Alabama Advisory Opinions December 21, 1993: AGO 94-00026 (December 21, 1993)

Advisory Opinion Text

Honorable Jim Bennett

Secretary of State

P.O. Box 5616

Montgomery, AL 36130

RE: Clarification of Opinion No. 94-00026

Dear Mr. Bennett:

This letter is sent in order to clarify a question that has arisen with respect to an opinion addressed to you numbered 94-00026 and dated October 22, 1993.

On page 3 of that opinion we state that a circuit clerk is disqualified from serving as the absentee election manager when the circuit clerk is a candidate. The opinion should state that the circuit clerk is disqualified from serving as the absentee election manager when the circuit clerk is a candidate and has opposition.

We regret any inconvenience or confusion we may have caused and hope this resolves any questions.

Sincerely,

James R. Solomon, Jr. Chief.

Attachment

October 22, 1993

Honorable Jim Bennett

Secretary of State

P.O. Box 5616

Montgomery, AL 36103

Election Officials -Candidates - Probate Judges -Sheriffs - Circuit Clerks

The probate judge, the circuit clerk and the sheriff may perform all election duties set forth in the Code unless the Code specifically prohibits the performance of this duty when the official is a candidate in the election. However, a county official may voluntarily disqualify himself.

Dear Mr. Bennett:

This opinion is issued in response to your request for an opinion from the Attorney General.

QUESTION

To what extent, if any, should the probate judge, circuit clerk, and sheriff be Involved in the election process when any of them are on the ballot as a candidate?

FACTS AND ANALYSIS

The probate judge, the sheriff and the circuit clerk act as the appointing board for election officials pursuant to Code of Alabama 1975, § 17-6-1, which states:

"The judge of probate, sheriff and cleric of the circuit court, or a majority of them acting as an appointing board, must, not more than 20 nor less than 15 days before the holding of any election in their county, appoint from the qualified electors of the respective voting places . . . three inspectors and two clerks for each place of voting ..."

A county officer is not eligible to serve on the appointing board if the officer is a candidate in the election. Code of Alabama 1975, § 17-6-3, provides:

"When the judge of probate, sheriff or clerk of the circuit court is a candidate for election to any office at that election, he shall not serve on the appointing board. The judge of probate shall certify to the clerk or register of the circuit court the fact of the candidacy of any member of the appointing board immediately after the certificate of nomination, or petition, as provided in section 17-7-1, is filed with him . . . ."

An ineligible member is replaced pursuant to Code of Alabama 1975, § 17-6-4, which states:

"Upon receiving the certificate provided for in section 17-6-3, the clerk or register of the circuit court shall forthwith and without delay appoint a qualified elector to take the place of each member of the appointing board who is a candidate for election, and shall cause the elector so appointed to be informed of his appointment; but no person shall be appointed who is a candidate for any office to be voted for in that election.

"Any person serving as a member of the appointing board shall receive $4.00 for such service.

"The person so appointed shall perform all the duties and be vested with all the powers of the regular members of the appointing board, and shall take an oath to faithfully perform his duties."

The above Code section, as well as other provisions of the Code , prohibit county officials from performing certain election duties when they are a candidate in the election. The probate judge, the circuit clerk and the sheriff may perform all election duties set forth in the Code unless the C ode specifically prohibits this when the official is a candidate in the election. For example, although the sheriff would be prohibited by section 17-6-3 from serving on the appointing board if he is a candidate in the election, the Code does not prohibit the sheriff from performing the duty set forth in section 17-6-2 of notifying the inspectors and returning officers of their appointment by the appointing board.

Your request refers to duty of the circuit clerk to serve as the absentee election manager and the duty of the probate judge to conduct election official training sessions. With respect to the absentee election manager, it should be noted that Code of Alabama 1975, § 17-10-13, specifies that the circuit clerk is disqualified from serving as the absentee election manager when the circuit clerk is a candidate. This issue is also discussed in a prior opinion to Honorable John Bobby Green, Circuit Clerk, Blount County, dated August 6, 1987, A.G. No. 87-00277. As to the duty of the probate judge to conduct training sessions for election officials, there is no specific provision prohibiting this if the probate judge is a candidate. Code of Alabama 1975, § 17-9-19.

It is our opinion, however, that a county official may voluntarily disqualify himself from performing certain election duties if he feels that performing that duty would be or would appear to be a conflict of interest.

CONCLUSION

The probate judge, the circuit clerk and the sheriff may perform all election duties set forth in the Code unless the Code specifically prohibits the performance of this duty when the official is a candidate in the election. A county official may voluntarily disqualify himself from performing certain election duties if he feels his candidacy would be or would appear to be a conflict of Interest.

I hope this sufficiently answers your question. If our office can be of further assistance, please do not hesitate to contact us.

Sincerely,

JIMMY EVANS Attorney General.

JAMES R. SOLOMON, JR. Chief.