Mississippi Advisory Opinions February 24, 2006: No. 2006-0065 (February 24, 2006)

No. 2006-0065.

DOCK 2006-0065

Dear Mr. Robinson:

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

I am writing you to request an opinion regarding pay to county election commissioners. The specific question being is there any authority for a board of supervisors to compensate election commissioners for traveling throughout the county to educate and orient the public in use of the new Diebold electronic voting machine. They will be attending churches, community clubs, and other local gatherings to educate the public in use of these new voting machines.

Mississippi Code Annotated Section 23-15-531.7 (Supp. 2005) provides for the demonstration of direct recording electronic voting equipment (DRE) such as the Diebold voting machines. It provides:

The officials in charge of the election shall place on public exhibition and demonstrate the use of the DRE units throughout the county or municipality during the month preceding each primary and general election. At least during the initial year in which DRE equipment is used in a county or municipality, all officials in charge of the election shall offer a series of demonstrations and organized voter education initiatives to educate electors in the use of such equipment in voting.

In addressing the question of compensation for election commissioners as it pertained to work necessitated by a redistricting order issued by a county board of supervisors, we previously opined that election commissioners could be employed and compensated on a part-time basis to perform that work provided the work involved is not required to be performed by the registrar or deputy registrar and such work is over and above the regular statutory duties of the election commissioners. MS AG Op. Martin (May 31, 2002).

The demonstration of DRE units is a statutory duty of county election commissions. Therefore, we are of the opinion that county boards of supervisors are without authority to compensate election commissioners for demonstrating the new Diebold voting machines except pursuant to Section 23-15-153 as discussed below.

Section 23-15-153 provides that county election commissioners shall be paid a per diem of seventy dollars ($70.00) for each day spent in revising the poll books and registration books or in the conduct of an election. That statute limits the number of days that commissioners may be paid for such work based on the population of their particular county according to the latest federal decennial census.

We are of the opinion that the demonstration of the new Diebold voting machines in accordance with Section 23-15-531.7 constitutes an integral part of the conduct of an election by a county election commission. Therefore, in our opinion, individual county election commissioners are entitled to per diem compensation pursuant to Section 23-15-153 for conducting such demonstrations. However, we caution that election commissioners must insure that they properly allocate their days in a manner that will allow them to properly perform all other duties relating to the revision of the registration books and poll books and the proper conduct of elections. We point out that we have previously opined that commissioners may not be reimbursed for mileage or other travel expenses when they are receiving a per diem authorized by Section 23-15-153. MS AG Op. Pruett (February 12, 1999).

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By:

Phil Carter Special Assistant Attorney General