Alabama Advisory Opinions January 10, 2014: AGO 2014-036 (January 10, 2014)

Advisory Opinion Text

Honorable Ana W. Franklin

Sheriff of Morgan County

119 Lee Street, NE

Decatur, Alabama 35601

Sheriffs-County Employees-Candidates-Leaves of Absence-License Commissioners-Morgan County

The administrative assistant for the Sheriff of Morgan County must take an unpaid leave of absence, use accrued overtime leave, or use accrued vacation time to seek election for the office of Revenue Commissioner of Morgan County.

Dear Sheriff Franklin:

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

QUESTION

Must the administrative assistant for the Sheriff of Morgan County take a leave of absence to run for the office of Revenue Commissioner of Morgan County?

FACTS AND ANALYSIS

Section 17-1 -4(b) of the Code of Alabama states as follows:

(b) Notwithstanding Section 17-17-5 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 § 17-1-4(b) (2006); see, 2006 Ala. Acts No. 2006-570, 1331, § 2 (transferring this section from former section 17-1 -7(d)).

In a previous opinion to Honorable Jack Page, this Office explained, as follows, the effect of former section 17-1-7(d) of the Code, now codified at section 17-1 -4(b), upon employees in the Sheriff's Department:

A sheriff is an executive officer of the state. Federal and state courts have determined that deputy sheriffs are extensions of the sheriff and, therefore, state employees for some purposes. Accordingly, we are of the opinion that for purposes of § 17-1-7(d), deputy sheriffs are state employees, not county employees, and are not covered by the provisions of § 17-1-7(d).

We note that § 17-1-7(e) permits law enforcement officers, peace officers, and firefighters, when off duty, out of uniform and acting as a private citizen to engage in state, county, and city political activity "so long as there is compliance with this section." This permits law enforcement officers, peace officers, and firefighters to engage in political activities as long as they comply with the requirements of § 17-1-7.

Pursuant t o § 17-1-7 (d), previously quoted, county employees who have the county commission as the employing authority, are required to take an unpaid leave of absence or use accrued overtime or vacation leave when seeking a political office with the county.

With regard to jailers, Code of Alabama 1975, § 14-6-1 specifically provides that jailers are appointed by the sheriff. The sheriff may also dismiss the jailer. Therefore, the county commission is not considered as the employing authority of the jailer, and jailers are not subject to § 17-1-7(d).

As to clerical employees of the sheriff and dispatchers, they are generally considered county employees with the county commission as the employing authority. Furthermore, dispatchers, in most instances, and clerical employees of the sheriff generally are not considered law enforcement officers or peace officers. Therefore, they are subject to the requirements of § 17-1-7(d).

Opinion to Honorable Jack Page, Member, House of Representatives, dated April 29, 1996, A.G. No. 96-00200 (internal citations omitted) (emphasis added). See opinion to Honorable James Jones, Sheriff of Shelby County, dated October 5, 2001, A.G. No. 2002-016 (because the Shelby County operations manager was a sworn deputy, section 17-1 -7(d) was not applicable); see also, opinion to Honorable Mac Holcomb, Sheriff of Marshall County, dated March 21, 2006, A.G. No. 2006-072 (deputy sheriff is not required to take leave of absence to seek the office of sheriff).

The Office of Revenue Commissioner for Morgan County is an elected county office. 1973 Ala. Acts No. 261, 294. Thus, as a county employee running for a county office, section 17-1 -4(b) of the Code applies.

CONCLUSION

The administrative assistant for the Sheriff of Morgan County must take an unpaid leave of absence, use accrued overtime leave, or use accrued vacation time to seek election for the office of Revenue Commissioner of Morgan County.

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

Sincerely,

LUTHER STRANGE, Attorney General.

BRENDA F. SMITH, Chief, Opinions Division.