Mississippi Advisory Opinions March 14, 2008: No. 2008-00086 (March 14, 2008)

Mississippi Attorney General Opinions

2008.

No. 2008-00086.

DOCK: 2008-00086

---

Dear Mr. Robinson:

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

Issues Presented

You present two series of questions related to county election commissioners.

You ask the following five (5) questions regarding the keeping of minutes.

1) Are election commissioners required to keep minutes? 2) Are they to keep their minutes in a bound volume? 3) What should the minutes contain? 4) Should they not record all members in attendance and those who fail to attend, and all proceedings that took place at a meeting? 5) In whose physical custody are the minutes to be kept?

You ask the following four (4) questions regarding the DRE Voting Equipment and compensation to election commissioners in association with the DRE machines.

1) Is it necessary to demonstrate the DRE machines in accordance with Mississippi Code Annotated Section 23-15-531.7 (Revised 2007) after the initial year they are put in use? 2) If so, would a demonstration in the Circuit Clerk's office meet that requirement? 3) Does the reference to "officials in charge of the election" in Section 23-15-531.7 mean the party executive committee in primary elections and the county election commissioners in general elections? 4) Must election commissioners contract or receive prior approval from the Board of Supervisors prior to delivering the DRE units to the polling places and being paid for such work?

You also ask if a quorum must be present for the election commission to be considered in session so as to be entitled to compensation for work performed and if the Circuit Clerk is responsible for storing and care of the DRE units under Section 23-15-531.8?

Responses

Regarding the keeping of minutes, all public bodies, including election commissions, are required to keep minutes. The minutes must show the commissioners present, the commissioners who are absent, the date, time and place of the meeting, an accurate recording of any final actions taken and a record, by individual member, of any votes taken. The minutes must also contain any other information that the commission requests be included or reflected in the minutes. While we do not find any specific requirement that the minutes be kept in bound volumes, we are of the opinion that official minutes should be in bound form. If they are not in bound form, they must be in a form that preserves such records completely and insures that the public has ready access to them.

Since Section 23-15-153 requires county election commissions to meet in the office of the county registrar (circuit clerk) to revise the voter registration records, we are of the opinion that the minutes of the commissions should be available as a public record in the office of the circuit clerk.

In regard to the demonstration of the Direct Recording Electronic Voting Equipment (DRE), the series of demonstrations of such equipment and organized voter education initiatives to educate voters in the use of such equipment is required only in the initial year the DRE equipment is used. However, in other years the DRE equipment must be placed on public exhibition and demonstrated throughout the county, not just in the circuit clerk's office, during the month preceding each primary and general election.

The statutory reference to "officials in charge of the election" refers to party executive committees for primary elections and to county election commissions for special and general elections.

The delivery of the DRE units to polling places for special and general elections is a statutory duty of the county election commissioners that constitutes a part of the duties for which they may claim a per diem subject to the provisions and limitations of Section 23-15-153 without prior approval of the board of supervisors. Party executive committee members are not entitled to any compensation for performing that duty in primary elections.

A quorum of an election commission must be present before any official action may be taken. However, a county board of supervisors may authorize individual commissioners to perform work and receive the applicable statutory per diem when a quorum is not present if it is necessary for the commission to fulfill its statutory responsibilities.

The circuit clerk of each county is responsible for the storage and security of the DRE units when not in use.

Applicable Law and Discussion

It has long been the rule in Mississippi that a public board or commission may act only through its minutes. Lee County v. James, 178 Miss. 554, 174 So. 76 (Miss. 1937). In emphasizing the importance of keeping minutes, the Court said:

When official authority is conferred upon a board or commission consisting of three or more members, the authority so conferred must be exercised by a legal quorum, and, as a general rule, the decisions to be executed or the contracts to be awarded by the board must be determined or decided upon only in or at a lawfully convened session, and the proceedings must be entered upon the minutes of the board or commission. The reasons for the requirement aforesaid are: (1) That when authority is conferred upon a board, the public is entitled to the judgment of the board after an examination of a proposal and a discussion of it among the members to the end that the result reached will represent the wisdom of the majority rather than the opinion or preference of some individual member; and (2) that the decision or order when made shall not be subject to the uncertainties of the recollection of individual witnesses of what transpired, but that the action taken will be evidenced by a written memorial entered upon the minutes at the time, and to which all the public may have access to see what was actually done.

The statutory provisions regarding minutes of a public body is found in Section 25-41-11. Section 25-41-11(1) provides:

Minutes shall be kept of all meetings of a public body, whether in open or executive session, showing the members present and absent; the date, time and place of the meeting; an accurate recording of any final actions taken at such meeting; and a record, by individual member, of any votes taken; and any other information that the public body requests be included or reflected in the minutes. The minutes shall be recorded within a reasonable time not to exceed thirty (30) days after recess or adjournment and shall be open to public inspection during regular business hours.

We have previously opined that the minutes of a county election commission should be available as a public record in the office of the circuit clerk. MS AG Op., Jones (December 8, 2006).

The demonstration of the DRE voting equipment is governed by Section 23-15-531.7. It 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.

The demonstration of DRE units only in the circuit clerk's office would not satisfy the requirement that they be demonstrated "throughout the county." However, we have previously cautioned the Clay County Election Commission that while the commissioners may claim per diem for such demonstrations pursuant to Section 23-15-153 and subject to the limitations on days therein, they must properly allocate their days in a manner that will allow them to properly perform all other duties relating to the revision of the registration records and poll books and the proper conduct of elections. MS AG Op., Robinson (February 24, 2006); MS AG Op., Ivy (June 1, 2007).

In regard to the delivery of the DRE units, Section 23-15-531.6 requires the officials in charge of an election to ensure their delivery to the polling places of the respective precincts at least one (1) hour before the time for opening the polls at each election and cause each unit to be set up in the proper manner for use in voting.

In regard to election commissioners being entitled to compensation for work performed when a quorum is not present, in a prior opinion we said that while a quorum of commissioners must be present in order for any official action to be taken, individual commissioners may perform work when a quorum is not present and be compensated therefor if the commission as a whole determines, consistent with the facts, that it is necessary to fulfill the statutory responsibilities of said commission and then only pursuant to a lawful order entered by the board of supervisors authorizing such work. MS AG Op., Wilemon (May 26, 2006).

In regard to the storage and care of the DRE units, Section 23-15-531.8(2) provides:

The circuit clerk shall store the DRE units and related equipment under his or her supervision when it is not in use at an election. The circuit clerk shall provide compensation for the safe storage and care of such units and related equipment if the units and related equipment are stored by a person or entity other than the circuit clerk.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By: Phil Carter

Special Assistant Attorney General