Mississippi Advisory Opinions October 12, 2007: AGO 2007-00530 (October 12, 2007)

Advisory Opinion Text

The Honorable Arthur Arbuthnott

Election Commissioner

Wilkinson County Election Commission

650 Locust Hill Rd.

Woodville MS 39669

Re: General Election

Dear Mr. Arbuthnott:

Attorney General Hood has received your request for an official opinion and it has been assigned to us for research and reply. Your letter states:

Recently I was elected as chairman of the Wilkinson County Election Commission and as you are aware our Commission will be involved in preparations for the General Election to be held on November 6, 2007. The Wilkinson County Election Commission to this point has received no cooperation from the Circuit Clerk of Wilkinson County in preparation for the upcoming election.

1. What actions should be taken by the Wilkinson County Election Commission if the Circuit Clerk of Wilkinson County refuses to cooperate with our preparation for and the conducting of the November 6, 2007, General Election?

2. Does the Wilkinson County Election Commission have the authority to appoint persons to assist the Wilkinson County Election Commission with the General Election so long as they are not compensated and are not acting as the Wilkinson County Election Commission but simply are assisting the Wilkinson County Election Commission with the conducting of the General Election.

We are unable to respond to your first question with an official opinion due to the provisions of Section 7-5-25 of the Miss. Code which states: “No opinion shall be given or considered if the opinion is given after suit filed or prosecutionbegun.”

For your information, you may wish to consult the following authorities:

1. Section 175 of the Mississippi Constitution of 1890 provides: “All public officers, for willful neglect of duty or misdemeanor in office, shall be liable to presentment or indictment by a Grand Jury; and upon conviction, shall be removed from office, and otherwise punished as may be prescribed by law.”

2. Miss. Code Ann. Section 25-1-45 (1972) states: “If any county, county district, or municipal officer who has executed bond for the faithful performance of duty shall knowingly or wilfully fail, neglect, or refuse to perform any duty required of him by law or shall violate his official obligations in any respect, the president or, in the absence or disability or default of the president, the vice-president of the board of supervisors in case of a county or county district officer, and the mayor in case of a municipal officer, or any person interested in either case shall cause suit to be brought on the bond of such officer for the recovery of the damages that may have been sustained thereby.”

3. Miss. Code Ann. Section 23-15-751 (1972) , which relates to absentee voting, states: “If any registrar or commissioner of elections shall refuse or neglect to perform any of the duties prescribed by Sections 23-15-621 through 23-15- 735, or shall knowingly permit any person to sign a false affidavit or otherwise knowingly permit any person to violate Sections 23-15-621 through 23-15-735, or shall violate any of the provisions thereof, or if any officer taking the affidavits as provided in said acts shall make any false statement in his certificate thereto attached, he shall, upon conviction, be deemed guilty of a crime and shall be punished by a fine not exceeding One Thousand Dollars ($1,000.00) or by imprisonment in the Penitentiary not exceeding one (1) year, and shall be removed from office.”

4. Miss. Code Ann. Section 23-15-269 (1972) reads as follows: “Any election commissioner, or any other officer or person acting as such, or performing election duty, who shall willfully refuse or knowingly fail to perform any duty required of him by the election laws, or who shall violate any of the provisions thereof, shall be guilty of a misdemeanor, and, upon conviction, be punished by a fine of not less than Twenty-five Dollars ($25.00) nor more than One Hundred Dollars ($100.00), or be imprisoned in the county jail not less than ten (10) days nor more than ninety (90) days, or both.”

5. Miss. Code Ann. Section 25-5-1 (1972) reads in part as follows: “If any public officer, state, district, county or municipal, shall be convicted in any court of this state or any other state or in any federal court of any felony other thanmanslaughter or any violation of the United States Internal Revenue Code, of corruption in office or peculation therein, or of gambling or dealing in futures with money coming to his hands by virtue of his office, any court of this state, in addition to such other punishment as may be prescribed, shall adjudge the defendant removed from office; and the office of the defendant shall thereby become vacant. If any such officer be found by inquest to be of unsound mind during the term for which he was elected or appointed, or shall be removed from office by the judgment of a court of competent jurisdiction or otherwise lawfully, his office shall thereby be vacated; and in any such case the vacancy shall be filled as provided by law.”

Our response to Question (2) is yes, the election commission may appoint uncompensated volunteers to assist in certain election duties. Miss. Code Ann. Section 23-15-219 (1972) states, in pertinent part:

(1) The board of election commissioners is hereby authorized and empowered to employ and set or determine the duties of and determine the compensation of such investigators, legal counsel, secretaries, technical advisors and any other employees or persons who or which said board or a majority thereof may deem necessary to enable them to discharge the duties and obligations presently or hereafter vested in them. However, before employing such persons or setting or determining said compensation, the election commissioners must first have the approval of the board of supervisors of the county...

Miss. Code Ann. Section 23-15-523 (1972) states in pertinent part:

All proceedings at the counting center shall be under the direction of the commissioners of elections or officials in charge of the election, and shall be conducted under the observations of the public, but no persons except those authorized for the purpose shall touch any ballot. All persons who are engaged in processing and counting of the ballots shall be deputized in writing and take oath that they will faithfully perform their assigned duties...

It is our opinion that an uncompensated “volunteer” is not an employee, is not employed as contemplated in Miss. Code Ann. Section 23-15-219 (1972) , and therefore may be appointed by the election commission without having to follow the requirements of Section 23-15-219 . No such volunteer may act as an election commissioner and may only be appointed by the election commission itself. The appointment must be recorded in the minutes of the election commission. Furthermore, any such volunteer with access to ballots must be deputized in writing and take an oath that they will faithfully perform their assigned duties, in accordance with Section 23-15-523 .

Please let me know if you would like to discuss this matter or if I can be of further assistance.

Sincerely yours,

Jim Hood Attorney General

Reese Partridge Special Assistant Attorney General.