Alabama Advisory Opinions August 24, 2000: AGO 2000-221 (August 24, 2000)

AGO 2000-221.

Dear Mr. Burleson:

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

Is the Chief Clerk in the Cullman County Probate Judge's Office required to take a leave of absence while running for the Office of Probate Judge?

The chief clerk in the Cullman County Probate Judge's Office is appointed by the probate judge, and the chief clerk's salary is paid by the Cullman County Commission. See ALA. CODE § 12-13-40 (1995); 1973 Ala. Acts No. 707, 1058. The chief clerk is subject to the personnel system established for Cullman County but is included in the exempt service. 1980 Ala. Acts No. 80-549, 851. The chief clerk is running for the Office of Probate Judge of Cullman County. The Office of Probate Judge is an elected county office. ALA. CODE § 17-2-1 (1995). Your request states that the Cullman County Probate Judge does not serve on the Cullman County Commission.

Section 17-1-7(d) provides a specific exception to the general rule that allows county employees to run for office to the same extent as any other citizen. This section states as follows:

(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.

The term "governmental entity" means either city government or county government as the case may be. The probate judge's office is part of the county government. This Office has previously held that section 17-1-7(d) requires the chief clerk of the probate judge's office, who is appointed by the probate judge and paid by the county commission, to take a leave of absence in order to run for the office of probate judge. Opinion to Honorable Louis C. Rutland, Attorney, Bullock County Commission, dated April 3, 2000, A.G. No. 2000-113. This Office has also held that an employee of the county commission who qualifies to seek political office as a member of the county commission that employs him must be on leave, either paid or unpaid, from the date the employee qualifies to run for office until the date the election results are certified. Opinions to Honorable Harry O. Adkison, Chairman, Geneva County Commission, dated May 19, 2000, A.G. No. 2000-153, and to Honorable Allen C. Jones, Attorney, Pike County Commission, dated May 18, 2000, A.G. No. 2000-149.

A chief clerk in the probate judge's office is a county employee. As a county employee, running for the office of probate judge, the chief clerk is seeking office "with the governmental entity with which he or she is employed," because the chief clerk is employed by the county commission, as well as the probate judge.

The chief clerk employed in the Probate Judge's Office and paid by the Cullman County Commission is a county employee and is required by section 17-1-7(d) of the Code of Alabama to take a leave of absence while seeking the office of Probate Judge of Cullman County.

I hope this opinion answers your question. 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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