Alabama Advisory Opinions October 17, 2018: AGO 2019-004 (October 17, 2018)

Advisory Opinion Text

Honorable Theodore Lawson

Attorney, Jefferson County Commission

716 Richard Arrington Jr. Blvd. North

Room 280

Birmingham, Alabama 35203

Employees Employers, Employment - County Employees -Jefferson County

The Jefferson County Commission may employ a person who is a commissioner-elect as an administrative assistant under section 45-37-71 of the Code of Alabama.

Dear Mr. Lawson:

This opinion of the Attorney General is issued in response to your request on behalf of the Jefferson County Commission.

QUESTION

May Jefferson County employ a person who is a commissioner-elect to the position of commissioner administrative assistant?

FACTS AND ANALYSTS

Your request states that after the Republican primary on June 5, 2018, one candidate was certified as the Republican nominee for Jefferson County Commission District 5. You further state that there is no other candidate that will be on the general election ballot in opposition to that nominee. The current commissioner for District 5 has a vacancy in his office and would like to hire this nominee until such time that the nominee assumes office.

Section 45-37-71(a) of the Code of Alabama authorizes the Jefferson County Commission to employ three employees for each commissioner. Ala. Code § 45-37-71(a) (2014). Section 45-37-71(b) of the Code of Alabama expressly states that an employee serving in such a staff position "shall not run for elected office while so employed." Ala. Code § 45-37-71(b) (2014). The statute does not define "run," much less clarify when a candidate is considered to have ceased running.

As you correctly point out, however, guidance can be found in section 17-1 -4(b) of the election statutes, which requires a county employee, who has the county commission as his or her employing authority, to take an unpaid leave of absence or use accrued overtime or vacation leave when seeking a political office with the county. Ala. Code § 17-l-4(b) (2006). Section 17-l-4(b) 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.

Id. (emphasis added).

Section 17-1 -4(b) provides an exemption when a county employee wins his party's nomination for a county office and there is no opposition in the general election, or when the employee is the only candidate seeking his party's nomination in the primary and there is no opposition in any other party's primary. Opinion to Honorable Jack Page, Member, House of Representatives, dated April 29, 1996, A.G. No. 96-00200. The inclusion of this exemption indicates the Legislature's intent that a candidate who has no opposition on a ballot is not "running" for that office. Instead, such a person is the presumptive winner or chosen candidate for that position. Accordingly, the Republican nominee in this matter is no longer "running" for office, but instead, should be considered the presumptive winner or the Jefferson County Commissioner-Elect for District 5.

CONCLUSION

The Jefferson County Commission may employ a person who is a commissioner-elect as an administrative assistant under section 45-37-71 of the Code of Alabama.

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

Sincerely,

STEVE MARSHALL Attorney General.

G. WARD BEESON, III Chief, Opinions Division