Mississippi Advisory Opinions March 23, 2012: No. 2012-00142 (March 23, 2012)

No. 2012-00142.

Dear Mr. Powell:

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

You ask if a county election commissioner who was recently appointed to fill a vacancy may be compensated for services performed without having received the required certification training from the office of Secretary of State.

Yes.

Your letter states in part:

Section 23-15-211(4) requires training of election commissioners and a Certificate from the Secretary of State showing that the commissioner has completed the required elections seminar instruction. Section 23-15-153(9) provides that without such instruction and certificate a commissioner cannot received any compensation.

The Circuit Clerk of Carroll County is presently trying to set up the required training for the newly appointed Commissioner, but it appears now that no additional training seminars may be offered by the Secretary of State prior to the November election. It is a certainty that the required training will not be available before the party primaries scheduled for March 13, 2012.

You correctly state that Section 23-15-211(4) requires certification training for county election commissioners and that Section 23-15-153(9) provides that a county election commissioner who has not received a certificate of training is not entitled to receive any compensation.

Specifically, Section 23-15-211(4) provides:

Each participant shall receive a certificate from the Secretary of State indicating that the named participant has received the elections training seminar instruction and that each participant is fully qualified to conduct an election. Commissioners of election shall annually file the certificate with the chancery clerk. If any commissioner of election shall fail to file the certificate by April 30 of each year, his office shall be vacated, absent exigent circumstances as determined by the board of supervisors and consistent with the facts. The vacancy shall be declared by the board of supervisors and the vacancy shall be filled in the manner described by law. Prior to declaring the office vacant, the board of supervisors shall give the election commissioner notice and the opportunity for a hearing.

Section 23-15-153(9) provides:

Any commissioner of election who has not received a certificate issued by the Secretary of State pursuant to Section 23-15-211 indicating that the commissioner of election has received the required election seminar instruction and that the commissioner of election is fully qualified to conduct an election, shall not receive any compensation authorized by this section, Section 23-15-491 or Section 23-15-239.

We have previously addressed the issue of compensation of an election commissioner who was in office at the beginning of a particular year who failed to receive the required training and file the required certificate by the April 30 deadline. We said that, even though the board of supervisors made a finding that the failure to receive the required certificate of training was due to exigent circumstances in accordance with Section 23-15-211(4) thereby allowing the commissioner to remain in office, such finding did not allow her to be compensated. MS AG Op., Holleman (December 23, 2010).

Section 23-15-839 provides for the filling of vacancies in county and county district offices. It provides in part:

When a vacancy shall occur in any county or county district office, the same shall be filled by appointment by the board of supervisors of the county, by order entered upon its minutes, .... ., such appointee shall serve until a successor is elected as hereinafter provided, .... .

We do not believe the Mississippi Legislature intended to deny compensation to an election commissioner duly appointed to fill a vacancy who, due to no fault of his/her own is prevented from receiving the required certification training prior to the statutory deadline.

The Mississippi Supreme Court in Guardianship of Albert Jermaine Duckett v. Albert Jermaine Duckett, Walter Williams Jr., and Walter Williams, 991So.2d 1165 (Miss. 2008) said:

If a statute is plain and unambiguous, there is no need for this Court to engage in statutory interpretation. Dupree v. Carroll, , 30 (Miss. 2007) (citation omitted). On the other hand, if a statute is ambiguous or silent on a specific issue, statutory interpretation is appropriate. Id. "The primary rule of construction is to ascertain the intent of the legislature from the statute as a whole and from the language used therein." Bailey v. Al-Mefty, , 1206 (Miss. 2001) (quoting Clark v. State ex rel. Miss. State Med. Ass'n, , 1048 (Miss. 1980)). But "the [C]ourt, in determining the legislative intent, may look not only to the language used but also to its historical background, its subject matter, and the purposes and objects to be accomplished." Id. "Unthought of results must be avoided if possible, especially if injustice follows, and [an] unwise purpose will not be imputed to the Legislature when a reasonable construction is possible." Evans v. Boyle Flying Serv., Inc., , 825 (Miss. 1996) (internal quotation and citation omitted). (Emphasis added)

Sections 23-15-211 and 23-15-153 are silent on the issue of compensation for a county election commissioner who was appointed to fill a vacancy after the required certification training has been conducted.

Obviously, had the vacancy and appointment occurred after the April 30 deadline for filing the required training certificate with the Carroll County Chancery Clerk it would have been impossible to meet the deadline and, based on the plain language of Sections 23-15-211 and 23-15-153, would not be eligible for any compensation.

Likewise, as in the instant case, when the vacancy and appointment occurs after the certification seminars have been completed but prior to the April 30 deadline, the appointee, based on the plain language of Sections 23-15-211 and 23-15-153, would not be eligible for any compensation even though he/she would not have had an opportunity to attend a training seminar.

Since the statutes are silent on the issue of compensation for a county election commissioner appointed to fill a vacancy under either of the above described factual scenarios, we are of the opinion that the Mississippi Legislature did not contemplate that a commissioner so appointed would be expected to perform the duties of the office for the remainder of the calendar year without compensation.

To deny compensation to a commissioner appointed under such circumstances would, in our opinion, be an "unthought of result" and an "injustice" that, based on Duckett, must not be imputed to the Mississippi Legislature.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By:

Phil Carter

Special Assistant Attorney General