Alabama Advisory Opinions October 16, 1996: AGO 1997-014 (October 16, 1996)

AGO 1997-014.

Dear Judge Menefee:

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

An employee of the Macon County Probate Office is running for the Racing Commission. I would like to know if Code of Alabama 1975, _ 17-1-7 is applicable? Is the Racing Commission considered a county office?

The applicable provision of Code , _ 17-1-7 states:

"(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."

The Macon County Racing Commission was created and established by Act No. 83-575, Acts of Alabama 1983, p. 852. It is vested with the powers and duties specified in Act No. 83-575, and all other powers necessary and proper to execute the purposes of the Act as provided in Section 1 of the Act. The powers and duties of the Racing Commission are carried out by commissioners.

It is the opinion of the Attorney General that the Macon County Racing Commission is not part of the county government as considered in _ 17-1-7(d). It is a separate entity from the county government created by statute with specified powers and duties enumerated in the statute carried out by the body of commissioners designated in the statute. Therefore, a county employee, who is a candidate for the Racing Commission, is not required to take an unpaid leave of absence or use accrued leave.

A position on the Macon County Racing Commission is not a county office for purposes of Code , _ 17-1-7(d).

The petition of one of the candidates is being challenged. The reason is attached for your review. Who has the authority to disqualify a candidate and have their name removed from the ballot?

The ballot-certifying official and ultimately a court of competent jurisdiction have the authority to determine which names are to be included on the ballot. Bostwick v. Harris , 421 So.2d 492 (Ala. 1982); Kinney v. House , 243 Ala. 393, 10 So.2d 167 (Ala. 1942); Opinion of the Attorney General to Mr. Melvin C. Cooper, Executive Director, State Ethics Commission, dated March 2, 1989, A.G. No. 89-00206.

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

M10.96/OP