Mississippi Advisory Opinions March 07, 2003: AGO 000015500 (March 7, 2003)

AGO 000015500.

Dear Ms. Young:

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

My law firm represents Harrison County, Mississippi. An issue has come up before the Harrison County Board of Supervisors regarding the payment to certain members of the Harrison County Election Commission who performed work for Harrison County 2003 Redistricting.

The Commissioners performed work outside the perimeters of the Election Commission, upon request by Gayle Parker, Circuit Court Clerk, Harrison County, MS. The Election Commissioners then submitted a bill to the Harrison County Board of Supervisors for payment requesting that the Board hire them through the use of a "Nunc Pro Tunc" Order, to retroactively approve the Commissioners' redistricting work.

In support of their position, the Commissioners cited the Attorney General Opinion to Honorable Joe W. Martin, Jr., dated May 31, 2002, Opinion No. 2002-0326. The work which the Commissioners want payment for was a) work not required to be performed by the Registrar or Deputy Registrar; and b) work above the regular statutory duties of the Election Commissioners.

The specific questions are:

1) Can the Board hire the Commissioners on a part-time basis with a "Nunc Pro Tunc" Order?

2) If not, can they be paid by other authority, such as the "claims docket" procedure?

In response to your first question, we have previously said that the purpose of a nunc pro tunc order is to correctly evidence a previous action which was not accurately recorded and that a board may not retroactively approve actions through the use of such order. See MS AG Op., Blackwell (March 2, 1995), copy attached.

Therefore, absent a finding, consistent with the facts, that the board previously and lawfully employed one or more commissioners on a part-time basis to perform certain redistricting tasks that are over and above their regular duties in revising and maintaining the county voter rolls, a nunc pro tunc order would not be authorized. See Miss-Constitution of 1890, Section 96.

In response to your second question, we know of no authority for a board of supervisors to compensate commissioners for redistricting work over and above their regular "purging" duties for which compensation is provided for in Mississippi Code Annotated, Section 23-15-153 (Revised 2001) without first employing them in accordance with our opinion addressed to Honorable Joe W. Martin, dated May 31, 2002, copy attached.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

By:

Phil Carter

Special Assistant Attorney General