Mississippi Advisory Opinions June 01, 1988: 19880601 (June 01, 1988)

Advisory Opinion Text

Honorable Donald G. Kruger

Attorney

Jefferson Davis County

Board of Supervisors

Post Office Box 1193

Prentiss, Mississippi 39474

Dear Mr. Kruger:

Attorney General Mike Moore has received your letter of request and has assigned it to me for research and reply. A copy of your letter is attached hereto and incorporated herein by reference. In addition to your letter, I have spoken when you by phone on several occasions and have also spoken with members of the Jefferson Davis County Democratic Executive Committee. It would appear from your letter and from these conservations that certain members of the democratic executive committee and election commission performed various duties in the counting center during your March primaries. For their performance of these duties members of the executive committee and the election commission expected payment pursuant to Miss. Code Ann. § 23-15-227 (Supp. 1987) . In your letter you request an opinion of this office as to whether removal members of the county election and/or members of the executive committee are entitled to such compensation for services rendered during a primary election.

Although we do not issue opinions to validate or invalidate past actions, it is essential here that we consider the propriety of members of the county election commission and/or the county executive committee working as managers, clerks or deputized personnel in the counting center. Because members of the county election commission, pursuant to Miss. Code Ann. § 23-15-931 (Supp. 1987), will sit as advisers to the judge in any contest of a primary election and because the county election commission has no other duties relative to the conduct of a primary election, it is the opinion of this office that it is inappropriate for members of the election commission to become personally involved in the conduct of such primary election. As we have stated on a number of occasions, an election contest may involve the physical conduct of the election and the counting of the ballots. It would be an extreme conflict to both participate in the physical conduct of the election and counting of the ballots and to assist the court in ruling on the propriety of such actions.

To initiate a contest of a primary election, a complaint must be filed with the executive committee. See, Miss. Code Ann. § 23-15-921 (Supp. 1987) . Once a complaint is filed it becomes the duty of the executive committee to investigate the allegations of the complaint and by a majority vote to declare the true results of the primary. As stated above, because an election contest may well involve the physical conduct of the election as well as the counting of the ballots, it is inappropriate to allow members of the executive committee to personally participate in the process and then rule on the validity of the actions taken. However, because the executive committee is charged with the conduct of primary elections, it is not inappropriate for members of the executive committee to respond to questions from poll workers during the conduct of the primary. It is also required that members of the executive committee be present at the counting center to oversee such activities. See, Miss. Code Ann. §§ 23-15-483 and 23-15-523 (Supp. 1987) . Members of the executive committee should not, however, become physically involved in the handling or counting of the ballots.

Therefore, because of the potential conflicts expressed above, members of the county election commission and members of the county executive committee for any party should not be employed during a primary election as either a manager or clerk at the polls or as deputies in the counting center. Although the Code does not specifically refer to the manner of selection or the rate of compensation of persons who work in the counting center, it is the opinion of this office that such persons should be selected and trained in the same manner as managers and clerks and should receive the same compensation.

The county executive committee is charged with the same duties and responsibilities as the election commissioner regarding primary elections. We find no statutory authority for members of the executive committee to be compensated for their services in this regard. Although the statutes provide that members of the county election commission may receive a per diem for their duties in physically conducting general and special elections, there is no comparable statute authorizing such a per diem for members of the county executive committee. In the absence of express statutory direction, it is the opinion of this office that it is inappropriate to compensate members of the county executive committees for their partisan political activities in this regard. Executive committee members are not paid with county funds.

Although we do not issue opinions on interpretations of federal law, we would bring to your attention, the possible applicability of § 5 of the Voting Rights of 1965, as amended and extended. Certain provisions of this act require that any change effecting a practice, policy or procedure which touches on voting or elections must be approved pursuant to the act prior to the time such a change is enforced. We suggest that you consider the past practice in Jefferson Davis County in order to determine whether a decision to refuse payment to such persons would now constitute such a change.

Hopefully you will find this responsive to your request. Should you have any questions or if we may be of further assistance, please do not hesitate to contact this office.

Sincerely,

Mike Moore Attorney General.

John H. Emfinger Special Assistant Attorney General.