Alabama Advisory Opinions December 23, 2016: AGO 2017-012 (December 23, 2016)

Advisory Opinion Text

Honorable James Underwood

Walker County Sheriff

2001 2nd Avenue

Jasper, Alabama 35501

Sheriffs - Deputies - Civil Service System Personnel Boards - Employees, Employers, Employment

Both the Chief Deputy Sheriff and part-time employees of the Walker County Sheriff's Office are subject to the authority of the Civil Service Board of Walker County, and their positions must be filled in accordance with the Board's rules and regulations.

Dear Sheriff Underwood: This opinion of the Attorney General is issued in response to your request.

QUESTION 1

Is the position of Chief Deputy Sheriff of Walker County subject to the authority of the Civil Service Board of Walker County, and, if that position becomes vacant, can the Sheriff of Walker County hire a new Chief Deputy who is not currently employed with the sheriff's office?

FACTS AND ANALYSIS

The Civil Service Board of Walker County ("Board") was created by Act No. 200 of the 1969 Alabama Acts. The Board "makes rules and regulations governing examinations, eligible registers, appointments, transfers, salaries, promotions, demotions, annual and sick leave" that apply to all county employees not specifically exempted. 1969 Ala. Acts No. 200, 264-265. On January 6, 1999, amendment number 655 to the Alabama Constitution was proclaimed ratified. Amendment 655 provides: "Effective the first day of the sixth month after ratification of the amendment, all employees of the Office of the Sheriff of Walker County are subject to the authority of the Walker County Civil Service Board, or its successor." Ala. Const. Local Amends., Walker County § 6 (amend. 655) (emphasis added). This Office has previously opined that, pursuant to Amendment 655, deputy sheriffs employed by the Walker County Sheriff's Office are subject to the Board's rules and regulations. Opinion to Honorable John Mark Tirey, Sheriff, Walker County, and Honorable C. Scott Johnson, Attorney, Walker County Commission, dated February 23, 2000, A.G. No. 2000-092. Thus, the Chief Deputy, as an employee of the Walker County Sheriff's Office, is subject to the authority of the Board.

According to the Board's rules and regulations, whenever a vacancy in a position under the Board's authority exists, the vacancy shall be filled in the following order: 1) from the lay-off register, 2) by in-service promotion or transfer, 3) from the existing eligible register, and 4) by application on file with the Board. Civil Service Board of Walker County Rules and Regulations, Rule 6 - Employment, Section 7 - Procedures for Filing Vacancies (2010). If there are no eligible candidates for the position of Chief Deputy Sheriff from the lay-off register, then the vacancy must be filled by in-service promotion (i.e., from within the office) or transfer. Id. The only variance available from in-service promotion or transfer is when the Board has reason to believe that a better qualified candidate is available from outside the county service. Id. at Section 10 - Procedures for In-Service Promotions/Transfers. Both hiring from within the office and from outside of the county service requires selection from the hiring authority and approval from the Board. Id. The "hiring authority" means "the official or County Commission having authority to fill vacancies in a specified department or office." Id. at Rule 2 - Definition.

The position of Chief Deputy can only be filled using the hiring criteria established by the Board. Once the lay-off register is exhausted, to hire a candidate for the position of Chief Deputy from outside of the Sheriff's office requires the Board to believe that a better qualified candidate is available outside of the county service.

CONCLUSION

The position of Chief Deputy Sheriff of Walker County is subject to the authority of the Civil Service Board of Walker County, and the position must be filled in accordance with the Board's rules and regulations.

QUESTION 2

Are part-time employees of the Walker County Sheriff's Office subject to the authority of the Civil Service Board of Walker County?

FACTS AND ANALYSIS

Your request states that the Board requires applications for employment to be on file for thirty days prior to filling a part-time position. You expressed concern that when a vacancy for a part-time position occurs in the sheriff's office this waiting period often requires other employees within the sheriff's office to work overtime or understaffed.

Amendment 655 placed all employees of the Walker County Sheriff's Office within the Board's purview. Ala. Const. Local Amends., Walker County § 6 (amend. 655). The Board defines a part-time employee as "an employee who works on a regular basis but does not work in excess of thirty-two hours per week. Such employee is hired from an application on file with the board and is not subject to examination. Part-time employees enjoy no status under the act." Civil Service Board of Walker County Rules and Regulations, Rule 2 - Definition (2010) (emphasis added). Lack of status under the act does not remove part-time employees from the Board's authority, but instead prevents part-time employees from acquiring a property right to full-time status. See, opinion to Honorable G. Rod Giddens, Attorney, Civil Service Board of the City of Talladega, dated October 31, 2001, A.G. No. 2002-047 (addressing the status of temporary employees under a civil service board).

When a part-time employee position is vacant the Board follows the following procedure to fill the position:

All applicants for seasonal, temporary, part-time, public service worker and custodial positions must file their applications for employment with the Civil Service Board, and the hiring authority must make their selection from the Civil Service Board list of applications that have been on file for 30 days. Applications shall expire 2 years after being filed with the Board. If no applications meet the 30 day requirement, the Board may approve special hiring permission if deemed necessary.

Civil Service Board of Walker County Rules and Regulations, Rule 6 -Employment, Section 1 - Applications (emphasis added).

The Board requires that the hiring authority hire part-time employees from a list of applicants that have been on file for at least 30 days. Rule 6, section 1 allows for the Board to vary from this procedure if no applicants have been on file for that time and it is deemed necessary. Thus, if hardships associated with filling part-time positions arise in this circumstance, the hiring authority may seek special hiring permission from the Board.

CONCLUSION

Part-time employees of the Walker County Sheriff's Office are subject to the authority of the Civil Service Board of Walker County, and open positions must be filled in accordance with the Board's rules and regulations.

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

Sincerely,

LUTHER STRANGE, Attorney General.

G. WARD BEESON, III Chief, Opinions Section