Mississippi Advisory Opinions October 31, 2003: AGO 2003-0554 (October 31, 2003)

Advisory Opinion Text

Benjamin Griffith, Esquire

Attorney for Bolivar County Board of Supervisors

Post Office Box 698

Cleveland, Mississippi 388732

Re: Payment of Hearing Officer

Dear Mr. Griffith:

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

On behalf of the Bolivar County Board of Supervisors, I respectfully request an opinion from your office responsive to the following question:

May a county board of supervisors lawfully pay a hearing officer employed by the county election commission to preside over a contest convened under Miss. Code Ann. Section 23-15-963 (1) (1990), in the absence of prior authorization spread upon the minutes of the board of supervisors approving the employment of such hearing officer?

By way of background, a complaint was filed against the winner of the party primary in a race for one of the seats on the county board of supervisors, contesting the winning candidate's qualifications on the ground of residency or domicile being in another county. The election commission requested an attorney from a neighboring county to serve as a hearing officer for the hearing conducted under Section 23-15-963(1), following which the election commission decided to uphold the primary election and ruled in favor of the candidate whose qualifications had been contested. The hearing officer then forwarded a statement to the county election commission in the amount of $1,620.00, for attending the hearing and review and preparation of certain documents.

Since this proceeding is one that is statutorily authorized under Section 23-15-963, and since the election commission in this instance appears to come within the meaning of “appropriate election officials” who are commanded by Section 23-15-963(2) to meet and rule upon the petition, it appears that a hearing was mandated although there does not appear to be in the statute any reference to a hearing officer or authority to hire one.

My research has included a review of Miss. Code Ann. Section 23-15-219 (1990), which sets forth the procedure for a board of election commissioners to employ persons to assist the commission in the performance of its duties, Miss. Code Ann. Section 25-1-47 (1972), as amended, which authorizes a board of supervisors to employ counsel to represent and defend county officers and employees under certain circumstances, and official AG Opinion dated March 24, 1993 issued to Walter W. Teel, 1993 Miss. AG LEXIS 140 (1993), construing Section 23-15-219 .

Mississippi Code Annotated Section 23-15-219 (Revised 2001) authorizes county election commissions to employ persons to provide assistance to such commissions. It provides in part:

(1) The board of election commissioners is hereby authorized and empowered to employ and set or determine the duties of and determine the compensation of such investigators, legal counsel, secretaries, technical advisors and any other employees or persons who or which said board or a majority thereof may deem necessary to enable them to discharge the duties and obligations presently or hereafter vested in them. However, before employing such persons or setting or determining said compensation, the election commissioners must first have the approval of the board of supervisors of the county .

(2) The board of supervisors of the county is authorized and empowered to pay out of the general fund of the county the salaries and necessary traveling and subsistence expenses of said employees of said board of commissioners in such amounts as may be mutually agreed upon by the said board of supervisors and said board of election commissioners,..... (emphasis added)

Section 96 of the Mississippi Constitution of 1890 prohibits the payment of compensation to any person for any claim under a contract not authorized by law.

Since the employment in question did not have the statutorily required approval of the Bolivar County Board of Supervisors, we are of the opinion that no compensation would be authorized.

Sincerely,

Mike Moore Attorney General

Mike Lanford Attorney General