Mississippi Advisory Opinions July 14, 2017: AGO 2017-00188 (July 14, 2017)

Advisory Opinion Text

AUTH: Phil Carter

RQNM: Danny Glaskox

SUBJ: Elections - Commissioners

SBCD: 64

TEXT: The Honorable Danny Glaskox

Chairman, Jackson County Election Commission

4111 Amonett Street

Pascagoula, Mississippi 39567

Re: Costs of preparing for and conducting election of municipal separate school district trustees

Dear Commissioner Glaskox:

Attorney General Jim Hood received your letter of request and assigned it to me for research and reply.

Background

You cite Senate Bill 2463 (the Bill), Regular Session 2017, which provides that, beginning in 2017, in any municipal separate school district that is traversed by the Escatawpa River and in which Interstate Highway 10 and Mississippi Highway 63 intersect, the board of trustees shall consist of five (5) members, each to be elected for a term of four (4) years. The school district described is the Moss Point Municipal Separate School District.

It further provides that, within forty-five (45) days after the effective date of the Bill (July 1, 2017), the municipal governing authority shall apportion the municipal separate school district, including any added territory outside the corporate limits, into five (5) special trustee election districts.

The Bill further provides for the election of the trustees. Such elections are now conducted by the county election commissions. MS AG Op., Hood (June 14, 2013).

Generally, municipal governing authorities appoint a specified number of municipal separate school district trustees from within the corporate limits, and trustees from the added territory are elected by the qualified electors of the added territory. See Mississippi Code Annotated Section 37-7-203. These elections are “stand-alone” elections because they are neither county nor municipal elections. The election of municipal separate school district trustees from five (5) special election districts encompassing the municipal corporate limits and the added territory outside the corporate limits as mandated by the Bill is unique. Both municipal qualified electors and county qualified electors who reside in the added territory outside the corporate limits will vote in those elections. Therefore, the elections mandated by the Bill will not appear on regular county or municipal election ballots but, rather, are the only elections that will appear on the ballot.

With this in mind, we will address your questions.

Questions

Question 1: Who is responsible for the cost of apportioning the area into the 5 special election districts?

Question 2: Who is responsible for the cost of inputting these changes into the SEMS database?

Question 3: Who is responsible for the cost of conducting the election? Would it be paid by the municipality or the county?

Responses

In response to your first question, we find nothing to indicate that the municipality is to be paid or reimbursed by the school district for apportioning the school district into five (5) special election districts. Therefore, we are of the opinion that such expenses must be borne by the municipality.

In response to your second and third questions, we are of the opinion that the cost of preparing for and conducting the election of trustees of the municipal separate school district mandated by the Bill is to be borne by the school district.

The preparation for the election includes the necessary input of information into the Statewide Election Management System (SEMS). It is our further opinion that the commissioners and registrar are to be paid their regular per diem pursuant to Sections 23-15-153 (4)(a) and 23-15-225(3).

Legal Analysis

Effective July 1, 2017, the Bill amends Section 37-7-203 to provide, in part:

Beginning in 2017, in any municipal separate school district that is traversed by the Escatawpa River and in which Interstate Highway 10 and Mississippi Highway 63 intersect, the board of trustees of the municipal separate school district shall consist of five (5) members, each to be elected for a term of four (4) years in the manner provided in this subsection. Within forty-five (45) days after the effective date of this act, the municipal governing authority shall apportion the municipal separate school district, including any added territory outside the corporate limits, into five (5) special trustee election districts as nearly equal as possible according to population, incumbency and other factors pronounced by the courts before August 8, 2017. The municipal governing authority shall place upon its minutes the boundaries determined for the new five (5) trustee election districts and shall publish the same in a newspaper of general circulation within the school district for at least three (3) consecutive weeks. After having given notice of publication and recording the same upon the minutes of the municipal governing authority, the new district lines shall be effective.

While the Bill requires the municipal governing authorities to apportion the school district into five (5) special trustee election districts, there is no indication that the municipality is to be paid or reimbursed for the expenses associated with such apportionment.

The most analogous statutory provisions for assessing the cost of preparing for and conducting the elections mandated by the Bill are found in Mississippi Code Annotated Section 23-15-153(7), which provides:

The county registrar shall prepare the pollbooks and the county commissioners of election shall prepare the registration books of each municipality located within the county pursuant to an agreement between the county and each municipality in the county. The county commissioners of election and the county registrar shall be paid by each municipality for the actual cost of preparing registration books and pollbooks for the municipality and shall pay each county commissioner of election a per diem in the amount provided for in subsection (2) of this section for each day or period of not less than five (5) hours accumulated over two (2) or more days the commissioners are actually employed in preparing the registration books for the municipality , not to exceed five (5) days . The county commissioners of election and county registrar shall provide copies of the registration books and pollbooks to the municipal clerk of each municipality in the county. The municipality shall pay the county registrar for preparing and printing the pollbooks . A municipality may secure “read only” access to the Statewide Centralized Voter System and print its own pollbooks using this information; however, county commissioners of election shall remain responsible for preparing registration books for municipalities and shall be paid for this duty in accordance with this subsection. (Emphasis added)

This statute requires county election commissioners and county registrars to prepare registration books and pollbooks for the municipalities located in their respective counties. It then requires each municipality to pay county commissioners the actual cost of preparing the registration books and pollbooks and to pay each election commissioner the per diem provided for in Section 23-15-173(2). It further requires the municipalities to pay the county registrar for preparing and printing the pollbooks. Section 23-15-225 further provides that the county registrars be paid the same per diem as the commissioners for assisting them in the performance of their duties.

Traditionally, the costs of the election of trustees from the added territory of municipal separate school districts has been borne by the school district. MS AG Op., Freeland (April 19, 2002).

In Freeland , we said that the expenses involved in preparing and printing the ballots and the preparation of the list of qualified electors must be borne by the school district but that we found no authority for the compensation of individuals who conduct the particular type of election. The “type of election” for such trustees in 2002 was a caucus type of election conducted in March of the appropriate year where the qualified electors of the added territory of the school district met at a specified location and organized by electing a chairman and secretary and proceeded to elect the trustees.

Section 37-7-215 now requires municipal separate school district trustees to be elected on the first Tuesday after the first Monday in November of each year and “in the same manner as general, state and county elections are held.”

Therefore, the election of municipal separate school district trustees is now conducted by the county election commissions in November of the appropriate years. While the Bill is silent regarding the compensation of county election commissioners and the county registrar for preparing for and conducting these elections, we are of the opinion that they are entitled to receive the compensation provided for in Sections 23-15-153 and 23-15-225(3) for preparing for and conducting these elections just as they receive in preparing for and conducting other elections.

In the same manner that municipalities compensate county election commissioners and county registrars for the preparation of the municipal registration books and pollbooks pursuant to Section 23-15-153 (7) for municipal elections, we are of the opinion that the municipal separate school district described in the Bill is required to compensate the county election commissioners and county registrar for preparing for and conducting the municipal separate school district trustee elections mandated by the Bill.

Conclusion

We are of the opinion that the cost of apportioning the municipal separate school district into five (5) special trustee election districts by the municipal governing authorities must be borne by the municipality.

It is our further opinion that the municipal separate school district is obligated to pay the county election commissioners and county registrar for the performance of their duties in preparing for and conducting the election of the municipal separate school district trustees pursuant to the Bill, including any necessary costs of inputting information into the SEMS database.

The commissioners and registrar are to be paid their regular per diem , pursuant to Sections 23-15-153(4)(a) and 23-15-225(3), for preparing for and conducting the elections mandated by the Bill.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

Phil Carter, Special Assistant Attorney General