Alabama Advisory Opinions May 02, 2006: AGO 2006-093 (May 2, 2006)

AGO 2006-093.

Dear Senator Means:

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

1. If the legislative salary is forfeited, can a supernumerary circuit clerk qualify for political office?

2. If the legislative salary is forfeited, can a supernumerary circuit clerk serve in a legislative capacity?

Section 280 of the Constitution of Alabama and section 36-2-1 of the Code of Alabama prohibit an individual from holding two offices of profit simultaneously.

Ala. Const. art. XVII, § 280; Ala. Code § 36-2-1 (2001). The Alabama Supreme Court and this Office have previously determined that a legislator holds an office of profit . Smith v. State , 276 Ala. 378, 162 So. 2d 473 (1964); Opinion to Honorable Bob McKee, Member, House of Representatives, dated June 14, 2002, A.G. No. 2002-258. The Alabama Supreme Court has stated that a position or office is an "office of profit" if: (1) the officeholder exercises some part of the sovereign power of the State, and (2) the officeholder is entitled to compensation for the performance of the duties of the office. Opinion of the Justices No. 64, 244 Ala. 386, 13 So. 2d 674 (1943).

This Office has determined that both the office of circuit clerk and the office of supernumerary circuit clerk are offices of profit. Opinions to Honorable Harce Hill, Circuit Clerk, Lawrence County, dated September 20, 2000, A. G. No. 2000-241 and to Honorable Fred L. Huggins, Judge of Probate, Clarke County, dated August 11, 1988, A.G. No. 88-00416. The qualifications to become a supernumerary circuit clerk are set forth in sections 12-17-140 through 12-17-147 of the Code of Alabama.

Ala Code § 12-17-140 to 12-17-147 (1995 ZZZHHH Supp. 2005). A supernumerary circuit clerk takes the oath of office prescribed for clerks, fills any vacancy in the office of circuit clerk in that county, serves for life, and receives an annual salary.

Ala. Code §§ 12-17-141, 12-17-142 (1995). Thus, a supernumerary circuit clerk also holds an office of profit.

A supernumerary circuit clerk may not serve in that position and as a member of the Legislature at the same time. This Office has stated that a person may not decline or forfeit the compensation for one of the offices and continue to serve in both offices. Opinion to Honorable William D. Latham, Attorney, Town of Jemison, dated January 19, 2000, A.G. No. 2000-064. It is the element of compensation belonging to the office that is one of the determining factors of an office of profit. Id . Accordingly, a supernumerary circuit clerk may not simultaneously serve as a legislator, even if the person declines compensation for one of the offices. If a person enters a second office of profit, the first office is vacated by operation of law. Smith , 276 Ala. at 379, 162 So. 2d at 474. Thus, if a supernumerary circuit clerk takes office as a legislator, the circuit clerk would automatically vacate the office of supernumerary circuit clerk.

Your first question relates to whether the supernumerary circuit clerk may qualify and be a candidate for an elective office. Nothing in the Code of Alabama or the Alabama Constitution prohibits a supernumerary circuit clerk from being a candidate and running for an elected office while serving in the position of supernumerary circuit clerk. If the supernumerary clerk is elected and takes the oath of office as a member of the Legislature or to any other office of profit, the supernumerary circuit clerk automatically vacates the office of supernumerary circuit clerk.

A supernumerary circuit clerk may be a candidate for an elective office while serving as a supernumerary circuit clerk. A supernumerary circuit clerk may not serve as a supernumerary circuit clerk and as a member of the Legislature at the same time, because both positions are offices of profit. A supernumerary circuit clerk may not serve in both positions by declining the compensation paid for one of the positions. If the supernumerary circuit clerk is elected and assumes the office of a legislator, the supernumerary circuit clerk vacates the position as supernumerary circuit clerk.

I hope this opinion answers your questions. If this Office can be of further assistance, please contact me.

Sincerely,

TROY KING

Attorney General

By: BRENDA F. SMITH

Chief, Opinions Division

TK/BFS

121711/93997