Alabama Advisory Opinions April 03, 2000: AGO 2000-113 (April 3, 2000)

Alabama Attorney General Opinions

2000.

AGO 2000-113.

Dear Mr. Rutland:

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

QUESTIONS

1. Does section 17-1-7(d) of the Code of Alabama apply where the chief clerk is acting as the probate judge?

2. If so, may the clerk perform the duties of the office without pay or while using accrued overtime leave or vacation time between the time of his qualifying for election and the election?

3. If not, who can appoint a chief clerk with authority to act as probate judge (without a chief clerk or probate judge the office will close)?

FACTS AND ANALYSIS

The Probate Judge of Bullock County resigned several months ago, and the Governor has not appointed a replacement. It is possible that a replacement will not be appointed prior to the June primary election. The chief clerk is appointed by the probate judge pursuant to section 12-13-40 of the Code of Alabama, but is paid by the county since the Bullock County Probate Judge no longer participates in the fee system. ALA. CODE § 12-13-40 (1995). The current chief clerk is performing the duties of the probate judge as provided by section 12-13-15 of the Code of Alabama whenever a vacancy occurs in the office of the probate judge. ALA. CODE § 12-13-15 (1995); see Opinion to Honorable Johnny H. Williamson, Probate Clerk, Bullock County Probate Court, dated February 28, 2000, A. G. No. 2000-097. The chief clerk has announced his intention to qualify and run for the office of probate judge.

Section 17-1-7(d) of the Code of Alabama provides:

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.

ALA. CODE § 17-1-7(d) (1995).

Although the chief clerk is performing the duties of the probate office in the absence of the probate judge, the chief clerk is paid by the county commission and is considered an employee of the county commission. Accordingly, if the chief clerk qualifies and runs for the office of probate judge, a county office, the clerk must take an unpaid leave of absence or use accrued overtime or vacation time from the date he qualifies for the office until the date the election results are certified, or he is no longer a candidate, or there are no other candidates on the ballot.

It is the opinion of this Office that section 17-1-7(d) does not allow the chief clerk to continue to perform the duties of the clerk without pay or while using overtime or vacation time during the period of time between qualifying and the election. This action would defeat the purpose of section 17-1-7(d) requiring the employee, while a candidate, to be out of the office.

Only the probate judge is given the authority to appoint a chief clerk. ALA. CODE § 12-13-40 (1995). A special probate judge may, however, be appointed to provide temporary services in certain instances. Section 12-1-14 of the Code of Alabama provides in pertinent part:

Should the need for special judges in the . . . probate court arise, the Supreme Court may appoint and commission . . . special probate judges for temporary service.

ALA. CODE § 12-1-14 (1995). Section 12-13-37 also provides for the appointment of special probate judges, providing in pertinent part:

If in any matter or proceeding arising in the probate court or in reference to which the judge thereof is required to exercise jurisdiction or authority or to perform a duty the judge is incompetent for any legal cause or shall be absent, sick or otherwise disqualified from acting, he or his chief clerk must certify the fact of incompetency, absence, sickness or disqualification to the Chief Justice of the Alabama Supreme Court, and the Supreme Court shall, upon such certificate, appoint a person possessing the qualifications of a probate judge to act as special probate judge.

ALA. CODE § 12-13-37 (1995). In the absence of the probate judge and the chief clerk, a special probate judge may be appointed pursuant to sections 12-1-14 and 12-13-37 of the Code of Alabama.

CONCLUSION

Section 17-1-7(d) of the Code of Alabama is applicable to the Chief Clerk of Bullock County if the clerk qualifies and runs for the office of Probate Judge of Bullock County. The chief clerk may not continue to perform the duties of the clerk without pay or while using overtime or vacation time. A special probate judge may be appointed in the absence of the probate judge and the chief clerk.

I hope this opinion answers your questions. 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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