Mississippi Advisory Opinions May 15, 2015: AGO 2015-00146 (May 15, 2015)

Advisory Opinion Text

AUTH: Phil Carter

RQNM: Malcolm Jones

SUBJ: Elections - Commissioners

SBCD: 64

TEXT: Malcolm F. Jones, Esquire

Attorney for City of Pass Christian

Post Office Drawer 368

Pass Christian, Mississippi 39571

Re: Compensation of County Election Commissioners for Preparing Voter Registration Books for City of Pass Christian

Dear Mr. Jones:

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

Issue Presented

You seek our opinion clarifying the City’s responsibilities pursuant to an agreement with the County Election Commission mandated by Section 23-15-153(7) in light of the Election Commissioners claim for compensation for per diem for up to five (5) additional days for each commissioner over and above their compensation for their regular “purging” duties that require them to revise the registration books for the entire county including electors who reside within the municipalities.

Response

The registration books for the county and the municipalities within the county are prepared by the county election commissioners while performing their regular “purging” duties pursuant to Section 23-15-153 paragraphs 1 through 6. In order for commissioners to be entitled to additional days pursuant to paragraph 7, they must show that they were “actually employed” in preparing the registration books for the municipality over and above their regular purging duties to avoid being paid twice for performing the same duties. We are not aware of any circumstances that would require such additional work.

Background

Mississippi Code Annotated Section 23-15-153(1) through (6) (Supplement 2014) requires each county election commission to meet at specified times at the office of the registrar (circuit clerk) and revise the registration books and poll books of the several voting precincts of the entire county by “erasing” the names of all persons erroneously on the books, or who have died, removed or become disqualified as electors from any cause.

Section 23-15-153(7) requires county election commissions to prepare the registration books of each municipality located within the county pursuant to an agreement between the county and each municipality in the county. See MS AG Op. Diaz (July 25, 2014).

Section 23-15-153(7) provides that county election commissioners shall be paid a per diem of $84 for each day or period of not less than five (5) hours accumulated over two (2) or more days the commissioners are actually employed in preparing the registration books for the municipality not to exceed five (5) days.

Applicable Law and Discussion

Section 23-15-153 provides, in part:

(1) At the following times, the commissioners of election shall meet at the office of the registrar and carefully revise the registration books and the pollbooks of the several voting precincts, and shall erase from those books the names of all persons erroneously on the books, or who have died, removed or become disqualified as electors from any cause; and shall register the names of all persons who have duly applied to be registered and have been illegally denied registration:

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Except for the names of those persons who are duly qualified to vote in the election, no name shall be permitted to remain on the registration books and pollbooks; however, no name shall be erased from the registration books or pollbooks based on a change in the residence of an elector except in accordance with procedures provided for by the National Voter Registration Act of 1993 that are in effect at the time of such erasure. Except as otherwise provided by Section 23-15-573, no person shall vote at any election whose name is not on the pollbook.

(2) Except as provided in this section, and subject to the following annual limitations, the commissioners of election shall be entitled to receive a per diem in the amount of Eighty-four Dollars ($84.00), to be paid from the county general fund, for every day or period of no less than five (5) hours accumulated over two (2) or more days actually employed in the performance of their duties in the conduct of an election or actually employed in the performance of their duties for the necessary time spent in the revision of the registration books and pollbooks as required in subsection (1) of this section:

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(3) In addition to the number of days authorized in subsection (2) of this section, the board of supervisors of a county may authorize, in its discretion, the commissioners of election to receive a per diem in the amount provided for in subsection (2) of this section, to be paid from the county general fund, for every day or period of no less than five (5) hours accumulated over two (2) or more days actually employed in the performance of their duties in the conduct of an election or actually employed in the performance of their duties for the necessary time spent in the revision of the registration books and pollbooks as required in subsection (1) of this section, for not to exceed five (5) days.

(4) (a) The commissioners of election shall be entitled to receive a per diem in the amount of Eighty-four Dollars ($84.00), to be paid from the county general fund, not to exceed ten (10) days for every day or period of no less than five (5) hours accumulated over two (2) or more days actually employed in the performance of their duties for the necessary time spent in the revision of the registration books and pollbooks prior to any special election. For purposes of this paragraph, the regular special election day shall not be considered a special election. The annual limitations set forth in subsection (2) of this section shall not apply to this paragraph.

(b) The commissioners of election shall be entitled to receive a per diem in the amount of One Hundred Fifty Dollars ($150.00), to be paid from the county general fund, for the performance of their duties on the day of any general or special election. The annual limitations set forth in subsection (2) of this section shall apply to this paragraph.

(5) The commissioners of election shall be entitled to receive a per diem in the amount of Eighty-four Dollars ($84.00), to be paid from the county general fund, not to exceed fourteen (14) days for every day or period of no less than five (5) hours accumulated over two (2) or more days actually employed in the performance of their duties for the necessary time spent in the revision of the registration books, pollbooks and in the conduct of a runoff election following either a general or special election.

(6) The commissioners of election shall be entitled to receive only one (1) per diem payment for those days when the commissioners of election discharge more than one (1) duty or responsibility on the same day.

(7) The county registrar shall prepare the pollbooks and the county commissioners of election shall prepare the registration books of each municipality located within the county pursuant to an agreement between the county and each municipality in the county. The county commissioners of election and the county registrar shall be paid by each municipality for the actual cost of preparing registration books and pollbooks for the municipality and shall pay each county commissioner of election a per diem in the amount provided for in subsection (2) of this section for each day or period of not less than five (5) hours accumulated over two (2) or more days the commissioners are actually employed in preparing the registration books for the municipality, not to exceed five (5) days. The county commissioners of election and county registrar shall provide copies of the registration books and pollbooks to the municipal clerk of each municipality in the county. The municipality shall pay the county registrar for preparing and printing the pollbooks. A municipality may secure “read only” access to the Statewide Centralized Voter System and print its own pollbooks using this information; however, county commissioners of election shall remain responsible for preparing registration books for municipalities and shall be paid for this duty in accordance with this subsection. (Emphasis added)

Section 23-15-165 provides, in part:

(1) From and after July 1, 2002, the Office of the Secretary of State, in cooperation with the local registrars and election commissioners, shall begin to procure, implement and maintain an electronic information processing system and programs capable of maintaining a centralized database of all registered voters in the state. The system shall encompass software and hardware, at both the state and county level, software development training, conversion and support and maintenance for the system. This system shall be known as the “Statewide Elections Management System” and shall constitute the official record of registered voters in every county of the state.

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(4) The Secretary of State may, with the assistance of the advisory committee, adopt rules and regulations necessary to administer the Statewide Elections Management System. Such rules and regulations shall at least:

(a) Provide for the establishment and maintenance of a centralized database for all voter registration information in the state;

(b) Provide procedures for integrating data into the centralized database;

(c) Provide security to insure that only the registrar, or his designee or other appropriate official, as the law may require, can add information to, delete information from and modify information in the system;

(d) Provide the registrar or his designee or other appropriate official, as the law may require, access to the system at all times, including the ability to download copies of the industry standard file, for all purposes related to their official duties, including, but not limited to, exclusive access for the purpose of printing of all local pollbooks;

As noted in your letter, county election commissioners are entitled to compensation for the days they are “actually employed” in “preparing” the municipal voter registration books.

It is our understanding that, in performing the regular “purging” duties required by Section 23-15-153(1) through (6), the entry of any changes into the Statewide Election System (SEMS) creates and “prepares” the registration books for the county and the municipalities located within the county and automatically places each voter in the correct county and municipal voting districts. Therefore, unless the commissioners can show that they were “actually employed” in preparing the registration books for the municipality over and above their regular purging duties, they could not legally be paid the compensation provided for in Section 23-15-153(7). Without that showing such compensation would result in them being paid twice for the same hours worked which, obviously, is prohibited.

Sincerely,

JIM HOOD, ATTORNEY GENERAL.

Phil Carter, Special Assistant Attorney General.