Mississippi Advisory Opinions December 23, 2010: No. 2010-00681 (December 23, 2010)

No. 2010-00681.

Dear Mr. Holleman:

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

You state that the Harrison County Board of Supervisors determined that, due to exigent circumstances, an election commissioner's office should not be vacated for failure to obtain the required certificate of training from the Office of Secretary of State and ask if that determination also allows her to be paid.

No. The statutory provision that an election commissioner who does not receive a certificate issued by the Secretary of State shall not receive compensation is separate and distinct from the statutory provision that allows boards of supervisors to find that the failure of a commissioner to receive the certificate was due to exigent circumstances and that her position should not be vacated.

Mississippi Code Annotated Section 23-15-211 (Supp. 2010) requires county election commissioners to receive election training conducted and sponsored by the Secretary of State. Paragraph (4) provides in part:

Each participant shall receive a certificate from the Secretary of State indicating that the named participant has received the elections training seminar instruction and that each participant is fully qualified to conduct an election. Commissioners of election shall annually file the certificate with the chancery clerk. If any commissioner of election shall fail to file the certificate by April 30 of each year, his office shall be vacated, absent exigent circumstances as determined by the board of supervisors and consistent with the facts. .... . (Emphasis added)

Section 23-15-153 sets the compensation of county election commissioners. Paragraph (9) provides:

Any commissioner of election who has not received a certificate issued by the Secretary of State pursuant to Section 23-15-211 indicating that the commissioner of election has received the required elections seminar instruction and that the commissioner of election is fully qualified to conduct an election, shall not receive any compensation authorized by this section, Section 23-15-491 or Section 23-15-239.

We have previously opined that a county board of supervisors has no authority to pay an election commissioner any per diem unless the required training certificate is filed annually with the chancery clerk by April 30. MS AG Op., Wilemon (May 23, 2008).

The fact that a county board of supervisors, in accordance with Section 23-15-211(4), made the determination that an election commissioner's office should not be vacated because of exigent circumstances that prevented her from receiving the required certificate of training from the Secretary of State does not negate the provisions of Section 23-15-153 that prohibit the receipt of compensation by commissioners who fail to obtain the required certificate.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By:

Phil Carter

Special Assistant Attorney General