Alabama Advisory Opinions March 28, 2002: AGO 2002-190 (March 28, 2002)

AGO 2002-190.

Dear Commissioner Albrecht:

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

Is the person employed as the Deputy Revenue Commissioner in the DeKalb County Revenue Commissioner's Office required by section 17-1-7 of the Code of Alabama to take a leave of absence if the employee is a candidate for the office of Revenue Commissioner?

Section 17-1-7(d) of the Code of Alabama provides a specific exception to the general rule that allows county employees to run for office to the same extent as any other citizen. This section states:

(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.

ALA. CODE § 17-1-7(d) (1995) (emphasis added).

Your request states that you appointed the person employed as the Deputy Revenue Commissioner and that she serves at your pleasure. Your request refers to two local acts that relate to the employment of clerical assistants.

Act No. 439 (1957) fixes the salary of certain county officers and provides for the employment of clerical assistants. This act states, in pertinent part, as follows:

Section 3. The board of revenue, court of county commissioners, or other like governing body of DeKalb County shall provide the judge of probate, sheriff, tax assessor, tax collector, register, and circuit clerk of the County with clerical assistance and with the quarters, books, stationery, office equipment, postage, and other such conveniences and supplies necessary for the proper and efficient conduct of their respective offices. Each of said officers shall have the authority to appoint such clerical assistants as may be authorized for his office, and such clerical assistants shall serve at the pleasure of the appointing authority.

1957 Ala. Acts No. 439, 603-4.

The office of county revenue commissioner was established by Act No. 91-328, which provides, in pertinent part, as follows:

Section 3. Subject to the approval of the county commission, the county revenue commissioner shall appoint and fix the duties and compensation of a sufficient number of deputies, clerks, and assistants to perform properly the duties of his office. The acts of deputies shall have the same force and legal effect as if performed by the county revenue commissioner.

* * *

Section 5. The county shall provide the necessary offices for the county revenue commissioner, and shall provide all stationery, equipment, and office supplies, not otherwise furnished by law, needed for the efficient performance of the duties of the office.

1991 Ala. Acts No. 91-328, 646-7.

This Office has previously considered whether a county license commissioner running for the office of county revenue commissioner in Russell County must take a leave of absence pursuant to section 17-1-7 of the Code of Alabama. Opinion to Honorable Lesley Vance, Member, House of Representatives, dated February 28, 2002, A.G. No. 2002-156. The county license commissioner was clearly a county employee. Thus, the question was whether the Russell County Revenue Commissioner's office was a county office. Finding that it was a county office, the opinion stated as follows:

The office of Revenue Commissioner for Russell County is an elected county office, which is a part of the county government. The employees of the Revenue Commissioner are appointed with the approval of the Russell County Commission. The county commission provides the necessary office space and equipment for the Revenue Commissioner. Accordingly, as a county employee, running for the office of county Revenue Commissioner, the county Motor Vehicle License Commissioner is seeking office "with the governmental entity with which he or she is employed." ALA. CODE § 17-1-7(d) (1995). Id. at 4. The language in the local act creating the office of the Russell County Revenue Commissioner is almost identical to the language in the local act creating the position of DeKalb County Revenue Commissioner.

This Office has also held that the chief clerk employed in the probate judge's office, appointed by the probate judge, and paid by the county commission is a county employee and is required to take a leave of absence while seeking the office of Probate Judge for that county. Opinion to Honorable Tom Burleson, Cullman County Probate Judge, dated August 24, 2000, A.G. No. 2000-221.

Although the Deputy Revenue Commissioner is appointed by the Revenue Commissioner and serves at the pleasure of the Revenue Commissioner, the deputy is paid by the county commission and the Revenue Commissioner's office is considered a county office. Thus, the Deputy Revenue Commissioner in DeKalb County is considered a county employee for purposes of section 17-1-7(d) of the Code of Alabama and must take a leave of absence while seeking the office of Revenue Commissioner for DeKalb County. The leave of absence must begin on the date the employee qualifies for the office and ends on the date the election results are certified, the employee is no longer a candidate, or there are no other candidates on the ballot. ALA. CODE § 17-1-7(d) (1995).

Your request asks whether the Deputy Revenue Commissioner should be treated like deputy sheriffs who are not considered county employees. The difference between a revenue commissioner and a sheriff is that a sheriff is an executive officer of the state, and the deputies are considered extensions of the sheriff and, thus, not county employees. Opinion to Honorable Jack Page, Member, House of Representatives, dated April 29, 1996, A.G. No. 96-00200. The revenue commissioner is a county officer.

The Deputy Revenue Commissioner in the DeKalb County Revenue Commissioner's Office is a county employee and is required by section 17-1-7(d) of the Code of Alabama to take a leave of absence while seeking the office of DeKalb County Revenue Commissioner.

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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