Mississippi Advisory Opinions September 21, 2001: AGO 000014682 (September 21, 2001)

AGO 000014682.

Dear Ms. Scott:

Attorney General Mike Moore has received your request for an official opinion from this office and has assigned it to me for research and reply. A copy of your letter is attached for reference.

In summary, your letter points out that House Bill 685 was passed by the Mississippi Legislature in the 2001 Regular Session and was precleared and became effective on June 13, 2001. House Bill 685 changes the number of days for which county election commissioners may receive compensation. Since these commissioners are compensated on a calendar year basis there may be some confusion as to how many per diem days commissioners may be entitled to for calendar year 2001.

You then present three (3) specific questions concerning this matter.

QUESTION 1: Under the pre-House Bill No. 685 provisions of Miss. Code Ann. Section 23-15-153 (3) and (4), a county election commissioner in a county with 30,000 qualified electors could claim a maximum of 10 days per diem for revising the pollbooks for the April 17 flag election as well as a maximum of 35 per diem days for conducting that election. In most cases, that election commissioner would have already been paid for those per diem days. Subsequently, House Bill N. 685 has been precleared and is in effect. That law combines commissioners' conduct of election and poll book revision days, giving counties greater flexibility to use their per diem days according to county needs. It also changes the manner in which election commissioners are compensated, basing it on county population instead of its number of qualified electors. The pertinent new language addressing the maximum number of per diem days allowed for commissioners in counties with 30,000-70,000 residents provides:

"(c) In counties having thirty thousand (30,000) residents according to the latest federal decennial census, but less than seventy thousand (70,000) residents according to the latest federal decennial census, not more than one hundred (100) days per year, with no more than thirty-five (35) additional days allowed for the conduct of each election in excess of one (1) occurring in any calendar year;"

If the population of an election commissioner's county according to the 2000 federal decennial census is 50,000, (he resides in a county with 30,000 qualified electors), is the election commissioner now eligible to claim any additional per diem days for the conduct of the April 17 flag election (or any other special election held prior to June 13, 2001) under the post-June 13, 2001, language of House Bill No. 685?

RESPONSE: On April 17, 2001 (prior to the effective date of House Bill 685) Mississippi Code Annotated Section 23-15-153(3) provided in part:

The commissioners of election shall be entitled to receive a per diem in the amount of Seventy Dollars ($70.00), 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.

Also on April 17, 2001 Section 23-15-153(4) provided in part:

Subject to the following limitations, the commissioners of election shall be entitled to receive a per diem in the amount of Seventy Dollars ($70.00), 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: ...

(c) In counties having twenty-five thousand (25,000)qualified electors but less than fifty thousand (50,000) qualified electors, not more than thirty-five (35) days per election;

We are of the opinion that the statutory provisions in effect on April 17, 2001 are controlling as to the number of per diem days county election commissioners may lawfully claim. Therefore, the commissioners of a county with 30,000 qualified electors on April 17, 2001 would be entitled to claim a maximum of 45 days (35 days for conducting the flag election and 10 days for revising the poll books for a special election). In other words, House Bill 685 does not grant any additional days for the April 17 flag referendum or any other election conducted prior to June 13.

QUESTION 2: Another county had less than 10,000 qualified electors as of the April 17 flag election and has a population of less than 15,000 according to the 2000 federal decennial census. This county, however, will have no called special elections in calendar year 2001, nor will it have an election on the November 6, 2001 regular special election day. In this case, the question is whether county election commissioners in this county are eligible for the maximum of 25 days (15 for the conduct of the flag election, 10 days for purging) provided for under pre-House Bill No. 685 law, plus the 50 days they are eligible to receive under House Bill No. 685 for calendar year 2001, if they perform purging work entitling them to the 50 additional days allowed under House Bill No. 685.

RESPONSE: Mississippi Code Annotated Section 23-15-153(2) as amended by House Bill 685. (2001 Regular Session) provides in part:

Except as provided in subsection (3) of 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 Seventy Dollars ($70.00), 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:

(a) In counties having less than fifteen thousand (15,000) residents according to the latest federal decennial census, not more than fifty (50) days per year, with no more than fifteen (15) additional days allowed for the conduct of each election in excess of one (1) occurring in any calendar year;

It is the opinion of this office that county election commissioners are entitled to claim per diem days for revising the registration books and pollbooks during calendar year 2001 up to the maximum number authorized by House Bill 685 even though the new law only became effective on June 13, 2001 provided, of course, that such purging is necessary and the work is performed and documented as required by law. Per diem days authorized and lawfully claimed for special elections prior to June 13, such as the flag election, do not, in our opinion count against the total days authorized under the new law.

QUESTION 3: The maximum number of per diem days that some county election commissioners are entitled to receive will increase as a result of overall population growth in their county and because of the new variable per diem categories based on population that are contained in House Bill No. 685. Since House Bill No. 685 became effective in approximately the middle of the calendar year, must county election commissioners (who in fact work the required number of hours to claim a per diem day) in some way allocate or pro-rate the number of days they may claim between the number they may claim under the pre-House Bill No. 685 version of Miss. Code Ann. Section 23-15-153 and the number of days they may claim under House Bill No. 685?

RESPONSE: It is the opinion of this office that the number of per diem days county election commissioners may lawfully claim is that prescribed by House Bill 685 based on the population figures of the 2000 federal decennial census provided, of course, that all hours worked are actually required, performed and documented as required by law. We find no requirement to pro-rate the number of days for calendar year 2001 between the "old law" and the "new law." Again, per diem days specifically authorized and lawfully claimed for special elections prior to June 13 do not, in our opinion, count against the total days authorized under the new law.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

By:

Phil Carter

Special Assistant Attorney General