Mississippi Advisory Opinions March 09, 1987: 19870309 (March 09, 1987)

Advisory Opinion Text

Honorable Sue Sautermeister

Hinds County Election Commissioner

106 Cativo Drive

Jackson, Mississippi 39211

Dear Ms. Sautermeister:

Attorney General Edwin Lloyd Pittman has received your letter of request and has assigned it to me for research and reply. Based upon your letter and your representations before our opinion committee, we understand that you are requesting our opinion as to the maximum number of days for which election commissioners may receive a per diem for performing their various duties and responsibilities as election commissioners. As per your request, we have reconsidered our prior opinions to the Honorable Rick Fortenberry and the Honorable Ray Mabus dated November 7, 1986, and these opinions are hereby withdrawn.

We preface our response by stating that this opinion is prospective in nature only and can neither validate nor invalidate any past actions. Such validation or invalidation must necessarily be by ruling of a court of competent jurisdiction.

The Mississippi Election Code took effect on January 1, 1987. There are several sections of this code which are pertinent to the questions raised by your request. We will specifically refer to §§ 23-15-153, 23-15-155, 23-15-157 and 23-15-227 (Supp.1986; special pamphlet) in our response. We will address our opinion to a hypothetical county having 77, 000 qualified electors. We will divide our opinion into three parts: General statewide elections, congressional elections and special elections.

GENERAL STATEWIDE ELECTIONS

A general statewide election is conducted once every four (4) years pursuant to § 23-15-193 and Section 140 of the Constitution. In our opinion, the election commissioners of our hypothetical county would be required to meet on the following dates for the purpose of revising the registration books and poll books:

(1) Pursuant to § 23-15-157, beginning on the Tuesday after the second Monday in January. The maximum per diem allowed for this meeting would be thirty (30) days.

(2) Pursuant to § 23-15-155, beginning on the third Monday of July. The maximum per diem allowed for this meeting would be thirty (30) days.

(3) Pursuant to § 23-15-153, ten (10) days before the first Tuesday after the first Monday of August. The maximum per diem allowed for this meeting would be ten (10) days.

(4) Pursuant to § 23-15-153, beginning on the second Monday of September. The maximum per diem allowed for this meeting would be thirty (30) days.

(5) Pursuant to § 23-15-155, ten (10) days before the first Tuesday after the first Monday of November. The maximum per diem allowed for this meeting would be ten (10) days.

The above listing sets forth the dates upon which the election commissioners are required to meet for the purpose of revising the registration and poll books. It also sets forth the maximum number of days for which an election commissioner may receive a per diem relative to each specific meeting. We find, however, a statutory limitation on the per diem to be allowed an election commissioner in connection with any one election. See § 23-15-227. Accordingly, there would be a maximum limitation of fifty-five (55) days for the August primary election and a maximum of fifty-five (55) days for the November general election. The “purging” meetings in July and ten (10) days before the first Tuesday after the first Monday of August would be included in the maximum number of days allowed for the primary election. Likewise, the purging meeting in September would be included in the maximum number of days allowed for the general election. Because the January meeting required by § 23-15-157 is required to be held annually without respect to whether an election is conducted, we believe that the thirty (30) days maximum for this meeting would apply separately from the maximum limitations provided by § 23-15-227. Therefore, the election commissioners of our hypothetical county would be entitled to a per diem for services rendered in their official capacity for a maximum of one hundred forty (140) days in the year of a general statewide election calculated as follows:

Annual Meeting	30 days
Primary Election (including purging)	55 days
General Election (including purging)	55 days
Total	140 days

[NOTE: This 140 day calculation does not include any days which may be allowed for special elections and does not include the possible additional day each month which may be allowed pursuant to § 23-15-153(3) ].

CONGRESSIONAL ELECTIONS

Pursuant to § 23-15-1033, congressional elections are held on the first Tuesday after the first Monday of November in the year 1986, and every two years thereafter. Accordingly, a congressional election will never be held in the same year with the general statewide election. Pursuant to § 23-15-1031, the first primary election for congressmen shall be held on the first Tuesday of June in the years in which congressmen are elected except in presidential election years. In presidential election years, pursuant to § 23-15-1083, the first primary for congressmen will be conducted on the second Tuesday in March. In our opinion, the election commissioners of our hypothetical county would be required to meet on the following dates in a congressional election year for the purpose of revising the registration books and poll books:

(1) Pursuant to § 23-15-157, beginning on the Tuesday after the second Monday in January. The maximum per diem allowed for this meeting would be thirty (30) days.

(2) Pursuant to § 23-15-155, in a presidential election year, beginning on the third Tuesday in February. The maximum per diem allowed for this meeting would be thirty (30) days.

(3) Pursuant to § 23-15-153, in a presidential election year, ten (10) days before the second Tuesday in March. The maximum per diem for this meeting would be ten (10) days.

(4) Pursuant to § 23-15-155, in a non-presidential election year, on the third Tuesday of May. The maximum per diem allowed for this meeting would be thirty (30) days.

(5) Pursuant to § 23-15-153, in a non-presidential election year, ten (10) days before the first Tuesday in June. The maximum per diem for this meeting would be ten (10) days.

(6) Pursuant to § 23-15-153, on the second Monday of September. The maximum per diem allowed would be thirty (30) days.

(7) Pursuant to § 23-15-155 ten (10) days before the first Tuesday after the first Monday of November. The maximum per diem allowed for this meeting would be ten (10) days.

Again, as with the general statewide elections, § 23-15-227 would provide a statutory maximum for the number of days for which an election commissioner could receive a per diem pertaining to any one election. Accordingly, the maximum would be fifty-five (55) days for the congressional primary election and fifty-five (55) days for the congressional general election. The purging days immediately preceding either of these elections would be included in the fifty-five (55) days total. Again, as with the general statewide elections, the thirty (30) days allowed for the January meeting would be counted separately. Therefore, it is our opinion that in congressional election years the maximum per diem which election commissioners could receive would be limited to one hundred forty (140) days calculated as follows:

Annual Meeting	30 days
Primary Election (including purging)	55 days
General Election (including purging)	55 days
Total	140 days

[NOTE: This 140 day calculation does not include any days which may be allowed for special elections and does not include the possible additional day each month which may be allowed pursuant to § 23-15-153(3) ].

SPECIAL ELECTIONS

Pursuant to § 23-15-227, the statutory limitation contained in that section will apply to all elections conducted on the same day. Therefore, if a special election is held on the same day as a regular or general election, it would not increase the maximum number of days for which an election commissioner may be paid.

If a special election is conducted at a time when no other election is being held, pursuant to either § 23-15-153 or § 23-15-155, the election commission would be required to meet ten (10) days prior to the election for the purpose of revising the registration and poll books. The fifty-five days limitation provided by § 23-15-227 would apply to such a special election separately from any other election held in that year. Therefore, the maximum per diem which an election commissioner could receive for all of his services pertaining to this special election would be fifty-five (55) days.

Please be advised that there are a number of judicial decisions and official opinions from this office which hold that the primary and general election constitute one election. We have herein, for the specific purpose of compensating election officials, treated the primary and general election as separate elections. It is the opinion of this office that such was the intent of the legislature in this specific area. It should be noted, however, that nothing in this opinion is meant to conflict with prior judicial decisions or other decisions of this office as to whether the primary and general elections are one election. The application of this opinion is strictly limited to the payment of election officials for their service as outlined herein.

We trust that the foregoing will be of benefit. Should you have any questions or if we may be of further assistance, please do not hesitate to contact this office.

Very truly yours,

Edwin Lloyd Pittman Attorney General.

John H. Emfinger Special Assistant Attorney General.