Alabama Advisory Opinions August 24, 2005: AGO 2005-187 (August 24, 2005)

AGO 2005-187.

Dear Judge Day:

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

1. Does the required time of leave under section 17-1-7(d) of the Code begin with the time that qualifying documents are filed with the local party? If not, are there any other activities or ethical concerns that would require the employee to take leave prior to filing qualifying documents with the local party?

2. May a county employee in the probate court engage in political activities after work and on personal time before the employee takes the approved leave required in section 17-1-7(d) of the Code of Alabama?

Your request states that a probate court employee plans to seek the office of probate judge and has concerns about certain actions the employee may take while campaigning for office. Section 17-1-7 of the Code of Alabama is applicable to your questions. The pertinent provisions of this section provide as follows:

(a) (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.

. . . .

(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.

. . . .

(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.

This Office has previously held that an employee in the probate judge's office is a county employee and is subject to the provisions of section 17-1-7 of the Code relating to county employees. Opinion to Honorable Tom Burleson, Cullman County Probate Judge, dated August 24, 2000, A.G. No. 2000-221. Section 17-1-7(d) of the Code requires a county employee who seeks the office of probate judge in the same county where he or she is employed to be on leave, either paid or unpaid, from the date the employee qualifies to run for the office until the date the election results are certified, until the person is no longer a candidate, or until the person is the only remaining candidate on the ballot for that position. Opinion to Honorable Lesley Vance, Member, House of Representatives, dated October 20, 1999, A. G. No. 2000-010; Opinion to Honorable Jack Page, Member, House of Representatives, dated April 29, 1996, A. G. No. 96-00200.

Although this Office has never specifically addressed this issue, the required leave begins to run from the date the employee files his or her qualifying papers with the political party seeking the nomination for the office. This opinion is based on the specific language used in section 17-1-7 of the Code. Under the established rules of statutory construction, words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used, a court is bound to interpret that language to mean exactly what it says. Ex parte Cove Properties, Inc. , 796 So. 2d 331, 333-34 (Ala. 2000); Ex parte T.B ., 698 So. 2d 127, 130 (Ala. 1997).

Section 17-1-7(d) of the Code states that the time period for taking leave begins from the date the person "qualifies to run." This section implies that the person must file qualifying papers. A person may become a "candidate" for purposes of the Fair Campaign Practices Act by: (1) filing qualifying papers to run for office or (2) before qualifying papers are filed, by receiving contributions or making expenditures at or above a threshold amount with a view toward bringing about his or her nomination or election. Ala. Code § 17-22A-2(a)(1) (Supp. 2004). Section 17-1-7(d) of the Code does not make reference to the term "candidate" or to the definition as defined in the Fair Campaign Practices Act. Accordingly, for purposes of section 17-1-7(d) of the Code, an employee must take a leave of absence from the date he or she files qualifying papers to run for the office.

During the period of time the county employee continues to work for the county, before the required leave begins, the employee may engage in political activities to the same extent as any other citizen. The employee shall not use any state, county, or city funds, property, or time for any political activities, and the employee must be on approved leave or off duty and on personal time, before or after work and on holidays, to engage in any political activities. The employee may not solicit campaign contributions from subordinate employees or coerce or attempt to coerce any subordinate employee to work in any capacity in any political campaign or for any political cause.

Under section 17-1-7(d) of the Code of Alabama, an employee must take a leave of absence from the date he or she files qualifying papers to run for office. Before the leave of absence begins, the employee may engage in political activities while the employee is on approved leave, off duty, and on personal time, before or after work, and on holidays.

(3) May the employee, who is a licensed attorney, practice before the probate court while on approved leave as long as no compensation or benefit is paid to the employee by the Morgan County Commission?

In general, an employee on approved leave, even on unpaid leave, is still considered an employee of the county and, thus, subject to any county personnel rules and regulations. See Opinion to Honorable Larry Bennich, Chairman, Morgan County Commission, dated February 11, 1998, A.G. No. 98-00090. If the county personnel rules prohibit an employee from representing clients before the probate court or the county commission, then an employee on leave would also be prohibited from representing clients before the probate court or the county commission. This question should be addressed by the county personnel officer, the State Ethics Commission, and the Alabama State Bar.

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

Sincerely,

TROY KING

Attorney General

By: BRENDA F. SMITH

Chief, Opinions Division

TK/BFS

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