Alabama Advisory Opinions March 17, 2006: AGO 2006-067 (March 17, 2006)

AGO 2006-067.

Dear Ms. Walden:

This opinion of the Attorney General is issued in response to your request on behalf of the City of Boaz.

Must a police officer employed by the City of Boaz take a leave of absence from his job to be a candidate for the office of Marshall County Sheriff?

A police officer employed by the City of Boaz plans to be a candidate for the office of Marshall County Sheriff. The city has asked if the police officer is required to take a leave of absence from his position with the city to seek this office.

Section 17-1-7(d) of the Code of Alabama states as follows:

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).

The police officer is an employee of the City of Boaz. He is not a candidate for a city office. Therefore, the aforementioned statute does not require the police officer to take a leave of absence.

The Alabama Supreme Court, along with various other courts, has consistently and unequivocally held that the sheriff is an executive officer of the state. See Turquitt v. Jefferson County , 137 F.3d 1285 (11th Cir. 1998); McMillian v. Monroe County, 520 U.S. 781, 117 S.Ct. 1734 (1997); Stark v. Madison County, 678 So. 2d 787 (Ala. Civ. App. 1996); Whitten v. Lowe, 677 So. 2d 778 (Ala. Civ. App. 1995); Oliver v. Townsend, 534 So. 2d 1038 (Ala. 1988); King v. Colbert County, 620 So.2d 623 (Ala. 1993); and Parker v. Amerson, 519 So. 2d 442 (Ala. 1987). It is well established in case law and the Alabama Constitution that the sheriff is an Alabama state officer as a member of the executive department. Eubanks v. Hale , 752 So. 2d 1113 (Ala. 1999).

CONCLUSION

Because he is not seeking a municipal political office, a municipal police officer does not have to take a leave of absence from his employment to be a candidate for the office of Marshall County Sheriff.

I hope this opinion answers your question. If this Office can be of further assistance, please contact Don E. Lawley of my staff.

Sincerely,

TROY KING

Attorney General

By: BRENDA F. SMITH

Chief, Opinions Division

TK/DEL

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