Mississippi Advisory Opinions September 03, 1986: 19860903 (September 03, 1986)

Advisory Opinion Text

James A. Torrey, Jr., Esquire

Attorney for the Board of Supervisors of Franklin County

Post Office Box 297

Meadville, Mississippi 39653

Dear Mr. Torrey:

Attorney General Pittman has received your opinion request and has assigned it to me for research and reply. Your letter states:

“In Franklin County, the Election Commission found that the physical condition of the poll books had deteriorated to such an extent that it was advisable to prepare new poll books. A question has arisen as to whether the Board of Supervisors has authority to pay the Circuit Clerk / Registrar and / or his employees for the typing and preparation of new poll books at the request of the Election Commission.

“We note that Section 23-5-179 provides in part as follows:

“The boards of supervisors of the several counties are authorized to allow compensation of the officers rendering services in matters of registration and elections, to provide ballot boxes, registration and poll books, and all other things required by law in registration and elections...”

“We also note that a September 18, 1985 Attorney General's Opinion (#220 - SUPERVISORS - AUTHORITY) relates to appointment of deputy registrars and the method of payment to Circuit Clerk / Registrars and / or deputy registrars, however the opinion does not specifically answer the question as to payment for the actual assembling and typing of the poll books by the Circuit Clerk / Registrar and / or his employees who are not deputy registrars. The opinion does state that the duties of the Circuit Clerk / Registrar “are primarily to register voters”.

“It has been recently strongly suggested by the Mississippi Department of Audit that secretarial and mechanical assembling and typing of the poll books is a duty of the Circuit Clerk / Registrar to which he is not entitled to compensation other than that provided for in Section 23-5-53(3) allowing compensation for assisting the county election commissioners in performance of their duties in the revision of the registration books and the poll books, which compensation shall be the same daily per diem and limitation on meeting days as provided for the board of election commissioners.

“In order to clarify this matter in Franklin County, we request your opinion on the following:

1. Is it the statutory responsibility of the Circuit Clerk / Registrar to type, assemble and prepare the poll books not necessitated by re-registration, as one of the duties of his office for which he is compensated only under Section 23-5-53(3), as suggested by the State Department of Audit?

2. Is the Board of Supervisors authorized to pay the Circuit Clerk / Registrar and / or his employees for the assembling, typing and production of the poll books not necessitated by re-registration, in addition to the minimal per diem rate allowed by Section 23-5-53(3)?

3. If the Circuit Clerk / Registrar actually assembles, types and prepares “poll books” not necessitated by re-registration, at his sole out-of-pocket cost and he is not compensated for such services by the board of supervisors, then do the “poll books” remain the property of the Circuit Clerk / Registrar not to be used by the election commission?”

Mississippi Code Annotated § 23-5-53 (Supp. 1985) governs the compensation of the registrar. As to an increase in compensation for the registrar, enclosed is a copy of an opinion of this office to Burnell Harris, Circuit Clerk of Jefferson County, dated October 24, 1985, which states in part:

Mississippi Code Ann. Section 23-5-53(1) (Supp. 1985) sets out the range of the registrar's compensation. Section 23-5-53(1) (j) (Supp. 1985) authorizes payment of an additional amount, not to exceed ten thousand dollars ($10, 000), in those counties having two judicial districts. Also, Section 23-5-53(2) (Supp. 1985) allows the board of supervisors in its discretion to increase the registrar's compensation to an unspecified amount in either of the following situations: when a reregistration occurs or when a redistricting that necessitates hiring additional deputy registrars occurs. Further, Section 23-5-53(3) (Supp. 1985) allows a forty dollar ($40.00) per diem for assisting the county election commissioners with revision of registration books and pollbooks or when assisting election commissioners, executive committees, or boards of supervisors in connection with any election.

The opinion concludes that any increase in the registrar's compensation set forth in § 23-5-53(1) (a) - (i) is subject to the express limitations set forth in subsections (1) (j), (2) and (3) of § 23-5-53 . Also, enclosed is a copy of § 23-5-53 .

In response to your first and second questions, it is the opinion of this office that § 23-5-53(3) is controlling. Besides the monthly compensation provided in subsection (1) of § 23-5-53, subsection (3) of said statute allows the registrar to draw an additional $40.00 per diem for each day actually worked in revising the registration books and pollbooks at the request of the county election commissioners. The maximum number of days for which a registrar may be paid for revising the registration books and pollbooks under the facts and circumstances presented in your letter is set out in Miss. Code Ann. § 23-5-81 (Supp. 1985), a copy of which is enclosed.

In view of the compensation provisions provided by § 23-5-53, the answer to your third question is no. The registration books and pollbooks would remain the property of Franklin County to be used for official purposes.

This opinion can neither validate nor invalidate any past actions by the board of supervisors or county registrars on these issues, the legality of which would have to be determined by a court of competent jurisdiction.

Very truly yours,

Edwin Lloyd Pittman Attorney General