Mississippi Advisory Opinions February 12, 1992: AGO 000005610 (February 12, 1992)

AGO 000005610.

Dear Mr. Griffin:

Attorney General Mike Moore has received your letter of request and has assigned it to me for research and reply. Your letter presents six (6) questions which we will repeat and respond to in sequence.

QUESTION 1

Is the Circuit Clerk and/or a Deputy Circuit Clerk entitled to compensation for extended office hours for the purpose of registering voters or voting absentee ballots pursuant to Sections 23-15-37 (2) and 23-15-259 of the Mississippi Code of 1972?

RESPONSE

Mississippi Code Annotated Section 23-15-225 (Revised 1990) sets the salary range for county registrars and authorizes certain additional compensation for the performance of specific tasks. It provides in part:

"(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:

...

(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 voting precincts 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 23-15-153 and 23-15-227, to be paid from the general fund of the county.

(4) In any case where an amount has been allowed by the board of supervisors pursuant to this section, such amount shall not be reduced or terminated during the term for which the registrar was elected.

(5) The circuit clerk shall, in addition to any other compensation provided for by law, be entitled to receive as compensation from the board of supervisors One Thousand Dollars ($1,000.00) per year for the performance of his duties in regard to the conduct of elections."

We find no provision that authorizes additional compensation for the extended office hours referred to in your letter. Further, the activities of registering voters and facilitating absentee voting are routine, recurring duties of the Registrar for which he is compensated pursuant to Section 23-15-225 (1).

Therefore, it is the opinion of this office that county registrars would not be entitled to compensation over and above what has be set by their respective boards of supervisors pursuant to Section 23-15-225 (1) for maintaining extended office hours for registration and absentee balloting purposes. The salaries of the registrars of the individual counties may, of course, be increased subject to the limitations set forth in said statute. The compensation of a regular county employee who is also a deputy registrar and who is given the additional responsibility of registering voters during these extended hours could be increased at the discretion of the board of supervisors.

QUESTION 2

May the Circuit Clerk receive compensation from the county for performing the official duties of the Democratic and/or Republican Executive Committees in connection with elections after having agreed with said executive committees so to do, pursuant to Section 23- 15-225 (3) or any other section?

RESPONSE

Circuit Clerks as county registrars are entitled to receive compensation on a per diem basis as provided in Section 23-15-225 for "assisting the election commissioners, executive committees or boards of supervisors in connection with any election". The general duties of a county executive committee are set forth in Sections 23-15-263, -265, -299, -333 and -335. There are certain duties which are non-delegable and must be performed by the committee such as ruling on the qualifications of candidates, appointing pollworkers and certifying the election. The ministerial acts such as having the ballots printed may, in our opinion, be performed by the registrar. For the performance of these ministerial acts and others which facilitate the executive committee in performing its official duties, the registrar would be entitled to the per diem compensation as provided in Section 23-15-225(3).

QUESTION 3

For the Registrar to receive a daily per diem for assisting the election commissioners and/or executive committees pursuant to Section 23-15-225 (3), must the election commissioners and/or executive committees be in session and present with the Registrar?

RESPONSE

We find no requirement that the commission or committees actually be in session and present with the Registrar in order for the Registrar to perform the ministerial tasks discussed above and be entitled to appropriate compensation.

QUESTION 4

May the Registrar receive a daily per diem pursuant to Section 23-15-225 (3) for assisting each, if more than one, of the entities listed therein on any single day?

RESPONSE

It is the opinion of this office that county registrars may lawfully receive more than one per diem for the same day provided, of course, that the registrar, either personally or through a deputy, actually performs required and necessary duties in assisting each entity.

QUESTION 5

What penalty exists for the knowing and willful failure of an elected official to file annual reports pursuant to Section 7-3-45 of the Mississippi Code of 1972, with the Board of Supervisors to be spread upon the minutes of said Board; and what public official is charged with the duty to insure compliance?

RESPONSE

It is the opinion of this office that the filing required by Section 7-3-45 is not complete if an officer fails to file a copy of his report with the appropriate board of supervisors. It is our further opinion that the Secretary of State, upon notification by a board of supervisors that an officer has failed to file the required copy, could initiate penalty proceedings pursuant to Section 7-3-47.

QUESTION 6

Is it the responsibility of the County Registrar to transfer the voter registration list of a county from the poll books to computer storage when the county provides a computer for such purpose; and, if so is that responsibility compensated under that compensation called for under Section 23-15-225 (1) of the Mississippi Code of 1972?"

RESPONSE

Chapter 440, Laws of 1991, if precleared by the U.S. Department of Justice will become effective July 1, 1992 and will require each county to adopt an automated voter registration system but makes no specific provisions as to the transfer of the names of registered voters to the automated system. Likewise, we find no specific statutory procedure in current law on the question. However, since Section 23-15-135 requires the Registrar to carefully preserve the registration books and the pollbooks as a record of his office, it is our opinion that the Registrar would be the appropriate official to transfer the names of registered voters to a newly established automated voter registration system. It is our further opinion that the additional time and work that will be required to perform such task is a single, unique occurrence which was not contemplated at the time the provisions of 23-15-225 (registrars salaries) were originally enacted. Therefore, in our opinion, the boards of supervisors would be authorized to approve a one time additional payment for the Registrar or some qualified individual designated by the Registrar for performing this task.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

BY: Phil Carter Special Assistant Attorney General PC:mfd