Mississippi Advisory Opinions September 18, 1985: 19850918 (September 18, 1985)

Advisory Opinion Text

Mr. Boyce Holleman

Board of Supervisors

Harrison County Courthouse

Gulfport, Mississippi 39501

Dear Mr. Holleman:

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

A question has arisen as to whether the Board of Supervisors has authority to pay employees hired by the County Registrar (1) to assist in registration and (2) to assist in preparation for elections.

We note that Mississippi Code § 23-5-53 outlines the authorized amount which may be paid to the registrar ($22, 000.00 in Harrison County and an additional $10, 000.00 because of two judicial districts). We also note the provision that the Board by contract may also compensate the County Registrar additional sums in the event of re-registering or re-districting which necessitates the hiring of additional deputy registrars.

Although Code § 23-5-179 authorized the Board to allow compensation of officers rendering services in matter of registration and elections and § 23-5-183 establishes the amount to be paid to election workers, we find no specific provision for hire of said persons except § 23-5-97 which authorizes election commissioners to employ such persons as the Board of Commissioners deems necessary after first obtaining approval of the Board of Supervisors.

In order to clarify this matter in Harrison County, we request your opinion on the following:

1. a. Is the Board of Supervisors authorized to pay workers who are hired by the County Registrar to assist in registration not necessitated by reregistration or re-districting?

b. If so, what is the rate of payment and is prior approval of the Board of Supervisors required before hire?

2. a. Is the Board of Supervisors authorized to pay workers hired by the Registrar to assist in preparing for elections following the close of the registration period?

b. If so, what is the rate of payment and is prior approval of the Board of Supervisors required before the hire?

Pursuant to Miss. Code Ann., § 23-5-179, (1972), as amended, the board of supervisors is authorized “to allow compensation of the officers rendering services in matters of registration and elections, to provide ballot boxes, registration and poll books, and all other things required by law in registration and elections”.

Miss. Code Ann. § 23-5-53, (1972), as amended, provides for compensation to the county registrar and states, inter alia, as follows:

(1) The registrar shall be entitled to such compensation, payable monthly out of the county treasury, as the board of supervisors of the county may allow on an annual basis the following amounts:...

(b) For counties with a total population of more than one hundred thousand (100, 000) and not more than two hundred thousand (200, 000), an amount not to exceed twenty-two thousand dollars ($22, 000.00), but not less than eight thousand dollars ($8, 000.00) ...

(2) In the event of a re-registration within such county, or a redistricting which necessitates the hiring of additional deputy registrars, the board of supervisors may by contract compensate the county registrar amounts in addition to the sums prescribed herein, in its discretion.

(3) 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 election districts 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 23-5-81 and 23-5-183, to be paid from the general fund of the county. (Emphasis added)

Miss. Code Ann., § 23-5-7, (1972), as amended, authorizes the county registrar to appoint deputy registrars and provides as follows:

The state board of election commissioners, on or before the fifteenth day of February succeeding each general election, shall appoint in the several counties registrars of elections, who shall hold office for four (4) years and until their successors shall be duly qualified. The registrar is empowered to appoint deputy registrars, with the consent of the board of election commissioners, who may discharge the duties of the registrar .

The clerk of every municipality with a population of or in excess of five hundred (500) shall be appointed as such a deputy registrar, provided that such clerk is employed by the municipality on a full-time basis and the office of the clerk is held open for regular hours each day.

The county registrar may not be held liable for any malfeasance or nonfeasance in office by any deputy registrar who is a deputy registrar by virtue of his office. (Emphasis added)

According to the above statute, the appointment of the deputy registrars must be consented to by the board of election commissioners. Deputy registrars are authorized by the statute to discharge the duties of the registrar.

Therefore, in response to your questions la., and lb., concerning the authority of the board of supervisors to pay workers hired by the county registrar to assist in registration not necessitated by re-registration or re-districting, it is the opinion of this office that under the above quoted statutes, the registrar is authorized to appoint deputy registrars to assist him in the discharge of his duties. The appointment must be made with a consent of the board of election commissioners. The registrar is entitled to compensation for his duties out of the county treasury as provided in Section 23-5-53 . The registrar may compensate the deputy registrars, appointed with consent of the election commissioners, out of such amounts received by him pursuant to said statute. The amount of compensation to the deputy is within the discretion of the registrar, subject, however, to the provisions of subparagraph 2 of Section 23-5-53, supra, which is contracted with the board. Under § 23-5-179 the board may pay to a deputy registrar the per diem provided in § 23-5-183 when performing duties pursuant to § 23-5-53(3) supra. With respect to compensation of persons performing duties of registration, I direct your attention also to Miss. Code Ann. § 25-7-15 (1972), as amended, a copy of which is attached, which provides for payment to the circuit clerks of certain counties the sum of $12, 000.00 annually “for employment of deputies whose duties are devoted substantially to registration of voters.” This amount would be available if Harrison County meets the qualifications in the statute required for a clerk to receive these funds.

Enclosed is a prior opinion of this office to Maurine H. Bain, dated June 8, 1984, which states that the duties of the registrar are primarily to register voters. The conduct of the party primaries and the general elections are the duties, respectively, of the party executive committee(s) and the county election commission.

The board of election commissioners may employ persons needed to assist them pursuant to Miss. Code Ann. § 23-5-97, (1972), as amended, which provides the following:

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.

In response to your questions 2a. and 2b., concerning the authority of the Board to pay workers hired by the Registrar to assist in election after registration, it is the opinion of this office that persons necessary to assist in preparing for elections may be employed by the board of election commissioners, after prior approval of their employment and compensation by the board of supervisors. This office is unable to find any authority for the county registrar to employ persons to assist in preparing for elections other than as deputy registrars to assist in the discharge of the duties of the registrar.

This opinion can neither validate nor invalidate any past actions by the board of supervisors or county registrar on this issue, the legality of which would have to be determined by a court of competent jurisdiction.

Sincerely,

Edwin Lloyd Pittman Attorney General.