Alabama Advisory Opinions March 26, 2013: AGO 2013-038 (March 26, 2013)

Advisory Opinion Text

Honorable R. Alan Benefield

Executive Secretary

Alabama Peace Officers' Standards and

Training Commission

RSA Union Building

100 North Union Street, Suite 600

Post Office Box 300075

Montgomery, Alabama 36130-0075

Luther Strange

ATTORNEY GENERAL

Peace Officers Standards & Training Commission - Rules and Regulations -Peace Officers - Law Enforcement Officers

The Alabama Peace Officers' Standards and Training Commission ("Commission") has the authority under section 36-21-45(2) and (3) of the Code of Alabama to adopt rules and regulations that expand upon the standards set forth in section 36-21-46 of the Code relating to the physical, mental, and moral fitness of a candidate for the position of law enforcement officer as determined by the Commission.

Dear Chief Benefield:

This opinion of the Attorney General is issued in response to your request on behalf of the Peace Officers' Standards and Training Commission.

QUESTION

Does the Alabama Peace Officers' Standards and Training Commission have the authority under section 36-21-45 of the Code of Alabama to adopt standards for applicants that expand upon the standards set forth in section 36-21-46 of the Code?

FACTS AND ANALYSIS

The authority for the Peace Officers' Standards and Training Commission is found in sections 36-21-40 through 36-21-52 of the Code of Alabama. Your particular inquiry seeks clarification as to whether section 36-21-45 authorizes the Commission to expand upon prescribed standards for employment as a law enforcement officer that are set forth in section 36-21-46 of the Code.

Section 36-21-45 of the Code sets forth the functions and duties of the Commission. Section 36-21-45(2) and (3) states as follows:

(2) To review from time to time the standards described in Section 36-21-46 for applicants for and appointees as law enforcement officers.

(3) To consider, hold public hearings on, adopt and promulgate standards relating to the physical, mental, and moral fitness of any applicant for or appointee as a law enforcement officer as do not lower the standards in Section 36-21-46 or as otherwise permitted by Section 36-21-46.

Ala. Code § 36-21-45(2) and (3) (2001).

Based on the plain language used in this section, the Commission is authorized to promulgate rules and regulations relating to the physical, mental, and moral fitness of any applicant for a position as a law enforcement officer, as long as those regulations do not lower the standards set forth in section 36-21-46 of the Code. Id. Section 36-21-46 of the Code relates to standards for applicants seeking to become law enforcement officers.

Because section 36-21-45(3) of the Code specifically authorizes the Commission to promulgate rules, as long as such rules do not lower the standards set out in section 36-21-46, it is the opinion of this Office that the Legislature intended to authorize the Commission to expand on the provisions set forth in section 36-21-46 as those standards related to physical, mental, and moral fitness. See also, opinion to Honorable Thomas W. Hall, Sheriff of Conecuh County, dated March 3, 1997, A.G. No. 97-00123 at 4. Whether the standards relate to the physical, mental, or moral fitness of a candidate is a factual determination that must be made by the Commission.

Generally, administrative rules and regulations must be consistent with the constitutional or statutory authority authorizing their promulgation, and a regulation operating to create a rule out of harmony with the statute is a mere nullity. Opinion to Honorable John W. Anderson, Executive Secretary, Alabama Peace Officers' Standards and Training Commission, dated April 19, 1996, A.G. No. 96-00187, citing Ex parte State Dep't of Human Resources, 548 So.2d 176, 178 (Ala. 1988). Thus, an administrative agency typically cannot usurp legislative powers or contravene a statute. Anderson at 2.

In the present matter, however, section 36-21-45(2) and (3) expressly authorize the Commission to expand upon the provisions of section 36-21-46 of the Code, as long as such rules do not lower the standards that are set forth in section 36-21-46. Thus, it is the opinion of this Office that, pursuant to section 36-21-45 of the Code, the Alabama Peace Officers' Standards and Training Commission may adopt rules and regulations that expand upon the standards set forth in section 36-21-46 of the Code to the extent such rules relate to the physical, mental, and moral fitness of a candidate as determined by the Commission.

CONCLUSION

The Alabama Peace Officers' Standards and Training Commission has the authority under section 36-21-45(2) and (3) of the Code to adopt rules and regulations that expand upon the standards set forth in section 36-21-46 of the Code relating to the physical, mental, and moral fitness of a candidate for the position of law enforcement officer as determined by the Commission.

I hope this opinion answers your question. If this Office can be of further assistance, please contact Monet Gaines of my staff.

Sincerely,

LUTHER STRANGE Attorney General

BRENDA F. SMITH Chief, Opinions Division