Mississippi Advisory Opinions March 01, 2011: No. 2011-00002 (March 01, 2011)

No. 2011-00002.

Dear Harrison County Election Commissioners:

Attorney General Jim Hood has received your request for an official opinion and has assigned it to me for research and reply.

If an election commissioner should fail to obtain certification and file it by April 30, 2010, with the chancery clerk of the county, is this commissioner authorized to conduct a special election being held January 11, 2011, by attending a special December training class prior to the special election?

It is the opinion of this office that an election commissioner is not prohibited from participating in the conduct of an election in the circumstances described.

In your letter, you state that a special election was set for January 11, 2011 to fill a vacancy for the office of State Representative, District 116. The election commissioner did not file the required certificate by the April 30, 2010, deadline but the board of supervisors found exigent circumstances in accordance with Section 23-15-211(4), thus allowing the commissioner to remain in office.

Opinions of the Attorney General are issued on questions of law for future guidance of those officials entitled to receive them. An Attorney General's opinion can neither validate nor invalidate past action. Therefore, to the extent that your request deals with a past action, we must decline to respond with an official opinion of this office. However, by way of information only, we make the following comments for your future guidance.

Miss. Code Ann. Section 23-15-211, which sets forth the training requirements for election commissioners, states in pertinent part:

(1) There shall be:

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(b) A board of election commissioners in each county to consist of five (5) persons who are electors in the county in which they are to act;

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(2) The board of supervisors of each county shall pay members of the county election commission for attending training events a per diem in the amount provided in Section 23-15-153; however, except as otherwise provided in this section, the per diem shall not be paid to an election commissioner for more than twelve (12) days of training per year and shall only be paid to election commissioners who actually attend and complete a training event and obtain a training certificate.

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(4) 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. The vacancy shall be declared by the board of supervisors and the vacancy shall be filled in the manner described by law. Prior to declaring the office vacant, the board of supervisors shall give the election commissioner notice and the opportunity for a hearing.

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Our office has previously opined that certification is an annual requirement to be documented by a certificate of training issued by the Secretary of State. See MS AG Op., Wilemon (May 23, 2008).

Based on the above statute, an election commissioner is required to attend an annual elections training seminar sponsored by the Secretary of State. The certificate issued by the Secretary of State for attending the seminar is required to be filed annually with the chancery clerk not later than April 30. In the event a commissioner should fail to file the certificate by April 30, the commissioner's office shall be vacated unless the board of supervisors make a factual determination that exigent circumstances exist. Prior to the board of supervisors declaring the vacancy, the commissioner is given notice and an opportunity for a hearing.

Paragraph 4 of the above statute provides that an election commissioner who attends the Secretary of State's annual training seminar receives a certificate that states he is qualified to conduct an election. While the certificate contains the statement the attendee is qualified to conduct an election, the statutory language does not provide that failure to attend the training seminar renders the election commissioner to be ineligible to perform his duties with respect to conducting an election or maintaining voter rolls.

Accordingly, where the board of supervisors has made a factual determination that exigent circumstances exist which prevent an election commissioner from attending the annual training seminar and filing the training certificate with the chancery clerk by April 30, the election commissioner may be permitted to attend a make-up certification training. It is our opinion that the election commissioner in the fact situation you have described would not be prohibited from assisting in the conduct of the January 11, 2011, special election. In this set of facts, such work performed in calendar year 2010 preparing for the January 11, 2011, election, would be without compensation, See MS AG Op., Holleman (January 28, 2011). Compensation for work performed by the election commissioner in calendar year 2011 for the January 11, 2011, special election, would be contingent upon the proper presentation of a Secretary of State elections seminar training certificate to the chancery clerk by April 30, 2011.

Please contact our office if we may be of further assistance.

Very truly yours,

JIM HOOD, ATTORNEY GENERAL

By:

Michael Lanford

Deputy Attorney General