Mississippi Advisory Opinions January 31, 2001: AGO 2001-0055 (January 31, 2001)

Advisory Opinion Text

Honorable Eric Clark

Mississippi Secretary of State

Post Office Box 136

Jackson, Mississippi 39205-0136

Re: Procurement of Ballots for Statewide Special Election for Selecting the Official Flag of the State of Mississippi

Dear Mr. Clark:

Attorney General Mike Moore has received your request for an official opinion and has assigned it to me for research and response. Your letter is quite lengthy, so it is attached hereto and incorporated herein as if it were set forth in its entirety. The two questions posed to our office are as follows:

1. House Bill 523, Chapter 301 of the Laws of 2001, amends Section 23-15-351, directing that for the statewide special election to select the official state flag, the Secretary of State is responsible for procuring and purchasing ballots. In light of this, is the Secretary of State entitled to the exemption from bidding requirements set forth in Section 31-7-13(m)(xvi)?

2. If the answer to our first inquiry is yes, may programming necessary to ensure compatibility between ballot format and ballot reading and counting procedures also be obtained by the Secretary of State, and if so, does the exemption provided by Section 31-7-13(m)(xvi) apply? *****

In response, Section 31-7-13(m)(xvi) provides that the purchases of ballots which are printed pursuant to Section 23-15-351 are exempt from bidding requirements. We must then look to Section 23-15-351, which reads as follows:

It shall be the duty of the chairman of the election commission of each county to have printed all necessary ballots for use in elections, except ballots in municipal elections which shall be printed as herein provided by the authorities of the respective municipalities; and the said election commissioner shall cause the official ballot to be printed by a printer sworn to keep the ballots secret under the penalties prescribed by law. The printer shall deliver to the election commissioners for holding elections, a certificate of the number of ballots printed for each precinct, and shall not print any additional ballots, except on instruction of proper election commissioners; and failure to observe either of these requirements shall be a misdemeanor.

House Bill 524, Chapter 301, amends this section, to provide that for the purpose of the special election to select the official state flag, the Secretary of State, not the chairman of the election commission, is responsible for the printing of ballots. Therefore, it is the opinion of this office that the exemption provided in Section 31-7-13(m)(xvi) is applicable to the procurement of ballots by the Secretary of State for the purposes of the statewide special election for the selection of the official state flag.

Your second question addresses the related issue of election device programming, which is necessary to ensure that counting equipment is operating properly and is compatible with the ballot being produced. House Bill 524 Section 1(2) does not make reference to this service, reading, in pertinent part, as follows:

The costs incurred in providing the ballots which are required to include a color picture or drawing of each of the proposed official flag designs shall be borne by the State of Mississippi, and the Legislature shall appropriate the funds necessary for this purpose. All other costs associated with the holding of the statewide special election for the purpose of selecting the official state flag shall be borne by each individual county.

This language expressly places with the State the expenses of procuring ballots meeting the requirements of this section. In the view of this office, this language also includes expenses incidental to the provision of the ballots, including costs for programming voting equipment/devices. This is supported by additional documentation provided by your office which has served to elaborate on the intent behind the legislation. Specifically, we have reviewed a memorandum and charts which were provided to the Legislature during its deliberations on this bill, which break down the expenses expected to be borne by the state versus those expected to be borne by the counties. In the memorandum, the expense of ballots and voting device costs are inseparable and to be incurred by the Secretary of State's office, whereas it is clearly stated that the only expenses to be borne by the individual counties are personnel costs. Based upon this clarification, we are of the opinion that the intent of House Bill 524 was that the Secretary of State be authorized to bear the expense of the necessary programming of voting devices/equipment, and that the Secretary of State may, in fact, incur this expense.

The question remains as to whether the procuring of the necessary programming is covered by the exception to the bid requirements of Section 31-7-17(m)(xvi). It is the opinion of this office that this service is not covered by that specific exception for the purchase of ballots, but that the programming of such would be a service, for which there is no requirement to solicit bids. However, such a contract would require review by the Personal Service Contract Review Board or the Mississippi Department of Information Technology, pursuant to Section 25-9-120 of the Mississippi Code . The contract review board has adopted emergency procedures, which are enclosed and may be applicable to this situation. For guidance in furthering any necessary review or approval of such a contract, we would suggest contacting the Personal Service Contract Review Board.

Please note that this opinion is applicable only to the facts presented in this request as they relate to the statewide special election for the selection of an official state flag.

If our office may of further assistance, please advise.

Sincerely, Mike Moore Attorney General

Heather P. Wagner Assistant Attorney General