Alabama Advisory Opinions February 23, 2000: AGO 2000-092 (February 23, 2000)

AGO 2000-092.

Dear Sheriff Tirey and Mr. Johnson:

This opinion of the Attorney General is issued in response to your request on behalf of the Sheriff of Walker County and the Walker County Commission.

Is a Walker County Sheriff's deputy required to take a leave of absence (or use overtime leave or vacation time) in order to run for the office of Walker County Probate Judge?

This Office has previously held that deputy sheriffs, as employees of the sheriff, are state employees, not county employees. Opinion to Honorable Jack Page, Member, House of Representatives, dated April 29, 1996, A. G. No. 96-00200; s ee also, Whitten v. Lowe, 677 So. 2d 778 (Ala. Civ. App. 1995). As state employees, deputies are not subject to the provisions of section 17-1-7(d) of the Code of Alabama that requires county employees to take a leave of absence in order to run for a county office. ALA. CODE § 17-1-7(d) (1995). The Office of Probate Judge is a county office. See Scott v. Estes, 60 F. Supp. 2d 1260 (M.D. Ala. 1999).

In a previous opinion issued to Honorable John Mark Tirey, Sheriff of Walker County, dated September 13, 1996, A. G. No. 96-00313, this Office opined that the deputy sheriffs of Walker County are not subject to the county civil service system created by Act No. 200 of the 1969 Alabama Acts. The civil service act prohibits employees from engaging in certain political activity. 1969 Ala. Acts No. 200, 263. On January 6, 1999, after the 1996 opinion was issued, amendment number 655 to the Alabama Constitution was proclaimed ratified. Amendment No. 655 provides:

Effective the first day of the sixth month after the ratification of this amendment, all employees of the Office of the Sheriff of Walker County are subject to the authority of the Walker County Civil Service Board, or its successor.

Based upon amendment no. 655, deputy sheriffs employed by the Sheriff's Office of Walker County are subject to the Walker County Civil Service Board. Accordingly, all deputies of the Walker County Sheriff's Office must comply with the rules and regulations of the Walker County Civil Service Board, including any rules with respect to political activities and leave policy.

Pursuant to amendment no. 655 of the Alabama Constitution, deputy sheriffs employed by the Walker County Sheriff's Office are subject to the rules and regulations of the Walker County Civil Service Board.

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: CAROL JEAN SMITH

Chief, Opinions Division

BP/BFS

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