Mississippi Advisory Opinions May 11, 1994: AGO 000009510 (May 11, 1994)

AGO 000009510.

Dear Mr. Pittman:

Attorney General Mike Moore has received your letter of request and has assigned it to me for research and reply. Your letter states:

"I would like to request an opinion on the above referenced matter by April 7, 1994, if at all possible.

If this does not give you proper time, we desperately need same by May 1, 1994, so the problem can be solved prior to the beginning of training sessions for primary elections to be held this year.

The problem began with the pollworkers being required to attend training only ONCE every twelve months (MCA 23-15-239). This was several years ago and has yet to be clearly addressed.

MCA 23-15-239 states clearly that the Commissioners of Election in conjunction with the Circuit Clerk shall conduct this training. However, MCA 23-15-263, dated August 31, 1993, states all the duties of county executive committees with no mention of training of pollworkers. This section does however state, "And perform all other duties required by law", which could mean thing not mentioned in this section.

My question is:

1. Who is legally responsible for training pollworkers prior to a primary election, the county executive committee or the County Election Commissioners? MCA 23-15-239 clearly says Commissioners.

2. If the county executive committees train the pollworkers, is an election commissioner required to be present at that training session to make certain they are properly trained?

3. If the Election Commission does not conduct the training and is not required to be present if same is conducted by the executive committee, the Commissioners of Election will be forced to break the (1) year training law in MCA 23-15-239, as they would have to hold their own training session prior to the General Election to make certain pollworkers are properly trained and have the proper certificates as required by law.

Pursuant to a conversation with Reese Partridge on this date, I learned that the 1994 Events Calendar from the Secretary of State is incorrect for the date of June 2nd, 1994. Mr. Partridge advised that I should go by the law in the Code (23-15-239) which states that the Election Commission shall train the pollworkers no later than June 2, 1994."

It has long been the position of this office that, in reading Mississippi Code Annotated Sections 23-15-239 & 23-15-263 (Revised 19090) in pari materia it is the duty and responsibility of the appropriate party executive committees to train pollworkers who are to serve in the respective party primaries.

This is consistent with the County Election Officials' Handbook compiled and distributed by the Office of Secretary of State first published in 1989. Section VI (G) of the above cited handbook is headed "Training of Pollworkers" and states:

"The appropriate election officials (the Party Executive Committee for primary elections and the Election Commission for other elections), in conjunction with the Circuit Clerk, are responsible for conducting training sessions not fewer that five (5) days before the election to instruct the pollworkers as to their duties in the proper administration of the election and the operation of the polling place."

The fact that section 23-15-239 was amended to provide that no person shall serve in any election unless he has received the appropriate training during the twelve month period immediately preceding the election in which that person has been appointed to serve, does not, in our opinion, shift the responsibility of training pollworkers for primary elections to the election commission. It remains the duty and responsibility of the respective party executive committees to insure that persons who are to serve in their party's primary have been properly trained.

If an individual appointed by an executive committee to serve as a pollworker in a party primary has previously worked in a special or general election and received training from the appropriate election commission within the twelve month period immediately preceding the primary, the executive committee may, but is not required to, find that such individual has been properly trained. Likewise, if an individual appointed by a county election commission to serve as a pollworker in a general or special election has previously worked in a primary election and received training from the appropriate executive committee within the twelve month period immediately preceding the general or special election, the election commission may, but is not required to, find that such individual has been properly trained. Election commissioners are required by Section 23-15-127 to revised the pollbooks that are to be used in primary elections.

Election commissioners must not participate in the appointment or training of pollworkers for primary elections or in any other phase of the preparation or conduct of a primary election except the revision of the pollbooks as noted above. This is extremely important in order to avoid conflicts of interest because if a primary is contested, Section 23-15-931 requires the election commissioners to sit with the judge as "advisors or assistants in the trial and determination of facts". Obviously, if county election commissioners participated in the conduct of a primary and a contest was filed, the commissioners could be placed in the untenable position of being required to advise the judge and assist in making factual determinations relating to their own actions.

In direct response to your specific questions, it is the opinion of this office that: 1) The respective county party executive committees are legally responsible for training pollworkers to work in primary elections; 2) Election commissioners are not required to be present at the training of pollworkers for primary elections; and 3) Election commissioners have the discretion to find that individuals who have been trained by a party executive committee during the twelve month period immediately preceding a general or special election have been properly trained, but are not required to do so.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

BY: Phil Carter Assistant Attorney General

PC:sm