Mississippi Advisory Opinions November 16, 2007: AGO 2007-00595 (November 16, 2007)

Advisory Opinion Text

Andrew Dulaney, Esquire

Attorney for Tunica County

Board of Supervisors

Post Office Box 188

Tunica, Mississippi 38676

Re: Compensation of Circuit Clerk

Dear Mr. Dulaney:

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

Issue Presented

Sometime after the August primary elections the Tunica County Board of Supervisors (the Board) was presented with a contract between the Tunica County Circuit Clerk, the Tunica County Election Commission and the Tunica County Democratic Executive Committee. The Circuit Clerk has presented the Board with an invoice for payment of $10,000.00. The question is whether the Board may approve the contract after the fact and pay the Circuit Clerk's invoice based on the contract.

Response

It is our opinion that under the facts presented, the Board of Supervisors may not approve the contract or pay the invoice. In addition to providing adequate polling places, Mississippi Code Annotated Section 23-15-301 (Revised 2007) specifies the expenses of a primary election for which counties are responsible. The county boards of supervisors are responsible for the expenses of printing ballots, necessary stationery, and the compensation of poll workers.

Generally, we find no statutory authority for boards of supervisors to pay circuit clerks and/or election commissioners for work performed in accordance with a contract with a party executive committee. An exception is that we have opined that programming the new direct recording electronic voting equipment is the modern day equivalent of printing the ballots and that clerks or election commissioners may be compensated for performing that task pursuant to an appropriate agreement with a party executive committee. Ms AG Op., Mitchell (May 12, 2006).

Also, Circuit Clerks are entitled to claim per diem for days spent assisting party executive committees pursuant to Section 23-15-225(3).

Applicable Law and Discussion

Section 23-15-263 basically requires county party executive committees to perform all tasks necessary to prepare for and conduct their party's primaries. Members of party executive committees receive no compensation for performing these duties.

Section 23-15-266 authorizes party executive committees to enter into written agreements with a circuit or municipal clerk or a county or municipal election commission if the political party meets certain criteria. Boards of supervisors are not parties to such agreements. That code section authorizes an agreement whereby a clerk or commission will perform certain specific tasks for an executive committee but makes no provision for any compensation. We find no authority that would allow a political party to obligate county taxpayers to pay for the performance of tasks that are the responsibility of the party faithful who serve on their party's executive committee without compensation.

As stated above, we have opined that programming the direct recording electronic voting equipment is the modern day equivalent of printing the ballots. If a board of supervisors determines, consistent with the facts, that a task provided for in an appropriate agreement falls within one of the expenses listed in Section 23-15-301 , it could authorize payment for the performance of such task.

We note that the copy of the agreement you forwarded to us was not signed by anyone on behalf of the Tunica County Democratic Executive Committee.

Sincerely,

Jim Hood Attorney General.

Phil Carter Special Assistant Attorney General.