Alabama Advisory Opinions April 03, 2000: AGO 2000-114 (April 3, 2000)

AGO 2000-114.

Dear Judge Adkison:

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

QUESTIONS

1. Does the Geneva County Personnel Board have the authority to restrict eligibility of its members from seeking county elective office "within one year after ceasing to be a member" of the Board?

2. If the answer to question 1 is yes, when does the ineligibility begin?

a. One year prior to the beginning of the office term?

b. One year prior to the general election for the office?

c. One year prior to the last day of qualifying for the office?

The Geneva County Personnel Board is established pursuant to Act No. 85-587. Section 4 of the Act provides, as follows, with respect to the appointment of board members:

No person shall be appointed to the personnel board unless he is of recognized good character and ability, and is an actual resident in and qualified elector of the county. No person shall be eligible to appointment or shall continue to be a member of a board created under this act who holds an elective office under the state, county, or any city therein, or who is a candidate for elective office. Vacancies on the board shall be filled for the unexpired terms in the same manner as original appointments from among its members are made. . . . The board shall adopt reasonable rules regulating the procedure of the board. Notice of all meetings of the board shall be given to each member by the clerk of the board.

The Board is given specific authority in section 4 of the Act to adopt rules regulating the procedure of the board while section 6 of the Act gives the Board general authority to adopt rules and regulations for the operation of the civil service system, including such things as job classification, pay plan, and mandatory retirement of employees. Id. at 906. The Board has adopted personnel rules and procedures that are set forth in a Personnel Handbook. The Personnel Handbook provides, under the heading "Personnel Department," for the Personnel Board and states:

1. The members are residents and qualified electors of the County. No person, who holds an elective office or employment under the state, county, or city therein or who is a candidate for elective office, shall be appointed to the board or shall continue to be a member of the board; nor shall any member, while a member of the board, or within one year after ceasing to be a member, be eligible for appointment to any salaried office or employment in the service of the County or any county elective office .

State statutes creating the office establish the qualifications for that office. Moreover, a personnel board does not have the authority to enact rules and regulations that are inconsistent with the act creating the personnel board or the statute setting the qualifications. Hallman v. City of Northport, 333 So. 2d 152 (Ala. Civ. App. 1976). The Act creating the Geneva County Personnel Board places qualifications and restrictions on the person that may be appointed to serve on the Board but is silent with respect to restrictions on the Board member after he or she ceases to be a Board member. It is the opinion of this Office that the personnel rule restricting a Board member's ability to run for county elective office after he or she ceases to be a member of the Board is inconsistent with the authority granted to the Personnel Board by Act No. 85-587. The authority to prohibit a Board member from seeking county elective office after his term on the Board is not included within the Board's authority to adopt rules and regulations governing the procedure of the Board and the operation of the civil service system.

Given our answer to question 1, we need not address question 2.

It is the opinion of this Office that the Geneva County Personnel Board does not have the authority to restrict a Board member's ability to run for county elective office after he or she ceases to be a member of the Board. Qualifications for elective office are set by statute.

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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