Mississippi Advisory Opinions November 03, 2000: AGO 000014082 (November 3, 2000)

AGO 000014082.

Dear Ms. Butler:

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

Please issue a legal opinion as to the number of days a circuit clerk is entitled to receive per diem for assisting both the democratic executive committee and the republican executive committee in the conduct of primary elections held by each committee on the same day.

Pursuant to Section 23-15-303 "When two (2) or more political parties or political organizations are holding primary elections, each shall be conducted entirely independent of the other but at the same time." Based upon this code section would a democratic primary and a republican primary conducted on the same day be considered one (1) election or two (2) separate elections?

Pursuant to Section 23-15-153 (4) (b) Monroe County Election Commissioners are entitled to receive not more than twenty five (25) days per diem per election. Section 23-15-225 (3) allows circuit clerks to receive the same per diem as election commissioners for assisting election commissioners, executive committees or boards of supervisors in connection with any election.

Based upon Section 23-15-153 (4) (b) and Section 23-15-225 (3) would I, as circuit clerk, be entitled to receive the maximum per diem of twenty five (25) days for assisting the democratic executive committee and also receive the maximum of twenty five (25) days for assisting the republican executive committee for a total of fifty (50) days or would I only be entitled to receive a total of twenty five (25) days for assisting both committees?

Based on the wording of Mississippi Code Annotated, Section 23-15-303 (Revised 1990) accurately quoted in your letter, we are of the opinion that democratic and republican primaries held on the same day are two (2) separate and distinct elections.

In our opinion addressed to Joe C. Griffin, Esquire, dated February 11, 1992 (copy enclosed) we opined that county registrars may lawfully receive more than one per diem for the same day provided, of course, that the registrar, either personally or through a deputy, actually performs required and necessary duties in assisting each entity. In Griffin we also stated that we found no requirement that an election commission or a party executive committee be in session and present with the registrar in order for the registrar to perform ministerial tasks of assistance and be entitled to appropriate compensation.

We point out that subsequent to Griffin the Mississippi Legislature amended Mississippi Code Annotated, Section 23-15-153 (Supp. 2000) to require that in order for election commissioners to qualify for a per diem they must actually be employed in the performance of their duties for a minimum of five (5) hours during a day or a period of five (5) hours accumulated over two (2) or more days for each election.

As you pointed out in your letter, for assisting election commissioners and party executive committees in connection with any election, a registrar is entitled to receive the same per diem that commissioners receive and are subject to the same limitations on the number of days for which they may be compensated per election. Therefore, we are of the opinion, that a registrar must be actually employed in assisting one of these entities, either personally or through a deputy, for a minimum of five (5) hours during a day or for a minimum of five (5) hours accumulated over two (2) or more days in order to claim a per diem. As previously indicated, if a registrar, either personally or through a deputy, is actually employed in assisting both the democratic and republican executive committees for the requisite period during the same day, he or she would be entitled to claim two (2) per diems.

Sections 23-15-153 (4) and 23-15-225 (3) authorize registrars to claim up to a specified maximum number of days for providing assistance in the conduct of each election based on the number of qualified electors in their respective counties. The fact that a democratic primary and a republican primary are held on the same day does not, in our opinion, limit registrars to claiming compensation for assisting in the conduct of only one election provided they are employed, personally or through a deputy, for the required hours in the performance of necessary work in assisting both executive committees.

Sincerely,

MIKE MOORE

ATTORNEY GENERAL

By: Phil Carter

Special Assistant Attorney General

/pc

Enclosure