ELECTION CONTRACTS, JOINT ELECTION AGREEMENTS & LEASES FOR EQUIPMENT

ELECTION CONTRACTS, JOINT ELECTION AGREEMENTS & LEASES FOR EQUIPMENT 31st ANNUAL ELECTION LAW SEMINAR COUNTY ELECTION OFFICIALS Texas Secretary of State Elections Division

Must contracts for election services, joint election agreements, and equipment leases be in writing? • Yes. (§§ 31.091(2), 123.032, 271.002(d)) • Why? • How do you know what the agreement is if it is not in writing? • Legal and audit requirements. Texas Secretary of State Elections Division

Who is authorized to sign? • Contract for election services – county election officer and governing body of political subdivision. (§ 31.092) • Joint election agreement – governing bodies of political subdivisions. (§ 271.002(d)) • Lease agreement – governing bodies of political subdivisions. (§ 123.032) Texas Secretary of State Elections Division

Who is the County Election Officer? County clerk; County elections administrator; or County tax assessor collector. (§ 31.092(1)) Texas Secretary of State Elections Division

Note: There are two or three “joint elections administrators” in Texas. (§ 31.152) They have the duties and functions of: • Voter registrar in county or counties creating the position. • Officer of a participating entity formerly required to conduct elections, under Election Code and other codes. • Administrator under §§ 31.165 & 31.166. Texas Secretary of State Elections Division

Who decides who the county election officer is? • By default, the county clerk. (§§ 51.003, 52.002, 83.002) • Commissioners court may transfer county clerk’s election duties to county tax assessor collector. (§ 31.071) • Commissioners court may create the position of county elections administrator and county election commission may appoint an EA. (§§ 31.031, 31.032) Texas Secretary of State Elections Division

With what entities is county election officer authorized to contract to perform election services?(§ 31.092) • Political subdivisions located wholly or partly in the county served by the election officer. • Political party holding primary election in county. • County is not required to be holding an election for the county election officer to contract with other political subdivisions. Texas Secretary of State Elections Division

Contracting authority for such entities is governing body of political subdivision and county executive committee of political party. • Contract need not be submitted to commissioners court for approval. • Copy of contract must be filed with county treasurer and county auditor, or county judge if county does not have treasurer or auditor. (§31.099) Texas Secretary of State Elections Division

Is the county election officer required to contract? • Only county elections administrator. (§ 31.093) • Exception: Not for May uniform election date in even-numbered years. (§ 41.001(d)) • The county clerk and the county tax assessor collector, if he/she serves as the county election officer are not required to contract. Texas Secretary of State Elections Division

If requested to do so by political subdivision or political party, county elections administrator must enter into contract to furnish election services requested in accordance with agreed upon cost schedule. Texas Secretary of State Elections Division

Services Performable under Contract (§§ 31.094, 31.095, 31.096, 31.097) • Any or all of duties and functions county election officer performs in connection with countywide election ordered by county authority. • County election officer may assign deputies to perform contracted services. Texas Secretary of State Elections Division

Contract may provide that county election officer’s deputies serve as deputy early voting clerks, even if officer not early voting clerk. Election Services Contract cannot change candidate filing authority; filing authority for ethics forms and reports; or authority to serve as custodian of voted ballots or other election records, except that contract with political subdivision other than city may provide county election officer will be custodian of voted ballots. Texas Secretary of State Elections Division

Monies Paid Under Election Services Contract(§ 31.100) • County election officer may be paid a deposit to conduct election services, and if so, monies must be deposited in a separate fund in county treasury, and county election officer may make expenditures from fund without budgeting or appropriation by commissioners court. Texas Secretary of State Elections Division

Claims against fund are audited and approved in same manner as other claims against county before they are paid. If estimated expenses exceed actuals, difference must be refunded to the political subdivision. Texas Secretary of State Elections Division

Restrictions on amounts that may be expended against the fund: • Actual expenses directly attributable to an election services contract. • County election officer may not charge for performing duties not required by law to perform. • No personal compensation for county election officer, but may received general supervision fee not to exceed 10% (minimum amount $75). Texas Secretary of State Elections Division

Salaries of personnel regularly employed by county election officer not payable from fund, except for contractual duties performed outside normal business hours. • Salaries of temporary personnel may not exceed normal rate of pay in the locality for same or similar services. • Surplus in the fund may be used only to defray expenses of county election officer’s office in connection with election-related duties. Texas Secretary of State Elections Division

How is joint election agreement different from election services contract?(Chapter 271) • Governing bodies of two or more political subdivisions located wholly or partially in same county and holding election on same day agree to hold elections jointly. County could be one of the political subdivisions. (§ 271.002) • If county is party to a joint election agreement, commissioners court must approve agreement. Texas Secretary of State Elections Division

What can be carried out jointly? 271.007 • Joint polling places when adequately and conveniently located to serve affected voters. (§ 271.003) • Shared election officers (if eligible to serve for one joint partner, eligible for all). (§ 271.005) • Joint ballots and ballot boxes. (§§ 271.007, 271.008) Texas Secretary of State Elections Division

Joint early voting. (§ 271.006) Exception: Regular early voting clerk for each participating political subdivision must receive applications for mail ballots. • May use combined election forms and records. (§ 271.009) • May use one custodian of election records for joint election if election records for common polling place are combined or ballots for more than one entity are deposited in one ballot box. (§ 271.010) • May have joint canvass. (§ 271.011) Texas Secretary of State Elections Division

What happens when a party to a joint election agreement cancels its election? • There needs to be a Plan B. Texas Secretary of State Elections Division

What is a lease agreement? • Political subdivision may lease equipment necessary to operate a voting system from county in which it is wholly or partially located. (§ 123.032(b)) • If equipment is not available from county, political subdivision may lease from any other source. (§ 123.032(b)) Texas Secretary of State Elections Division

Maximum amount a county may charge under lease agreement is 10% of purchase price of equipment for each day equipment is leased. Texas Secretary of State Elections Division

Hybridization of Contracts and Agreements • Contracts for election services, joint election agreements, and lease agreements do not fall into neat, separable categories. Texas Secretary of State Elections Division

How do you draft the appropriate contract or agreement or lease? Texas Secretary of State Elections Division

ELECTION CONTRACTS, JOINT ELECTION AGREEMENTS & LEASES FOR EQUIPMENT