Alabama Advisory Opinions April 29, 1996: AGO 1996-200 (April 29, 1996)

AGO 1996-200.

Dear Representative Page:

This opinion is issued in response to your request for an opinion from the Attorney General.

1. In light of recent court opinions, may sheriff's deputies seek election to a county-level office without being required to take leave without pay, annual leave, or compensatory leave as required in subsection (d) of Act No. 95-378?

2. Would other employees in the sheriff's office -- such as clerks, jailers, or dispatchers -- be required to follow the provisions of subsection (d) of Act No. 95-378 should they qualify to seek election to county-level public office?

Act No. 95-378 relates to participation by state, county, and municipal employees, including law enforcement officers, peace officers, and fire fighters, in political activities. It amends Code of Alabama 1975, _ 17-1-7 and is codified there.

Section 17-1-7(d) reads:

"(d) Notwithstanding subsection (c), any employee of a county or a city, whether in the classified or unclassified service, who qualifies to seek a political office with the governmental entity with which he or she is employed, shall be required to take an unpaid leave of absence from his or her employment, or use accrued overtime leave, or use accrued vacation time with the county or city from the date he or she qualifies to run for office until the date on which the election results are certified or the employee is no longer a candidate or there are no other candidates on the ballot. For purposes of this subsection, the term 'employing authority' means the county commission for county employees or the city council for city employees. Any employee who violates this subsection shall forfeit his or her employment position. In no event shall this subsection apply to elected officials."

Section 17-1-7(e) states:

"(e) When off duty, out of uniform, and acting as a private citizen, no law enforcement officer, firefighter, or peace officer shall be prohibited from engaging in city, county, or state political activity or denied the right to refrain from engaging in political activity so long as there is compliance with this section."

A sheriff is an executive officer of the state. Section 112 of the Constitution of Alabama 1901; Parker v. Amerson , 519 So.2d 442 (Ala. 1987). Federal and state courts have determined that deputy sheriffs are extensions of the sheriff and, therefore, state employees for some purposes. Cofield v. Randolph County Commission , 844 F.Supp. 1499 (M.D. Ala. 1994); Whitten v. Lowe , (Ala.Civ. App. Dec. 15, 1995). Accordingly, we are of the opinion that for purposes of _ 17-1-7(d), deputy sheriffs are state employees, not county employees, and are not covered by the provisions of _ 17-1-7(d).

We note that _ 17-1-7(e) permits law enforcement officers, peace officers, and firefighters, when off duty, out of uniform and acting as a private citizen to engage in state, county, and city political activity " so long as there is compliance with this section ." (Emphasis added.)

This permits law enforcement officers, peace officers, and firefighters to engage in political activities as long as they comply with the requirements of _ 17-1-7.

Pursuant to _ 17-1-7(d), previously quoted, county employees who have the county commission as the employing authority, are required to take an unpaid leave of absence or use accrued overtime or vacation leave when seeking a political office with the county.

With regard to jailers, Code of Alabama 1975, _ 14-6-1 specifically provides that jailers are appointed by the sheriff. The sheriff may also dismiss the jailer. Opinion of the Attorney General to Honorable Thomas W. Hall, Sheriff, Conecuh County, dated February 13, 1996, A.G. No. 96-00136. Therefore, the county commission is not considered as the employing authority of the jailer, and jailers are not subject to _ 17-1-7(d).

As to clerical employees of the sheriff and dispatchers, they are generally considered county employees with the county commission as the employing authority. Opinion of the Attorney General to Honorable E. O. "Cotton" Townsend, Sheriff, Winston County, dated June 17, 1985, A.G. No. 85-00388. Furthermore, dispatchers, in most instances, and clerical employees of the sheriff generally are not considered law enforcement officers or peace officers. Therefore, they are subject to the requirements of _ 17-1-7(d).

Deputy sheriffs and jailers are not subject to the provisions of _ 17-1-7(d), and do not have to take an unpaid leave of absence or accrued vacation time or overtime when seeking election to a county office. Dispatchers and clerical employees supporting the sheriff are county employees and are subject to the requirements of Code , _ 17-1-7(d).

3. May a county employee who wins his or her party's nomination for a county- level elected office during the June primary election (to be held on June 4, 1996) return to work until another political party certifies its nominee to oppose him or her "on or before 5:00 p.m. six days after the second primary election" as required in Act No. 95-786?

4. If only one candidate qualifies to seek a party's nomination during the June primary election, is that candidate required to take annual leave, compensatory leave, or leave without pay since there will be "no other candidates on the ballot" of his party during the June primary election?

5. If the answer to Question No. 4 is in the negative, may a county employee who is the first person to qualify to seek his party's nomination for a county- level office continue to work until another candidate qualifies to also seek that party's nomination for the same office?

Question No. 3 is answered in the negative. Code , _ 17-1-7(d), previously quoted, requires a county employee, who seeks a county political office, to take an unpaid leave of absence or to use accrued vacation time or overtime "from the date he or she qualified to run for office until the date on which the election results are certified or the employee is no longer a candidate or there are no other candidates on the ballot." This provision does not say that the employee who wins a primary election must be on leave until his or her party's primary results are certified, but "until the date on which the election results are certified" would mean in this case all election results of both parties having primary elections. It does not allow a county employee who is a candidate for county office, and who wins his or her party primary, to return to work, with the exception listed therein, until the results of the election for that office are certified, including the primary and general election.

With regard to Question No. 4, _ 17-1-7(d) states an exemption to the requirements of that section when "there are no other candidates on the ballot." When a county employee, who seeks the party's nomination for a county office in a primary has no opposition in his party, but there is a candidate for another party's nominee to that office, there are other candidates on the ballot, and the county employee must abide by the requirements of _ 17-1-7(d). The exemption would come into effect when a county employee wins his party's nomination for a county office, and there is no opposition in the general election, or when the county employee is the only candidate seeking his party's nomination in the primary, and there is no opposition in any other party's primary.

To answer your fifth question, if the county employee qualifies as a candidate before the final date for qualifying for the primary election, he or she should be on leave from the date of qualifying until the date the election results are certified or to the date it is determined that he or she is the only candidate on the ballot. CONCLUSION

A county employee, who wins his or her party nomination for a county-level office during the June primary election, cannot return to work until the results of the election for that office are certified, including the primary election, the run-off election, and the general election, unless he or she is the only candidate on the ballot for that office. When a county employee, who seeks the party's nomination for a county office in a primary has no opposition in his party, but there is a candidate for another party's nominee to that office, the county employee must abide by the requirements of _ 17-1-7(d).

6. Subsection (d) of Act No. 95-378 provides that any "employee who violates this subsection shall forfeit his or her employment position." If an employee refuses to take a leave of absence as required by this Act, what steps should the county governing body take to enforce the provisions of subsection (d)?

Any employee, who violates _ 17-1-7(d) by refusing to take a leave of absence or using accrued vacation time or overtime, forfeits or surrenders his or her position of employment with the county, and is no longer employed. The county should take the same steps that it would take when any employee violates a rule or regulation of his or her employment. Once a person qualifies as a candidate but refuses to take leave, the county commission has no authority to continue to pay such employee. The position is forfeited, and the employee is terminated by operation of law. The terminated employee would have the same rights as any other employee with regard to accrued leave and sick pay, and it is the responsibility of the county commission to enforce this provision by charging such person with leave, and when the leave is exhausted, to remove the person from the payroll.

When a county employee who refuses to take an unpaid leave of absence or use vacation time or overtime when running for county office, the county should take the same steps that it would take when any employee violates a rule or regulation of his or her employment. The county commission has no authority to continue to pay an employee who qualifies as a candidate for county office but refuses to take leave.

I hope this sufficiently answers your questions. If our office can be of further assistance, please contact James R. Solomon, Jr., of my staff.

Sincerely,

JEFF SESSIONS

Attorney General

By: JAMES R. SOLOMON, JR.

Chief, Opinions Division

JS/LKO/jho

P4.96B/OP