Alabama Advisory Opinions February 11, 1998: AGO 1998-090 (February 11, 1998)

AGO 1998-090.

Dear Mr. Bennich:

This opinion of the Attorney General is issued in response to your request.

Will continuation of health insurance benefits, pursuant to the Morgan County Personnel Policy for a county employee taking an unpaid leave of absence, be consistent with the requirements of section 17-1-7(d) of the Code of Alabama which requires the employee to take "an unpaid leave of absence from his or her employment" to run for a county office? In other words, does the term "unpaid" mean that the employee can receive no compensation or benefit of any type from the county while the employee is on unpaid leave of absence for purposes of running for a Morgan County office?

Your request provides that a current employee of Morgan County has announced that he will be a candidate for the position of county commission in Morgan County in the 1998 primary election. This employee, pursuant to section 17-1-7(d), has requested and been granted an unpaid leave of absence from his employment with the county.

Section 17-1-7(d) states:

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 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.

ALA. CODE § 17-1-7(d) (1995).

Section 28.2 of the Morgan County Personnel Policy provides:

All job related benefits except health insurance benefits cease when an employee is granted leave of absence without pay in excess of seven days. As to health benefits, the County will continue coverage so long as the employee pays the premium allocable to his or her participation prior to the time the County is due to pay such premium to the insurer, subject to the terms and provisions of the insurance contract.

The Alabama Supreme Court and this Office have previously held that the payment of health insurance premiums by a county is compensation. Opinion By the Justices , 249 Ala. 88, 30 So. 2d 14 (1947) and Opinion to Honorable Fonde Melton, Revenue Commissioner, Monroe County, dated October 23, 1997, A. G. No. 98-00016. If, however, the employee and not the county pays the entire cost of the premiums, the employee would not be receiving compensation from the county. Id. ; see also , Opinion to Honorable Roy W. Owens, Mayor, City of Scottsboro, dated January 28, 1981, A. G. No. 81-00197. If an employee is not receiving compensation from the county, he is "unpaid."

Accordingly, the provision of the Morgan County Personnel Policy allowing a county employee during an unpaid leave of absence to continue to receive health insurance benefits as long as the employee pays for the cost of the premiums is consistent with the requirements of section 17-1-7(d) that the employee take an "unpaid" leave of absence.

I hope this opinion answers your question. If this Office can be of further assistance, please contact Brenda F. Smith of my staff.

Sincerely,

BILL PRYOR

Attorney General

By: JAMES R. SOLOMON, JR.

Chief, Opinions Division

BP/BFS

B/2.98/f