Alabama Advisory Opinions March 21, 2006: AGO 2006-072 (March 21, 2006)

AGO 2006-072.

Dear Sheriff Holcomb:

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

1. Is the office of sheriff, according to the Alabama Constitution, a state office, even if the sheriff is paid by county funds?

2. Does amendment 647 of the Alabama Constitution, pertaining to Marshall County, which places deputies under the authority of the Marshall County Personnel Board, make them county employees?

3. If deputies are indeed county employees according to amendment 647 and the sheriff is a state official, is it necessary for a deputy to take a leave of absence without pay to run for the office of sheriff, even if the sheriff does not require a deputy to do so?

Section 112 of article V of the Alabama Constitution provides that the "executive department shall consist of a governor . . . and a sheriff for each county."

Ala. Const. art. V, § 112. Based on this provision of the Alabama Constitution and case law, this Office has previously stated that a sheriff is an executive officer of the state. Opinion to Honorable Jack Page, Member, House of Representatives, dated April 29, 1996, A.G. No. 96-00200 (citing section 112 of article V of the Alabama Constitution and Parker v. Amerson , 519 So. 2d 442 (Ala. 1987)).

Your second and third questions concern whether deputy sheriffs are county employees and, thus, subject to the political activity restrictions found in section 17-1-7(d) of the Code of Alabama. Section 17-1-7(d) states as follows:

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 stated that this provision requires a county employee, i.e., a person paid by the county commission and working in a county office, to take a leave of absence while seeking a county office. Opinions to Honorable Karen W. Albrecht, DeKalb County Revenue Commissioner, dated March 28, 2002, A. G. No. 2002-190; and to Honorable Tom Burleson, Cullman County Probate Judge, dated August 24, 2000, A.G. No. 2000-221.

Federal and state courts have determined that deputy sheriffs are extensions of the sheriff and, therefore, state employees for some purposes. Cofield v. Randolph County Comm'n , 844 F.Supp. 1499 (M.D. Ala. 1994); Whitten v. Lowe , 677 So. 2d 778 (Ala. Civ. App. 1995). Accordingly, this Office has opined that, for purposes of section 17-1-7(d), deputy sheriffs are state employees, not county employees, and are not covered by the provisions of section 17-1-7(d). A.G. No. 96-00200. Thus, ordinarily, deputy sheriffs are not considered county employees and are not required to take a leave of absence under section 17-1-7(d) of the Code to run for a county office.

Your request notes that all deputies, except the chief deputy, employed by the sheriff of Marshall County are subject to the authority of the Marshall County Personnel Board by virtue of amendment 647, which states as follows:

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.

Ala. Const. Local Amends., Marshall County § 5 (amend. 647).

This Office has previously recognized that, pursuant to this amendment, deputy sheriffs in Marshall County are subject to the Marshall County Personnel Board. Opinion to Honorable Mac Holcomb, Sheriff, Marshall County, dated May 25, 2000, A. G. No. 2000-155 (a deputy sheriff is not required by section 17-1-7(d) to take a leave of absence to run for the office of constable). This amendment treats deputy sheriffs as county employees for purposes of the county personnel board and the county merit system. By treating deputy sheriffs as county employees, a deputy sheriff in Marshall County is subject to section 17-1-7(d) of the Code and must take a leave of absence under that section when he or she is a candidate for a county elective office. If a deputy sheriff is a candidate for a state elective office (or a municipal elective office), the deputy is not required under section 17-1-7(d) to take a leave of absence from his or her employment in the sheriff's office.

As stated above, the office of sheriff is a state office. Thus, a deputy sheriff who is a candidate for the office of sheriff is a candidate for a state elective office. As a candidate for a state elective office, a deputy sheriff in Marshall County, who is also subject to the county personnel board and is treated as a county employee, is not required to take a leave of absence to seek the office of sheriff of Marshall County. Section 17-1-7(c) does, however, prohibit a deputy sheriff from using public property or time for political activities.

Ala. Code § 17-1-7(c) (1995).

The previous Holcomb opinion is modified to be consistent with this opinion. The previous opinion stated that a deputy sheriff subject to the county personnel board who runs for the office of constable is not required to take a leave of absence because county employees must take a leave of absence only if running for the office of county commission. A. G. No. 2000-155. This Office has clarified that section 17-1-7(d) of the Code requires a county employee to take a leave of absence when the employee seeks any county elective office, not just the office of county commissioner. A. G. Nos. 2002-190, 2000-221.

The office of sheriff is a state office. A deputy sheriff in Marshall County is subject to the county personnel board by virtue of a local constitutional amendment and, accordingly, is considered a county employee for purposes of section 17-1-7(d) of the Code of Alabama. A deputy sheriff in Marshall County is not required, however, to take a leave of absence to seek the office of sheriff of 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,

TROY KING

Attorney General

By: BRENDA F. SMITH

Chief, Opinions Division

TK/BFS

106598/91871