of days which members of the Washington County Election Commission, as a group, are authorized to receive per diem for conducting a runoff election following a general or special election is fourteen (14) days per year.

Pursuant to Miss. Code 23-15-153(3), the maximum number of days which members of the Washington County Election Commission, as a group, are authorized to receive per diem for revision of registration and poll books prior to any special election is ten (10) days per year.

In accordance with Miss. Code 23-15-211, the Washington County Board of Supervisors is authorized to pay per diem to each member of the Washington County Election Commission for a maximum of 12 days of training per year.

Please feel free to contact our office if we may be of further assistance.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By: Margarette Meeks

Special Assistant Attorney General