Mississippi Advisory Opinions November 13, 2015: AGO 2015-00404 (November 13, 2015)

Advisory Opinion Text

AUTH: Liz Bolin

RQNM: Rep. Greg Snowden

SUBJ: Elections - Commissioners

SBCD: 64

TEXT: Representative Greg Snowden

P.O. Box 3807

Meridian, MS 39303-3807

Re: Compensation of Election Commissioners

Dear Representative Snowden:

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

On behalf of the Clarke County Board of Supervisors your letter states, in part:

Miss. Code Ann. Section 23-15-153 sets forth the duties of county election commissioners and provides for compensation payable to the commissioners for the performance of those duties. The Clarke County Election Commission (“the Commission”) is mindful that in order to conduct official business, a quorum of the members must be present. At times in the past, however, individual commissioners have performed ministerial tasks without a quorum being present, and have claimed and been paid compensation therefor. Their understanding heretofore has been that performing ministerial tasks in the absence of a quorum is permissible so long as no official business is being conducted.

Recently it has come to light that one of the election commissioners has claimed and been paid for considerably more days of work than the remaining commissioners. There is no allegation that the work was not actually performed, that it was not ministerial in nature, or that it is in excess of the total number of days allowed by the law. The single issue is that there has been one commissioner who has been putting in more days than her colleagues, for which she has been paid, without the remaining commissioners having knowledge of her additional work.

When the situation was brought to the attention of the full Commission membership, a majority of the commissioners refused to consent or ratify the additional work of the single commissioner. The Board of Supervisors is now uncertain of how to proceed, given the division of opinion among the election commissioners, and desires the guidance of your office.

The following questions are presented:

1. Is the consent and approval of the Election Commission and/or of the Board of Supervisors required in order for one or more commissioners to be paid for performing non-official, ministerial duties of the office, when no quorum of the Commission is present?

2. If a commissioner has submitted claims and has already been paid for days on which the commissioner performed non-official, ministerial tasks, may the Election Commission and/or the Board of Supervisors ratify the claims after the fact and, if so, is the affirmation action of both the Commission and the Board required to effect this?

3. If the answer to question no. 2 is negative, then does the Board of Supervisors have the duty to demand repayment from the election commissioner of the compensation paid when a majority of the Election Commission has refused to consent or ratify the compensation claims of the commissioner in question?

Applicable Law

With regard to election commissioner pay for work performed without a quorum present, this office has stated:

As to the compensation of individual commissioners working when a quorum is not present, it is our opinion that Section 23-15-153(2) which provides the per diem for the commissioners contemplates that the commission as a whole be in session. The commission cannot be in session if a quorum is not present. However, we recognize that the nature of the work requires that individual commissioners perform certain tasks preliminary to the action of officially revising the voting records by a quorum of the commission. Therefore, if the commission determines, consistent with the facts, that in order to fulfill its' statutory responsibilities it is necessary for individual commissioners to work when a quorum is not present and the county board of supervisors, by lawful order, authorizes compensation for such work not to exceed the total number of days allowed by statute for revising the registration books and pollbooks, individual commissioners would be entitled to compensation for such work as authorized in said order.

MS AG Op., Mitchell (February 13, 1990). (Emphasis added).

Conclusion

In order for individual commissioners to claim pay for performing work when a quorum is not present, the election commission must make a finding that to fulfill its duties, it is necessary for individual commissioners to work when a quorum is not present. Once such a finding has been made by the commission, the board of supervisors may authorize compensation for the work. In response to your first question and assuming that the findings above have been made, we find no requirement that the election commission ratify the work of an individual commissioner in order for the commissioner to receive pay. Our response to the first question renders the second and third questions moot.

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

Sincerely,

JIM HOOD, ATTORNEY GENERAL

Elizabeth S. Bolin, Special Assistant Attorney General