Mississippi Advisory Opinions October 13, 2000: AGO 000014037 (October 13, 2000)

AGO 000014037.

Dear Mr. McLeod:

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

Miss. Code Ann., Section 23-15-153 (1972) describes the circumstances when county election commissioners can receive per diem compensation. An Attorney General Opinion dated March 9, 1987 states that primary and general elections are separate events for the purpose of such compensation of election commissioners. Subsequent changes to the aforementioned statute have occurred that raise questions regarding the continued validity of that 1987 opinion.

1. Are primary and general elections separate events for the purpose of per diem compensation of county election commissioners? Does Section 23-15-153(4) encompass primary and general elections?

2. With regard to primary elections: a. What actions relevant to a primary election would allow a county election commissioner to be compensated? b. How would the per diem compensation be calculated? c. Would that compensation count against the total per diem compensation allowed under Section 23-15-153(2) and/or (4)?

3. Are primary run-offs part of the primary election or are they the equivalent of a special election for county election commissioner per diem compensation purposes?

We preface our responses to your questions by stating that the amendments to Mississippi Code Annotated, Section 23-15-153 (Supp. 2000) since our opinion to Honorable Sue Sautermeister, dated March 9, 1987 significantly changed the way county election commissioners are compensated.

We further preface our responses by stating that county election commissioners prepare for and conduct general and special elections but have no authority in the conduct of primary elections. The duties and responsibilities for conducting primary elections lie with the appropriate party executive committees. County election commissions are responsible for preparing the poll books for primaries. See Section 23-15-127.

Section 23-15-153(2) provides for county election commissioners to be compensated a specified number of days based on the number of qualified electors in their county for the necessary time spent in the revision (purging) of the registration books and poll books. A "day" is defined as a period of no less than five (5) hours during a particular day or five (5) hours accumulated over two (2) or more days actually employed in the performance of their duties. That statute now sets annual limitations on days that county commissioners may be paid for purging.

Section 23-15-153(3) provides for county election commissioners to be compensated a specified number of days for the necessary time spent in the revision of the registration books and poll books for special elections, subject to certain limitations and specifies that the regular special election day in November of each year is not to be considered a special election. A "day" under this statute is the same as defined above.

Section 23-15-153(4) provides for county election commissioners to be compensated a specified number of days based on the number of qualified electors in their county for every day actually employed in the performance of their duties in the conduct of an election. Again, a "day" is the same as defined above. Also, as previously stated, county election commissioners do not conduct primary elections.

With the above in mind and in response to the first part of your first question, the purging duties of county election commissioners are subject to an annual limitation regardless of the number of regularly scheduled primary or general elections. As stated above, they would be entitled to additional days for purging only for special elections except those conducted on the regular special election day in November. Therefore, for purposes of compensation of county election commissioners for their purging duties pursuant to Section 23-15-153(2), primary and general elections are not separate events in the sense that would entitle commissioners to compensation in excess of the stated annual limitation on days.

In response to the second part of your first question, Section 23-15-153(4) does not encompass primary elections because county election commissioners have no duties in the conduct of primaries.

In response to the first part of your second question, the revision of the poll books for a primary election pursuant to Section 23-15-127 would entitle a county election commissioner to be compensated pursuant to Section 23-15-153(2) subject to the annual limitation specified therein.

In response to the second part of your second question, a per diem may be earned in one of two ways. First, a period of not less than five (5) hours during a particular day would entitle a commissioner to a per diem. Second, a period of less than five (5) hours worked during a particular day may be carried forward and added to other periods of less than five (5) hours. Once a total of five (5) hours is accumulated over a period of two (2) or more days, the commissioner would also be entitled to a per diem.

In response to the third part of your second question, any per diem earned for work in connection with revising primary election poll books would count against the annual limitation set forth in Section 23-15-153(2). Again, no per diem pursuant to Section 23-15-153(4) could be earned with regard to a primary election because county election commissioners have no duties in the conduct of primaries.

In response to your third question, a runoff or second primary is a part of the primary. As previously stated, the only duties county election commissioners have in connection with a primary is to revise the poll books which are used in both the first primary and any resulting runoff.

Sincerely,

MIKE MOORE

ATTORNEY GENERAL

By: Phil Carter

Special Assistant Attorney General

/pc