Mississippi Advisory Opinions May 31, 2013: AGO 2013-00191 (May 31, 2013)

Advisory Opinion Text

AUTH: Phil Carter

RQNM: H. Donald Brock

SUBJ: Elections

SBCD: 69

TEXT: H. Donald Brock, Jr., Esquire

Attorney for City of Greenwood

Post Office Box 941

Greenwood, Mississippi 38935-0941

Re: Employment of Consultant / Technical Advisor to Assist Election Commission

Dear Mr. Brock:

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

Issue Presented

Your letter states:

May a municipality use the authority granted in Mississippi Code Ann. Section 23-15-219 for the Municipal Election Commission to be authorized and empowered to employ a consultant/technical advisor to assist with the municipal general election?

Response

Yes, provided such employment is approved by the municipal governing authorities.

Applicable Law and Discussion

Section 23-15-219 authorizes county election commissions to employ, inter alia, technical advisors. It provides:

(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.

(2) The board of supervisors of the county is authorized and empowered to pay out of the general fund of the county the salaries and necessary traveling and subsistence expenses of said employees of said board of commissioners in such amounts as may be mutually agreed upon by the said board of supervisors and said board of election commissioners, but which shall be computed on the same basis allowed to state employees when traveling on state business. All expense accounts of said employees of said board of election commissioners shall be approved by said board of election commissioners and said board of supervisors or, in the discretion of each of said boards, by one (1) of the members of each of said boards duly authorized by the respective boards to approve or disapprove said subsistence, traveling and mileage expense accounts.

(3) Nothing in this section shall be construed to prohibit a person who holds the office of commissioner of election from being employed and receiving compensation pursuant to this section. Any compensation which such a person may receive from his employment pursuant to this section shall be in addition to any compensation such person may receive in performing his duties as a commissioner of election.

Section 23-15-173 provides:

(1) A general municipal election shall be held in each city, town or village on the first Tuesday after the first Monday of June, 1985, and every four

(4) years thereafter, for the election of all municipal officers elected by the people.

(2) All municipal general elections shall be held and conducted in the same manner as is provided by law for state and county general elections. (Emphasis added)

We have previously opined that Section 23-15-259 which authorizes county boards of supervisors to acquire polling places for the conduct of county and state elections is also applicable to municipal governing authorities in regard to municipal elections. MS AG Op., Brown (September 26, 2003).

The Mississippi Supreme Court has held that statutory provisions that are indicative of a cognate subject matter regarding certain elections are also applicable to other elections when statutes governing such elections are silent on the matter. Lopez v. Holleman, 69 So.2d 903 (Miss. 1954).

The provisions of Section 23-15-219 are, in our opinion, indicative of the cognate subject matter of the employment of technical advisors for election commissions and is applicable to municipal as well as county election commissions.

The Court has also recognized the necessity of applying county election statutes to municipal election matters when there are no statutes specific to municipal elections. Specifically, the Court has upheld the application of Sections 23-15-911, 23-15-921 and 23-15-927 which set forth the statutory election contest procedures for county and county district elections to municipal elections. Moore v. Parker, 962 So.2d 558 (Miss. 2007); Sumner v. City of Como Democratic Executive Committee, 972 So.2d 616 (Miss. 2008).

Conclusion

We are of the opinion that Section 23-15-219 authorizes a municipal election commission, with the approval of the municipal governing authorities, to employ technical advisors to assist the commissioners in the discharge of their duties.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

Phil Carter, Special Assistant Attorney General