Mississippi Advisory Opinions June 13, 2008: AGO 2008-00289 (June 13, 2008)

Advisory Opinion Text

Andrew Dulaney, Esquire

Attorney for Tunica County

Board of Supervisors

Post Office Box 188

Tunica, Mississippi 38676

Re: Circuit Clerk's Compensation for Programming Election Machines

Dear Mr. Dulaney:

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

Issue Presented

Whether the Board of Supervisors of Tunica County, Mississippi is authorized to pay the Tunica County Circuit Clerk for forty-five (45) days of programming election machines pursuant to Mississippi Code Annotated Section 23-15-225(3) .

Response

We are of the opinion that if the facts are that the party executive committee actually programmed the voting machines and the circuit clerk provided assistance in such programming, the circuit clerk, pursuant to Section 23-15-225(3) , would be entitled to claim per diem for each day or period of not less than five (5) hours accumulated over two or more days she was engaged in such activity subject to the limitation on days set forth in Section 23-15-153.

Obviously, we are unable to make that factual determination.

For your information, we are enclosing a copy of our opinion to the Honorable Martha Mitchell, dated May 12, 2006. In that opinion, we said that if there is an agreement in place between the circuit clerk and a party executive committee pursuant to Sections 23-15-266 and 23-15-333 authorizing the circuit clerk to program the voting machines the clerk would be entitled to compensation in an amount agreed upon by the two parties and approved by the county board of supervisors.

Applicable Law and Discussion

Mississippi Code Annotated Section 23-15-225(3) provides:

As compensation for their services in assisting the county election commissioners in performance of their duties in the revision of the registration books and the pollbooks of the several voting precincts of the several counties and in assisting the election commissioners, executive committees or boards of supervisors in connection with any election, the registrar shall receive the same daily per diem and limitation on meeting days as provided for the board of election commissioners as set out in Sections 23-15-153 and 23-15-227 to be paid from the general fund of the county.

We have previously opined that circuit clerks are entitled to claim per diem days for their services assisting party executive committees pursuant to Section 23-15-225(3) . MS AG Op ., Dulaney (November 16, 2007).

Mississippi Code Annotated Section 23-15-301 provides in pertinent part:

All the expenses of printing the tickets or primary election ballots, for necessary stationery, and for paying the managers, clerks and returning officer of every primary election authorized by this chapter held in any county shall be paid by the board of supervisors of such county out of the general funds of the county, but such officers of primary elections shall receive only such compensation as is authorized by Section 23-15-227 to be paid managers, clerks and returning officer for like services in holding elections thereunder.

This office has opined that programming the new direct electronic voting equipment (DRE) is the modern day equivalent of “printing the tickets or primary election ballots” and that circuit clerks or election commissioners may be entitled to compensation for performing that task by the county board of supervisors out of the county general fund in accordance with an agreement entered into pursuant to Section 23-15-266. MS AG Op ., Mitchell (May 12, 2006).

If the executive committee wants to contract with the circuit clerk, then they can do so pursuant to Section 23-15-266, which involves certain specific tasks during the primary elections. Section 23-15-333 authorizes such a contract for the printing of the ballots.

Conclusion

We are of the opinion that a circuit clerk is entitled to a per diem pursuant to Section 23-15-225(3) , subject to the limitations of Section 23-15-153, if and only if the clerk has provided assistance to a party executive committee in the performance of a task being performed by that committee.

A circuit clerk who enters an agreement with a party executive committee pursuant to Section 23-15-266, whereby the clerk will perform certain tasks specified therein, would be entitled to compensation in an amount agreed upon by the two parties and approved by the county board of supervisors.

Sincerely,

Jim Hood Attorney General

Phil Carter Special Assistant Attorney General