Mississippi Advisory Opinions October 16, 1984: 19841016 (October 16, 1984)

Advisory Opinion Text

Hon. Barbara Dunn

Circuit Clerk

Hinds County

P.O. Box 327

Jackson, MS 39205

Dear Ms. Dunn:

Attorney General Edwin Lloyd Pittman has received your letter of request dated August 22, 1984, and has assigned it to me for research and reply. In pertinent part, your inquiry states:

“Please be advised that the town of Terry, Mississippi is not open for business but for four days during a work week, according to the Mississippi Law passed by our legislature in 1984 this Town does not meet the criteria to register voters. As soon as you can I would please ask if you could give me a written opinion as to meeting these criteria.

As to the Town of Bolton, Mississippi, the City Clerk is only part-time and in fact works full time in another capacity. I am attaching attested copies of two persons that work for the City of Bolton and wish an opinion as to whether these persons can be qualified as deputy registrars.”

Chapter 460, Laws of 1984, amended Section 23-5-7, Mississippi Code of 1972, to require the appointment of certain municipal clerks as deputy registrars. This statute states in part the following:

“The State Board of Election Commissioners, on or before the fifteenth day of February succeeding each general election, shall appoint in the several counties registrars of elections, who shall hold office for four (4) years and until their successors shall be duly qualified. The registrar is empowered to appoint deputy registrars, with the consent of the board of election commissioners, who may discharge the duties of the registrar.

The clerk of every municipality with a population of or in excess of five hundred shall be appointed as such a deputy registrar, provided that such clerk is employed by the municipality on a full-time basis and the office of the clerk is held open for regular hours each day.” (Emphasis added.)

Under the provisions of Section 23-5-7, the county registrar is required to appoint certain municipal clerks as deputy registrars. All clerks in municipalities with a population of or in excess of 500 who are employed by the municipality on a full-time basis and whose office is open for regular hours each day shall be appointed deputy registrars.

From a legal standpoint all clerks are considered fulltime in that their legal responsibilities and capacity are the same regardless of the hours worked in a day or a week. Therefore, the determining factor is whether the office of the municipal clerk is held open for regular work hours each day.

Although the meaning of the phrase “open for regular hours each day” is not elaborated upon by the statutes, a review of other statutes of general applicability to the particular factual circumstances may provide guidance. The hours of service of municipal officers and employees are to be fixed by resolution of the governing authorities. See Sections 21-5-17 and 21-9-47 of the Mississippi Code of 1972 . However, because the municipal clerk is acting as a deputy registrar, it may be pertinent to review the statutes pertaining to the hours of service for the county registrar. Sections 25-1-99 provides in part:

“The offices of all circuit and chancery clerks and sheriffs shall be open for business on all business days from 8:00 a.m. to 5:00 p.m. except that within the discretion of the board of supervisors of said county, the above county offices may be closed at 12:00 noon one (1) business day of each week, or may be closed all day Saturday of each week, or may be closed at 12:00 noon on Saturday and at 12:00 noon on one (1) additional business day of each week... “Provided, however, the courthouse shall be closed on all state holidays as set forth in section 3-3-7, and the board of supervisors in its discretion, may close the county offices on those holidays created by executive order of the Governor.”

Assuming that the phrase “regular hours” does not require the municipal clerk's office to be open eight hours a day but only to be open for regular hours on those days, then the phrase “each day” would require the office to be open every business day Monday through Friday each week.

As stated in your request, the clerks of the municipalities of Terry and Bolton do not meet the statutory requirements. Therefore, appointments of these two clerks as deputy registrars, if such appointment is desired, must be under the discretionary authority granted to the county registrar by Section 23-5-7 .

Section 23-5-7 authorizes the county registrar, with the approval of the State Board of Election Commissioners, to appoint deputy registrars in addition to those required to be appointed. These appointments are discretionary with the registrar and the criteria used to select such persons is for the determination of the registrar. However, preclearance of discretionary appointments must be obtained from the United States Department of Justice because Chapter 460 is considered enabling legislation under the Voting Rights Act of 1965, as amended. The no objection letter from the U.S. Department of Justice regarding Chapter 460 is attached.

I hope that the preceding information is sufficient to answer your inquiry. However, if the Attorney General's Office may be of any further assistance, do not hesitate to call or write.

Very truly yours,

Edwin Lloyd Pittman Attorney General