Mississippi Advisory Opinions April 03, 2015: AGO 2015-00067 (April 03, 2015)

Advisory Opinion Text

AUTH: Phil Carter

RQNM: Frances Taylor

SUBJ: Elections - Commissioners

SBCD: 64

TEXT: The Honorable Frances Taylor

Copiah County Election Commissioner

Post Office Box 467

Hazlehurst, Mississippi 39083

Re: Election Commissioners' Compensation.

Dear Commissioner Taylor:

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

Issue Presented

Your letter states in part:

This letter is concerning our conversation of March 10, 2015 where we discussed paragraph 8 of the Mississippi Code Section 23-15-153 for election commissioners' compensation.

We are requesting an opinion as to whether, when we sign a contract with the parties, the primary is considered as other elections and, therefore, we are entitled to the 25 extra days for the general and 14 days for the runoff.

Response

When a county election commission has a written agreement with a county party executive committee to perform the duties of said committee, the days the commissioners are employed in the conduct of a primary election are treated the same as days the commissioners are employed in the conduct of other elections.

We are of the opinion that if the Copiah County Election Commission, pursuant to a written agreement with a county party executive committee in accordance with Section 23-15-266, performs the tasks authorized by that statute for and on behalf of the committee in the conduct of a 2015 primary election, the commissioners are entitled to claim a per diem for not more than an additional twenty-five (25) days for the conduct of the 2015 General Election.

It is our further opinion that the Copiah County Election Commissioners may lawfully claim not more than an additional fourteen (14) days for the necessary time they spend in the performance of the tasks authorized by Section 23-15-266 in conducting any resulting runoffs.

Applicable Law and Discussion

Section 23-15-266 provides:

A county or municipal executive committee shall be eligible to enter into written agreements with a circuit or municipal clerk or a county or municipal election commission as provided for in Section 23-15-239(2), 23-15-265(2), 23-15-267(4), 23-15-333(4), 23-15-335(2) or 23-15-597(2), only if the political party with which such county or municipal executive committee is affiliated:

(a) Has cast for its candidate for Governor in the last two (2) gubernatorial elections ten percent (10%) of the total vote cast for governor; or

(b) Has cast for its candidate for Governor in three (3) of the last five (5) gubernatorial elections twenty-five percent (25%) of the total vote cast for Governor.

We understand that the number of days that the Copiah County Election Commissioners may claim for compensation purposes is governed by Section 23-15-153(2)(b) which authorizes the commissioners to claim not more than seventy-five (75) days per year, with no more than twenty-five (25) additional days allowed for the conduct of each election in excess of one (1) occurring in any calendar year.

Section 23-15-153 provides, in part:

(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:

(b) In counties having fifteen thousand (15, 000) residents according to the latest federal decennial census but less than thirty thousand (30, 000) residents according to the latest federal decennial census, not more than seventy-five (75) days per year, with no more than twenty-five (25) additional days allowed for the conduct of each election in excess of one (1) occurring in any calendar year;.....

(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.

(8) County commissioners of election who perform the duties of an executive committee with regard to the conduct of a primary election under a written agreement authorized by law to be entered into with an executive committee shall receive per diem as provided for in subsection (2) of this section. The days that county commissioners of election are employed in the conduct of a primary election shall be treated the same as days county commissioners of election are employed in the conduct of other elections.

(9) Every commissioner of election shall sign personally a certification setting forth the number of hours actually worked in the performance of the commissioner's official duties and for which the commissioner seeks compensation. The certification must be on a form as prescribed in this subsection. The commissioner's signature is, as a matter of law, made under the commissioner's oath of office and under penalties of perjury. (Emphasis added)

While Section 23-15-153(5) specifically provides that commissioners may claim no more than an additional fourteen (14) days for days actually employed in the conduct of a runoff following a "general or special election, " 23-15-153(8) provides that the days commissioners are employed in the conduct of a primary shall be treated the same as days they are employed in the conduct of other elections. Therefore, the days spent by commissioners in the performance of their contractual duties relating to a primary runoff are to be treated the same as the days they spend in the conduct of runoffs following general and special elections.

Section 23-15-153 provides that county election commissioners are to be paid the stated per diem for every day or period of no less that 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.

In accordance with Section 23-15-153(9), each commissioner must personally sign a certification setting forth the number of hours actually worked in the performance of the commissioner's official duties and for which the commissioner seeks compensation. The certification must be on the "Per Diem Claim Form" prescribed in that subsection.

Sincerely,

JIM HOOD, ATTORNEY GENERAL.

Phil Carter, Special Assistant Attorney General.