Alabama Advisory Opinions November 05, 1996: AGO 1997-034 (November 5, 1996)

AGO 1997-034.

Dear Mayor Kritter:

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

Who is included within the definition of employee, other than paid employees? Specifically, are reserve police officers employees? Are reserve officers required to take a leave of absence in order to run for elective office? Are volunteer firemen employees?

Your request provides the following information:

Our Town has a police reserve program. The Council approves these persons to be reserves. They ride with our on-duty police, and they also carry a weapon. We have a reserve manual that this program goes by. They are not paid. They do wear the uniform just like the police department only their patch says RESERVE.

The council has full authority over them since they are so closely working beside our full-time officers and carry a weapon.

Our firemen are selected by the fire department which is all volunteer. The council does not select firemen. That is left up to the fire department.

Municipalities are authorized to appoint reserve law enforcement officers pursuant to Code of Alabama 1975, _ 11-43-210. This section provides that the reserve officers may be appointed "with or without compensation" and "serve at the pleasure of the municipal appointing authority."

An "employee" is defined in Black's Law Dictionary , p. 471 (Fifth ed. 1979), as follows:

"A person in the service of another under any contract of hire, express or implied, oral or written, where the employer has the power or right to control and direct the employee in the material details of how the work is to be performed. (Citations omitted.) One who works for an employer; a person working for salary or wages. . . .

"The term is often specially defined by statutes (e.g. workers' compensation acts; Fair Labor Standards Act), and whether one is an employee or not within a particular statute will depend upon facts and circumstances."

Based upon the foregoing, a volunteer fireman does not appear to be a municipal employee, but a reserve police officer may be considered a municipal employee for certain purposes. With respect to whether a person must take a leave of absence to run for elective office, our inquiry must begin by reviewing the provisions of Code of Alabama 1975, _ 17-1-7(d). This section provides:

". . . any employee of a county or 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 not other candidates on the ballot. . . ."

The language used in this provision would not appear to apply to a person or employee who does not receive compensation or earn overtime or vacation time from the city. Thus, based upon this provision, an unpaid reserve police officer would not be required to take a leave of absence in order to run for a municipal office. However, since reserve officers serve at the pleasure of the municipal appointing authority, the city council could adopt a policy that requires reserve police officers to take a leave of absence from the job in order to run for a municipal elective office.

Whether a particular person is a municipal employee depends upon the facts and circumstances and any applicable statutes or ordinances.

I hope this sufficiently answers your questions. If our office can be of further assistance, please contact Brenda F. Smith of my staff.

Sincerely,

JEFF SESSIONS

Attorney General

By: JAMES R. SOLOMON, JR.

Chief, Opinions Division

JS/BFS

K/10.96/f