Alabama Advisory Opinions September 24, 2002: AGO 2002-343 (September 24, 2002)

AGO 2002-343.

Dear Sheriff Johnson:

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

1. Can an appointed official, deputy, or corrections officer of the Baldwin County Sheriff's Office qualify, run, and serve on the Baldwin County Commission?

2. If elected to the office of county commissioner, can an appointed official, deputy, or corrections officer receive both the salary of a county commissioner and their regular pay at the same time? FACTS AND ANALYSIS

Your request states that several employees in the Baldwin County Sheriff's Office have expressed an interest in running for and serving on the Baldwin County Commission. This Office has previously held, based upon case law, that deputies and jailers (corrections officers) in the Baldwin County Sheriff's Office are not county em-ployees and are not subject to the Baldwin County Personnel Merit System. Opinion to Honorable James B. Johnson, Sheriff, Baldwin County Sheriff's Office, dated August 14, 2002, A.G. No. 2002-316.

Section 17-1-7 of the Code of Alabama sets forth the rights of city, county, and state employees to participate in political activities. ALA. CODE § 17-1-7 (1995). Subsection (a) provides that city, county, and state employees shall have the right to engage in political activities to the same extent as any other citizen of the State of Ala-bama. Id . Subsection (d) is an exception to the general rule and requires county em-ployees, while running for a county office, to take a leave of absence from their em-ployment, or use accrued vacation time or other leave time from the date they qualify for the office until the date the election results are certified, or the date they are no longer a candidate, or there are no other candidates on the ballot. Id . Because this Office has held that deputies, jailers, or corrections officers employed by the Baldwin County Sheriff are not county employees, section 17-1-7(d) of the Code is not applic-able to these employees if they seek the office of county commissioner. Accordingly, deputies, jailers, or corrections officers employed by the Baldwin County Sheriff's Office may qualify and run for the office of county commissioner for the Baldwin County Commission.

Section 280 of the Constitution of Alabama prohibits a person from simultaneous-ly holding two offices of profit. ALA. CONST. art XVII, § 280. This Office has held that a deputy sheriff does not hold an office of profit. Opinion to Honorable Frank "Butch" Ellis Jr., State Senator, dated September 25, 1984, A.G. No. 84-00468. A county commissioner, however, does hold an office of profit. Opinion to Honorable Doug Valeska, District Attorney, dated May 17, 1990, A.G. No. 90-00280. A deputy, jailer, or correctional officer, therefore, may also hold office as a county commissioner without violating section 280 of the Constitution. If a correctional officer is elected to the county commission, he could perform the duties of the elected office only while off duty or on leave from his duties as a correctional officer. This Office is not aware of any other provision of law that would prohibit a correctional officer from receiving compensation for that position of employment and for the position of county commissioner.

Although deputy sheriffs are state officers for certain purposes, such as immuni-ty, they are considered a part of the county work force for other purposes, such as com-pensatory leave and minimum compensation. See ALA. CODE §§ 36-21-4.1 and 36-21-10 (Supp. 1997 and 1991) and Opinion to Honorable Jack Page, Member, House of Rep-resentatives, dated November 19, 1997, A.G. No. 98-00038. Because deputy sheriffs are compensated by the county and the county commission sets the budget for the oper-ation of the sheriff's office, there may be issues in which a county commissioner, who is also an employee of the sheriff's office, will have a conflict of interest and may be required to abstain from voting. See Opinion to Honorable Jack Page, Member, House of Representatives, dated November 19, 1997, A.G. No. 98-00038 (duties of the county commission). Any decisions concerning conflicts of interest must be made by the county commissioner, with the advice of a private attorney, on a case-by-case basis. Any potential conflict of interest must be disclosed pursuant to section 13A-10-62 of the Code of Alabama. ALA. CODE § 13A-10-62 (1994). Any questions concerning these issues may also be presented to the State Ethics Commission for consideration under the Ethics Law. The fact that there may be possible conflicts of interest does not prohibit a correctional officer employed by the sheriff from serving as a county commissioner. CONCLUSION

A deputy, jailer, or correctional officer employed by the Baldwin County Sheriff may qualify, run for office, and hold office as a county commissioner for Baldwin County and receive compensation for both positions. If a correctional officer is elected to the county commission, he could perform the duties of the elected office only while off duty or on leave from his duties as a correctional officer.

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

76148v1/44701