Mississippi Advisory Opinions November 25, 1992: AGO 000006434 (November 25, 1992)

AGO 000006434.

Dear Mr. Evans:

Attorney General Mike Moore has received your letter of request and has assigned it to me for research and reply. Your letter states: "Please find enclosed a letter I received from a candidate in our upcoming election commissioner runoff contest. I am forwarding you this copy in order for you to make an official opinion as to the Board of Supervisors possible involvement into conducting this election." Mississippi Code Annotated upon 23-15-215 (Revised 1990) provides: "If there shall not be commissioners of election in any county, or if they fail to act, the duties prescribed for them shall be performed by the board of supervisors. In such case, the president of the board is charged with the duty of having the official ballot printed and distributed; and the managers of election shall make returns to the board, which shall canvass the returns, give certificates of election, and make report to the Secretary of State, in like manner as the commissioners of election are required to do." Section 23-15-217 (2) provides: "In any case involving the election of a county election commissioner wherein there is a contest of any nature including, but not limited to the right of any person to vote or the counting of any challenge ballot, all the duties and powers of the commission in connection with said contest shall be performed by the board of supervisors, as is contemplated by Section 23- 15-215 in cases where there are no commissioners of election in the county." The letter referenced in your request alleges that the pollworkers for the November 3, 1992 Election were never officially appointed by the Leflore County Election Commissioners (the Commission) as required by Mississippi Code Annotated upon 23- 15-231 (Revised 1990). By previous opinion addressed to Honorable Herscel Mitchell, dated February 13, 1990, (copy enclosed) we opined that an individual commissioner is without authority to officially appoint the pollworkers for his particular district. We stated that such appointments must be made by the commission as a whole. This remains the opinion of this office. Please see also our opinion addressed to Mr. Hubert S. Moore, dated October 29, 1980 (copy enclosed) which we believe is consistent with our response to your request. The letter further alleges that the Commission was called upon to rule on certain "contests" involving the District 5 Election Commissioner Election of November 3, 1992. The alleged "contests" involved, inter alia, rulings pertaining to a challenged absentee ballot and the legality of affidavit ballots. We will not offer any opinion or make any comment on the alleged irregularities of the November 3, 1992 Elections. Any such opinion and/or comment from this office could neither validate nor invalidate the past actions of the Commission or any individual commissioner. In response to your specific question regarding any future elections involving the election of one or more election commissioners, it is the opinion of this office that if the Leflore County Board of Supervisors (the Board) makes a factual determination that the Commission, as a whole, has not, in a timely manner, made the required appointment of pollworkers, or otherwise performed a specific statutory duty, that duty will fall to the Board in accordance with Section 23-15-215. We note that in making that factual determination, public boards and commissions can speak only through their minutes. Therefore, in order for any appointment of pollworkers to be valid, said appointment must be reflected on the minutes of the commission. In this regard, the Mississippi Supreme Court in Thompson v. Jones County Community Hospital, 352 So. 2d 795, 796 (Miss. 1977) in discussing the general rule that the authority of public boards and commissions can be exercised only by a legal quorum and can speak only through their minutes said: "Additional reasons for the rule are set forth in Lee County v. James, 178 Miss. 554, 174 So. 76 (1937) wherein the Court stated: When official authority is conferred upon a board or commission consisting of three or more members, the authority so conferred must be exercised by a legal quorum, and, as a general rule, the decisions to be executed or the contracts to be awarded by the board must be determined or decided upon only in or at a lawfully convened session, and the proceedings must be entered upon the minutes, of the board or commission. The reasons for the requirements aforesaid are: (1) That when authority is conferred upon a board, the public is entitled to the judgment of the board after an examination of a proposal and a discussion of it among the members to the end that the result reached will represent the wisdom of the majority rather than the opinion or preference of some individual member, and (2) that the decision or order when made shall not be subject to the uncertainties of the recollection of individual witnesses of what transpired, but the action taken will be evidenced by a written memorial entered upon the minutes at the time, and to which all the public may have access to see what was actually done. See upon the general principles stated. State ex rel. Baria v. Alexander, 158 Miss 557, 562, 130 So. 754 and the recent case, State Highway Department v. Duckworth, 178 Miss 35, 172 So. 148, 150. (178 Miss. at 558, 559, 174 So. at 77)." In regard to any questions that arise in connection with the validity of ballots or the certification of an election involving the election of one or more election commissioners, it appears that the intent of Section 23-15-217 (2) is to insure that an election commissioner not be placed in the position of having to participate in making decisions on matters that will have a direct effect on the outcome of an election in which he is a candidate. It is the opinion of this office that, in order to maintain the integrity of the election process, this requires that each commissioner recuse himself from participation in any such decisions that must be made with respect to the election of a commissioner in his supervisor district when he is a candidate for re-election. A prime example of this is the determination of the legality of any affidavit ballots cast in such election. If the remaining commissioners are evenly divided on whether or not a particular affidavit ballot should be counted, the board of supervisors would have to make a definitive ruling pursuant to Section 23-15-217 (2).

Sincerely, MIKE MOORE, ATTORNEY GENERAL BY: Phil Carter Assistant Attorney General PC:mfd Enclosure