Alabama Advisory Opinions February 21, 1992: AGO 92-00175 (February 21, 1992)

Advisory Opinion Text

THIS OPINION HAS BEEN REVERSED BY THE OPINION TO HONORABLE TYLER RODEN, SHERIFF OF CULLMAN COUNTY, DATED 3-31-98, A.G. NO. 98-00121.

Honorable Charles D. Langford

Member, Alabama State Senate

26th District 918 East Grove Street

Montgomery, AL 36104

Deputy Sheriffs - County Commissions - Political Activities - Candidates

1. Unless it is prohibited by a personnel rule or regulation already in existence, a deputy sheriff in Barbour County may be a candidate for county commissioner without having to resign his position.

2. An individual cannot simultaneously serve as a deputy sheriff and as a county commissioner.

Dear Senator Langford:

This opinion is issued in response to your request for an opinion from the Attorney General.

QUESTION I

Is a deputy sheriff eligible to be a candidate for county commissioner, or must he resign his position in order to become a candidate for county commissioner?

FACTS, LAW AND ANALYSIS

Code of Alabama 1975, § 17-1-7 concerns the right of city, county, and state employees to participate in political activities. It states regarding county employees:

" (2) No person in the employment of any county, whether classified or unclassified, shall be denied the right to participate in city and 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 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 choosing."

The office has concluded on previous occasions that the above provisions do not prohibit a county employee from seeking a county office. However, a local civil service law, merit system law, or personnel rule or regulation may prohibit a county employee from seeking county office. Opinions of the Attorney General to Honorable Clarence Waters, Judge of Probate, Clarke County, dated May 25, 1990, and to Honorable Mike Blakely, Sheriff, Limestone County, dated April 15, 1986.

You have informed me that the question specifically pertains to a deputy sheriff in Barbour County. My research reveals that there is no state or local law establishing a merit system in Barbour County, and there is no state or local law concerning a deputy sheriff being a candidate for elective office in that county. Therefore, unless it is prohibited by a personnel rule or regulation already in existence, a deputy sheriff in Barbour County may be a candidate for county commissioner without having to resign his position.

It must be stated that a county employee seeking a county office cannot utilize any time, equipment, or funds of the county in order to further his political activities. Opinion of the Attorney General to Mr. Robert (Booley) Hitt, Chairman, Etowah County Commission, dated February 13, 1986.

It is incumbent upon the county to address this issue and develop a policy governing political activities by county employees in the future.

Conclusion

Unless it is prohibited by a personnel rule or regulation already in existence, a deputy sheriff in Barbour County may be a candidate for county commissioner without having to resign his position.

QUESTION II

If a deputy sheriff is not required by law to resign his position in order to become a candidate for the county commission, would the deputy sheriff be required to give up his position as a deputy if he is elected to the county commission - as a part-time commissioner?

FACTS, LAW AND ANALYSIS

Section 280 of the Constitution of Alabama, 1901 prohibits an individual from holding two offices of profit simultaneously. A county commissioner holds an office of profit. Opinion of the Attorney General to Honorable Doug valeska, District Attorney, Houston and Henry Counties, dated May 17, 1990. A deputy sheriff does not hold an office of profit. Opinion of the Attorney General to Honorable Frank "Butch" Ellis, Jr., State Senator, 14th District, dated September 25, 1984. Therefore, there is no violation of Section 280 if an individual serves as a county commissioner while employed as a deputy sheriff.

However, the Attorney General has previously concluded that an individual cannot be an employee of the county and serve as a county commissioner. Opinion of the Attorney General to Honorable William M. Branch, Probate Judge, Greene county, dated September 12, 1980. In the opinion to Judge Branch, the Attorney General concluded that there would be a great potential for a conflict of interest in violation of code of Alabama 1975, § 13A-10-62 and § 41-16-60 if an individual held the office of county commissioner and continued to be employed by that body as a county employee.

Section 13A-10-62 states in pertinent part:

"(a) A public servant commits the crime of failing to disclose a conflict of interest if he exercises any substantial discretionary function in connection with a government contract, purchase, payment or other pecuniary transaction without advance public disclosure of a known potential conflicting interest in the transaction."

Section 41-16-60 provides:

"No member or officer of . . . the county commissions . . . shall be financially interested or have any personal beneficial interest, either directly or indirectly, in the purchase of or contract for any personal property or contractual service, nor shall any person willfully make any purchase or award any contract in violation of the provisions of this article."

Furthermore, for a deputy sheriff to also serve as a county commissioner would be in violation of the common law prohibition against the holding of incompatible and inconsistent offices. The Supreme Court of Alabama in Scott v. Strobach . 49 Ala. 477 (1873) stated:

"... Incompatibility of offices existed at common law, when from the nature of the offices—the respective duties they imposed, or the relation they bore to each other—or pure considerations of public policy, there was a manifest impropriety in one incumbent retaining both. ..."

CONCLUSION

An individual cannot simultaneously serve as a deputy sheriff and as a county commissioner.

I hope this sufficiently answers your questions. If our office can be of further assistance, please do not hesitate to contact us.

Sincerely,

JIMMY EVANS Attorney General

JAMES R. SOLOMON, JR. Chief, Opinions Division