Alabama Advisory Opinions October 05, 2001: AGO 2002-016 (October 5, 2001)

Alabama Attorney General Opinions

2001.

AGO 2002-016.

Dear Sheriff Jones:

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

QUESTIONS

Do the requirements of section 17-1-7(d) of the Code of Alabama require or mandate that deputy sheriffs or employees of the Shelby County Sheriff's Office, who wish to seek election to the office of Sheriff of Shelby County, must take a leave of absence from employment or otherwise use accrued overtime leave or accrued vacation time from the date he or she qualifies to run for said office until the date on which the election results are certified?

If the answer to the above question is yes, would there be an exception to this requirement for the Chief Deputy Sheriff and/or the Operations Manager of the Shelby County Sheriff's Office, both of whom are sworn deputy positions who serve at the pleasure and sole discretion of the Sheriff and do not fall under the authority of the Law Enforcement Personnel Board?

FACTS AND ANALYSIS

The office of Sheriff is a hybrid office; thus, for some purposes, it is considered a county office and, for other purposes, it is a state office. This Office has previously held, based upon case law, that deputy sheriffs, as employees of the sheriff, are state employees, not county employees. Opinions to Honorable John Mark Tirey, Sheriff, Walker County, dated February 23, 2000, A.G. No. 2000-093; to Honorable C. Scott Johnson, Attorney, Walker County Commission, dated February 23, 2000, A.G. No. 2000-092; to Honorable Tyler Roden, Sheriff, Cullman County, dated March 31, 1998, A.G. No. 98-00121; and to Honorable Jack Page, Member, House of Representatives, dated April 29, 1996, A.G. No. 96-00200.

Your request states that all law enforcement officers employed in Shelby County, including law enforcement officers employed by the Sheriff's Office, are subject to the Shelby County Law Enforcement Personnel Board (LEPB) created by Act No. 79-524, as amended by Act No. 94-547. This local Act provides that all law enforcement employees employed by the sheriff, with the exception of the Chief Deputy Sheriff and the Operations Manager, are subject to the rules and regulations of the LEPB. 1979 Ala. Acts No. 79-524, 935, as amended by 1994 Ala. Acts No. 94-547, 1001. The Chief Deputy and the Operations Manager serve at the pleasure and sole discretion of the Sheriff. 1994 Ala. Acts No. 94-547, 1001. Non-law enforcement employees of the Sheriff's Office are subject to a separate personnel board applicable to all general employees of Shelby County. See 1993 Ala. Acts No. 93-664, 1148.

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 as follows:

(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 subordinated 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.

ALA. CODE § 17-1-7(c) and (d) (1995) (emphasis added).

Section 20 of Act No. 79-524, as amended by Act No. 94-547, places prohibitions on some political activities by law enforcement personnel employed by the sheriff, such as prohibiting solicitation of contributions and participating in a campaign. 1979 Ala. Acts No. 79-524, 935. These prohibitions are in conflict with the rights given to city, county, and state employees in section 17-1-7(a) of the Code of Alabama. This section states in pertinent part as follows:

(2) No person in the employment of any county, whether classified or unclassified, shall be denied the right to participate in city, county, or state political activities to the same extent as any other citizen of the State of Alabama, including endorsing candidates and contributing to campaigns of his or her choosing.

(3) No person in the employment of the State of Alabama, whether classified or unclassified, shall be denied the right to participate in city, county, or state political activities to the same extent as any other citizen of the State of Alabama, including endorsing candidates and contributing to campaigns of his or her choosing. Notwithstanding the foregoing, any person within the classified service shall comply with Section 36-26-38.

(4) All persons in the employment of any city, county, or state shall have the right to join local political clubs and organizations, and state or national political parties.

(5) All persons in the employment of any city, county, or state shall have the right to publicly support issues of public welfare, circulate petitions calling for or in support of referendums, and contribute freely to those of his or her choosing.

ALA. CODE § 17-1-7(a) (1995). Provisions of the general law take precedent over conflicting provisions in a local law; therefore, any employee of the sheriff, although subject to the local personnel board, is entitled to participate in political activities as set forth in section 17-1-7(a) of the Code of Alabama.

Section 17-1-7(d) requires a county employee who runs for a county office to take an unpaid leave of absence, use accrued vacation time, or used accrued overtime from the date the employee qualifies for office until the date the election results are certified. This section is not applicable to deputy sheriffs employed by the sheriff because deputy sheriffs are not considered county employees. Although deputy sheriffs are subject to the rules and regulations of the county law enforcement personnel board, created by Act No. 79-524, as amended, this Act does not make deputy sheriffs county employees or make them subject to section 17-1-7(d) of the Code of Alabama. All other employees of the sheriff's office are generally considered county employees and are, therefore, subject to the provisions of section 17-1-7(d) of the Code of Alabama if they seek a county office. Your request states that the operations manager serves in a deputy position. Accordingly, neither the deputy sheriffs, the chief deputy, nor the operations manager of the Shelby County Sheriff's Office are subject to the provisions of section 17-1-7(d) of the Code of Alabama.

CONCLUSION

The provisions of section 17-1-7(d) of the Code of Alabama are not applicable to deputy sheriffs, the chief deputy, or the operations manager of the Shelby County Sheriff's Office.

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

52281v3/30503