Alabama Advisory Opinions May 25, 2000: AGO 2000-155 (May 25, 2000)

AGO 2000-155.

Dear Sheriff Holcomb:

This opinion of the Attorney General is issued in response to your request on behalf of the Marshall County Sheriff's Office. QUESTIONS

1. Is a deputy sheriff of the Marshall County Sheriff's Office, who is employed under the authority of the Marshall County Personnel Board pursuant to Amendment No. 647, con-sidered a county employee subject to section 17-1-7(d) of the Code of Alabama?

2. Since the Marshall County Personnel Board does not address political activity in its handbook, and if the deputy is considered a county employee subject to section 17-1-7(d) of the Code of Alabama, must the deputy take a leave of absence without pay, take vacation time, or take accrued overtime to run for the office of constable?

This Office has previously held, based upon case law, that deputy sheriffs, as employees of the sheriff, are state employees, not county employees. Opinion to Honorable John Mark Tirey, Sheriff, Walker County, dated February 23, 2000, A. G. No. 2000-093; and to Honorable C. Scott Johnson, Attorney, Walker County Commission, dated February 23, 2000, A. G. 2000-092. All deputies, except the chief deputy, employed by the Sheriff of Marshall County, however, are subject to the authority of the Marshall County Personnel Board by virtue of Amendment No. 647, which states:

Effective the first day of the sixth month after the date of the election on the ratification of this amendment, employees of the Office of the Sheriff of Marshall County, except for the chief deputy, are subject to the authority of the Personnel Board of Marshall County, or its successor.

The Marshall County Personnel Board and a merit system for Marshall County were established pursuant to local acts. 1982 Ala. Acts No. 82-206, 242; 1981 Ala. Acts No. 91-296, 554; 1993 Ala. Acts No. 93-549, 904.

Section 17-1-7 of the Code of Alabama sets forth the right of city, county, and state employees to participate in political activities. Section 17-1-7(c) and (d) states:

(c) No person in the employment of the State of Alabama, a county, or a city whether classified or unclassified, shall use any state, county, or city funds, property or time, for any political activities. Any person who is in the employment of the State of Alabama, a county, or a city shall be on approved leave to engage in political action or the person shall be on personal time before or after work and on holidays. It shall be unlawful for any officer or employee to solicit any type of political campaign contributions from other employees who work for the officer or employee in a subordinate capacity. It shall also be unlawful for any officer or employee to coerce or attempt to coerce any subordinate employee to work in any capacity in any political campaign or cause. Any person who violates this section shall be guilty of the crime of trading in public office and upon conviction thereof, shall be fined or sentenced, or both, as provided by Section 13A-10-63.

(d) 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.

Section 17-1-7(d) requires a county employee who runs for the county commission to take an unpaid leave of absence, use accrued vacation time, or use accrued overtime from the date the employee qualifies for office until the date the election results are certified. This section does not require a county employee who is running for any other county office to take a leave of absence. Accordingly, a deputy sheriff who is subject to the Marshall County Personnel Board is not required by section 17-1-7(d) of the Code of Alabama to take a leave of absence to run for the office of constable. Subsection 17-1-7(c) does, however, prohibit the deputy from using public property or time for political activities.

A deputy sheriff in the Marshall County Sheriff's Office is not required by section 17-1-7(d) of the Code of Alabama to take a leave of absence from the Sheriff's Office in order to run for the office of constable in Marshall County.

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

Sincerely,

BILL PRYOR

Attorney General

By: CAROL JEAN SMITH

Chief, Opinions Division

BP/BFS

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