Alabama Advisory Opinions February 28, 2002: AGO 2002-156 (February 28, 2002)

AGO 2002-156.

Dear Representative Vance:

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

Would the Motor Vehicle License Commissioner in Russell County have to take an unpaid leave of absence once she qualifies for the position of Russell County Revenue Commissioner?

The position of Motor Vehicle License Commissioner is created in Russell County pursuant to Act No. 85-345. Section 1 of the Act states as follows:

This act relates to Russell County. There is hereby created a Motor Vehicle License Division under the jurisdiction and supervision of the Russell County Commission. Said Division shall function under the direction and administrative supervision of a Motor Vehicle License Commissioner who shall be appointed by the county commission and serve at its pleasure. The county commission shall set said commissioner's salary and expense allowance.

1985 Ala. Acts No. 85-345, 285.

The office of county revenue commissioner was created for Russell County pursuant to Act No. 86-493, which provides, in pertinent part, as follows:

The offices of tax assessor and tax collector of Russell County are hereby abolished effective upon the approval of a majority of the electors of Russell County. Upon the abolition of such offices, the office of county revenue commissioner shall be created. The tax collector in office when the office of tax collector is abolished shall be the county revenue commissioner for the remainder of the term for which he was elected tax collector. Thereafter the revenue commissioner shall be elected every six years. . . .

1986 Ala. Acts No. 86-493, 935. The employees of the Revenue Commissioner are hired pursuant to section 3 of the Act, which states:

Subject to the approval of the Russell County Commission, the county revenue commissioner shall appoint and fix the duties and compensation of a sufficient number of deputies, clerks and assistants to perform properly the duties of his office. Id . at 935-6. Section 5 of the Act provides:

The Russell County Commission shall provide the necessary offices for the county revenue commissioner in the courthouse, and shall provide all stationery, equipment, and office supplies, not otherwise furnished by law, needed for the efficient performance of the duties of the office. Id . at 936.

Section 17-1-7(d) of the Code of Alabama 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.

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

This Office has previously held that the chief clerk employed in the Cullman County Probate Judge's Office and paid by the county commission is a county employee and is required to take a leave of absence while seeking the office of Probate Judge for Cullman County. Opinion to Honorable Tom Burleson, Cullman County Probate Judge, dated August 24, 2000, A. G. No. 2000-221. That opinion states as follows:

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.

Burleson at 2.

In this case, the Motor Vehicle License Commissioner is an employee of the county. The office of Revenue Commissioner for Russell County is an elected county office, which is a part of the county government. The employees of the Revenue Commissioner are appointed with the approval of the Russell County Commission. The county commission provides the necessary office space and equipment for the Revenue Commissioner. Accordingly, as a county employee, running for the office of county Revenue Commissioner, the county Motor Vehicle License Commissioner is seeking office "with the governmental entity with which he or she is employed." ALA. CODE § 17-1-7(d) (1995).

Questions have been raised concerning the opinion to Honorable Allen C. Jones wherein this Office indicated that a county employee running for a position on the county board of education was not required to take a leave of absence. Opinion to Honorable Allen C. Jones, Attorney, Pike County Commission, dated May 18, 2000, A.G. No. 2000-149. That opinion noted that the county commission has no control or authority over the county board of education. The county board of education is a separate entity from the county commission and other county offices, it has a separate budget, and hires its owns employees. ALA. CODE § 16-8-1, et seq . (2001). Although that opinion stated that, if a county employee runs for the county commission , the employee must take a leave of absence pursuant to section 17-1-7, the opinion should not be understood to mean that the county commission is the only office to which the leave requirement applies. A county employee who seeks election to any county office that is considered a part of the county government, as discussed previously in this opinion, must take a leave of absence pursuant to section 17-1-7 of the Code of Alabama. CONCLUSION

The Motor Vehicle License Commissioner for Russell County is a county employee and must take a leave of absence as required by section 17-1-7(d) of the Code of Alabama while seeking the office of Russell County Revenue Commissioner.

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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