Mississippi Advisory Opinions October 02, 2015: AGO 2015-00337 (October 02, 2015)

Advisory Opinion Text

AUTH: Liz Bolin

RQNM: Van Lowry

SUBJ: Elections – Commissioners

SBCD: 64

TEXT: Van B. Lowry, President

Election Commissioners’ Association of Mississippi

475 River Bend Rd.

Columbia, MS 39429

Re: Reimbursement for travel expenses

Dear Mr. Lowry:

Attorney General Hood is in receipt of your request for an official opinion and it has been assigned to me for research and reply.

Background and Questions Presented

Your letter states, in part:

After the past election (August, 2015), several Election Commissioners did not receive reimbursement for travel expenses for performing their duties on Election Day. This denial was based on a letter dated January 21, 2015 by the State Auditor's office.

The Mississippi Election Code, 23-15-227, compensation of Managers, clerks, and other persons generally states that individuals who are required to carry supplies to the place of voting from the courthouse are authorized mileage reimbursement if they use a privately owned vehicle.

During ECAM Training Sessions (at Hattiesburg and Brandon) in the summer of 2015, the Attorney General's Representative stated that the Election Commissioners were included in this section of the code.

Election Commissioners are required to maintain and test voting equipment, and poll managers are not specifically trained to perform this duty. Some, but not all counties contract this service.

Would election commissioners receive travel pay for the following situations?

1. Carrying needed equipment/supplies to a polling place. For example: additional ballots.

2. Traveling to a polling place during an election to repair voting equipment.

3. Insuring that poll workers are properly performing their duties.

Response

1. Miss. Code Ann. Section 23-15-227 authorizes an election commissioner to receive mileage for performing the duty of carrying official ballots, ballot boxes, pollbooks, and other necessities to or from the polling places in the event the appointed poll manager is unable to perform these duties. An election commissioner must provide justification (i.e. explain why a poll manager was unable to perform these duties) in order to receive the mileage.

2. No.

3. No.

Applicable Law and Analysis

Miss. Code Ann. Section 23-15-227 states:

(1) The managers and clerks shall be each entitled to Seventy-five Dollars ($75.00) for each election; however, the board of supervisors may, in its discretion, pay the managers and clerks an additional amount not to exceed Fifty Dollars ($50.00) per election.

(2) The manager or other person who shall carry to the place of voting, away from the courthouse, the official ballots, ballot boxes, pollbooks and other necessities, shall be allowed Ten Dollars ($10.00) for each voting precinct for so doing. The manager or other person who acts as returning officer shall be allowed Ten Dollars ($10.00) for each voting precinct for that service. If a person who performs the duties described in this subsection utilizes a privately owned motor vehicle to perform them, he or she shall receive for each mile actually and necessarily traveled in excess often (10) miles, the mileage reimbursement rate allowable to federal employees for the use of a privately owned vehicle while on official travel .

(3) The compensation authorized in this section shall be allowed by the board of supervisors, and shall be payable out of the county treasury.

(4) The compensation provided in this section shall constitute payment in full for the services rendered by the persons named for any election, whether there be one (1) election or issue voted upon, or more than one (1) election or issue voted upon at the same time. (Emphasis added).

Miss. Code Ann. Section 23-15-227 specifically refers to the compensation of poll managers including additional pay for the managers who deliver ballot boxes and supplies to the polling places before the opening of polls and return same to the courthouse following the closing of polls. Prior to 2013, the statute only authorized an additional $10.00 for each manager "or other person" who performed these duties. An amendment to the statute in 2013 added the provision for mileage reimbursement.

Conclusion

The mileage provision is applicable to a poll manager or other person who delivers ballot boxes and supplies to the polling place prior to the opening of the polls and returns the items to the courthouse following the closing of polls. In response to your first question, we are of the opinion that Miss. Code Ann. Section 23-15-227 authorizes an election commissioner to receive mileage for carrying official ballots, ballot boxes, pollbooks and other necessities to or from the polling places in the event the appointed poll manager is unable to perform these duties. We emphasize that an election commissioner should only perform this duty under exigent circumstances, and a commissioner must provide justification (i.e. explain why a poll manager was unable to perform the duties) in order to receive the mileage.

In response to your second and third questions, we find no authority for an election commissioner to receive mileage for traveling to a polling place during an election to repair voting equipment or to ensure that poll workers are properly performing their duties. We point out that election commissioners are entitled to a per diem of $150.00 for performing their duties on election day at any general or special election. (See Miss. Code Ann. Section 23-15-153(4)(b).

Please let us know if this office can be of further assistance.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

Elizabeth S. Bolin, Special Assistant Attorney General.