Alabama Advisory Opinions January 10, 2006: AGO 2006-039 (January 10, 2006)

AGO 2006-039.

Dear Judge Horsley:

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

May the chief clerk run for probate judge of Winston County without resigning the position of chief clerk?

The chief clerk in the Winston County Probate Judge's Office is appointed by the probate judge, and the chief clerk's salary is paid by the Winston County Commission. See Ala. Code § 12-13-40 (1995); 1980 Ala. Acts No. 80-646, 1219. The chief clerk is running for the office of probate judge of Winston County. The office of probate judge is an elected county office.

Ala. Code § 17-2-1 (1995).

Section 17-1-7(d) 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 as follows:

(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). Under the established rules of statutory construction, words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used, a court is bound to interpret that language to mean exactly what it says. Ex parte Cove Properties, Inc. , 796 So. 2d 331, 334 (Ala. 2000); Ex parte T.B. , 698 So. 2d 127, 130 (Ala. 1997); State Dep't of Transp. v. McLelland , 639 So. 2d 1370, 1371 (Ala. 1994).

The term "governmental entity" means either city government or county government. The probate judge's office is part of the county government. Based on this reasoning, this Office has previously stated that section 17-1-7(d) of the Code of Alabama requires a county employee who seeks the office of probate judge in the same county where he or she is employed to be on leave, either paid or unpaid, from the date the employee qualifies to run for the office until the date the election results are certified, until the person is no longer a candidate, or until the person is the only remaining candidate on the ballot for that position. Opinion to Bobby G. Day, Probate Judge, Morgan County, dated August 24, 2005, A.G. No. 2005-187; Opinion to Honorable Lesley Vance, Member, House of Representatives, dated October 20, 1999, A.G. No. 2000-010; Opinion to Honorable Jack Page, Member, House of Representatives, dated April 29, 1996, A.G. No. 96-00200. More specifically, this Office has previously stated that section 17-1-7(d) requires the chief clerk of the probate judge's office, who is appointed by the probate judge and paid by the county commission, to take a leave of absence to run for the office of probate judge. Opinion to Tom Burleson, Cullman County Probate Judge, dated August 24, 2000, A.G. No. 2000-221; Opinion to Honorable Louis C. Rutland, Attorney, Bullock County Commission, dated April 3, 2000, A.G. No. 2000-113.

A chief clerk in the probate judge's office is a county employee. Id. As a county employee running for the office of probate judge, the chief clerk is seeking office "with the governmental entity with which he or she is employed." See Ala. Code § 17-1-7(d) (1995). Accordingly, the chief clerk employed in the probate judge's office and paid by the Winston County Commission 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 probate judge of Winston County. The leave of absence must begin on the date the employee qualifies to run for the office.

CONCLUSION

The chief clerk employed in the probate judge's office and paid by the Winston County Commission 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 probate judge of Winston County.

If the chief clerk must resign her position as chief clerk to run for probate judge, may the probate judge rehire her as a regular clerk paid solely by the probate judge, and may the former chief clerk then run for probate judge under these circumstances?

In most counties, the probate judge and the probate judge's employees are paid a salary by the county commission. The Winston County probate judge, however, operates on a fee system. See Opinion to William T. Stephens, Deputy Director and Counsel, Retirement Systems of Alabama, dated September 22, 2000, A.G. No. 2000-249, at 13 n.2. The chief clerk, as noted earlier, is paid by the county commission. All other employees of the probate judge's office, however, are paid by the probate judge.

In determining whether an employee is a county employee, this Office has repeatedly looked to the source of that employee's salary. If an employee is paid a salary by the county commission, there is a strong presumption that the employee is a county employee. See Opinion to Karen W. Albrecht, DeKalb County Revenue Commissioner, dated March 28, 2002, A.G. No. 2002-190 (stating that the Deputy Revenue Commissioner, paid by the county commission, is considered a county employee); Opinion to Louis C. Rutland, Attorney, Bullock County Commission, dated April 3, 2000, A.G. No. 2000-113 (stating that "the chief clerk [of the probate judge] is paid by the county commission and is considered an employee of the county commission").

With respect to other statutes, Alabama courts have addressed the issue of whether employees in a probate judge's office are county employees if that probate judge is operating on a fee system. In 1990, the Alabama Supreme Court, discussing retirement benefits in Barbour County, stated that the "Judge of Probate is still on the fee system and pays his own employees and thus those employees, with the exception of the Chief Clerk in the Clayton Office, are not employees of the Barbour County Commission." Barbour County Comm'n v. Employees Of Barbour County Sheriff's Dep't , 566 So. 2d 493, 497-98 (Ala. 1990). In 1985, the Alabama Court of Civil Appeals held that the probate judge's employees (in the same county at issue in this opinion) are not county employees for purposes of the state unemployment compensation law. Dir. of State Dep't. of Indus. Relations v. Winston County Comm'n , 468 So. 2d 177, 181 (Ala. Civ. App. 1985). The court explained its reasoning as follows:

Though the Commission is the governing body for Winston County, it has no direct control over the probate judge in Winston County. It does have the limited authority to provide the probate judge with office space and equipment, and it may set the hours when the county courthouse is open. The Commission has no authority, however, to supervise the probate judge's employees or the day-to-day operation of the probate office. It does not hire or fire the probate judge's employees.

Id. at 180. Also, the court added that the Commission does not pay the salary of the probate judge's employees. Id. at 179. In addition, in 1995, the Court of Civil Appeals, relying on its opinion in Winston County Comm'n , held that the employees of the probate judge of Autauga County are not county employees because the probate judge operates on a fee system. Corley v. State Dep't. of Indus. Relations , 655 So. 2d 1041, 1042 (Ala. Civ. App. 1995).

The county commission does not exercise any control over the employees of a probate judge operating on a fee system, and the commission does not provide a salary or other benefits to these employees. Accordingly, it is the opinion of this Office that, based on the plain language of the statute and prior opinions of the Alabama courts and this Office, employees of a probate judge operating on a fee system are not considered county employees if the county commission does not pay the salary of the employees. As a result, if the probate judge of Winston County hires the former chief clerk as a regular clerk paid solely by the probate judge, she may run for probate judge while maintaining her position as a regular clerk.

Employees of a probate judge operating on a fee system are not considered county employees if the county commission does not pay the salary of those employees. As a result, if the probate judge of Winston County hires the former chief clerk as a regular clerk paid solely by the probate judge, she may run for probate judge while maintaining her position as a regular clerk.

I hope this opinion answers your questions. If this Office can be of further assistance, please contact Rushing Payne of my staff.

Sincerely,

TROY KING

Attorney General

By: BRENDA F. SMITH

Chief, Opinions Division

TK/WRP

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