Alabama Advisory Opinions May 18, 2000: AGO 2000-149 (May 18, 2000)

AGO 2000-149.

Dear Mr. Jones:

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

QUESTIONS

1. In light of section 17-1-7(a) and (d) of the Code of Alabama, as amended in 1995, is the Pike County Personnel Handbook, Section 18.9, which restricts a county employee from participating in "any public office" overly broad and should be amended?

2. Does section 17-1-7(a) allow for county employees to participate in political activities in city, county, and state races without any limitations whatsoever?

3. Does section 17-1-7(a), when it uses the term "participate," also include running for election or seeking an office in a city, county, or state race, or is it intended only to address other involvement in political activities such as endorsing candidates and contributing to campaigns, etc.?

4. Does section 17-1-7(d) require a county employee to resign or take a leave of absence only if that employee qualifies to seek a political office as a member of the Pike County Commission as the term "employing authority" is defined, or does the term "governmental entity" mean any office within Pike County including, but not limited to, a seat on the Pike County Board of Education or other similar office?

Your request states that an employee of Pike County has qualified to run for a seat on the Pike County Board of Education. The Pike County Board of Education receives funds from the Pike County Commission, but the Commission has no control or authority over the Board of Education. Section 18.9 of the Pike County Personnel Handbook restricts Pike County employees from seeking any political office unless the employee resigns or receives a leave of absence. Section 17-1-7(a) and (d) of the Code of Alabama provides as follows:

(a) (1) No person in the employment of any city, whether classified or unclassified, shall be denied the right to participate in city, county, or state political activities to the same extent as any other citizen of the State of Alabama, including endorsing candidates and contributing to campaigns of his or her choosing.

(2) No person in the employment of any county, whether classified or unclassified, shall be denied the right to participate in city, county, or state political activities to the same extent as any other citizen of the State of Alabama, including endorsing candidates and contributing to campaigns of his or her choosing.

(3) No person in the employment of the State of Alabama, whether classified or unclassified, shall be denied the right to participate in city, county, or state political activities to the same extent as any other citizen of the State of Alabama, including endorsing candidates and contributing to campaigns of his or her choosing. Notwithstanding the foregoing, any person within the classified service shall comply with Section 36-26-38.

(4) All persons in the employment of any city, county, or state shall have the right to join local political clubs and organizations, and state or national political parties.

(5) All persons in the employment of any city, county, or state shall have the right to publicly support issues of public welfare, circulate petitions calling for or in support of referendums, and contribute freely to those of his or her choosing.

* * *

(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.

Section 17-1-7(a)(2) states unequivocally that no person in the employment of any county shall be denied the right to participate in political activities at the city, county, and state levels. Under the established rules of statutory construction, words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning. State Dep't. of Transp. v. McLelland , 639 So. 2d 1370, 1371 (Ala. 1994); Tuscaloosa County Comm'n v. Deputy Sheriff's Ass'n of Tuscaloosa County, 589 So. 2d 687, 689 (Ala. 1991). To "participate in" under section 17-1-7(a)(1) of the Code of Alabama, therefore, must be given its natural, common, and ordinary meaning. "To participate in" an election includes the right to run for political office, in addition to the right to endorse candidates and contribute to campaigns. A limitation on the right of county employees to run for office is set forth in subsection (d) of section 17-1-7. Subsection (d) provides that an employee of the county commission who qualifies to seek political office as a member of the county commission that employs him must be on leave, either paid or unpaid, from the date the employee qualifies to run for that office until the date the election results are certified.

A county commission does not have the authority to adopt personnel rules and regulations that are in conflict with a general law of the State. Baldwin County v Jenkins , 494 So. 2d 584 (Ala. 1986). Section 17-1-7 is a general law that allows county employees employed by the county commission to seek any political office, except the office of county commission with which the employee is employed, without resigning or taking a leave of absence. To the extent that the Pike County Personnel Handbook is in conflict with general state law, it is overly broad and should be amended.

Section 18.9 of the Pike County Personnel Handbook is in conflict with section 17-1-7(a) and (d) of the Code of Alabama. Pursuant to section 17-1-7(a) of the Code of Alabama, employees of the Pike County Commission may participate in political activities, including running for public office, without resigning or taking a leave of absence. Employees of the county, however, who run for a seat on the county commission that employs them must take a leave of absence from the date of qualifying until the election results are certified as set forth in section 17-1-7(d) of the Code of Alabama.

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

22431v1/15301