Alabama Advisory Opinions June 08, 1993: AGO 93-00230 (June 08, 1993)

Advisory Opinion Text

Honorable Earlene McDaniel

Presiding Officer

Town of Nauvoo

P.O. Box 186

Nauvoo, AL 35578

Municipalities - City Councils - Compensation -Office of Profit - Civil Service Board

A member of the Town Council of Nauvoo cannot serve on the Walker County Civil Service Board, although he or she is not *entitled to compensation as a councilmember.

Dear Ms. McDaniel:

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

QUESTION

May a member of the Town Council of Nauvoo, who receives no compensation or profit in that position, serve on the Walker County Civil Service Board, for which compensation is given, and still remain a councilmember?

FACTS, LAW AND ANALYSIS

Act No. 80-673, Acts of Alabama 1980, p. 351 amended certain provisions of Act No. 200, Acts of Alabama 1969, p. 263 and provides for members of the Walker County Civil Service Board. Section 5, as amended, provides:

* * *

"No member of the Board shall hold any office of profit under a city, county, or the State of Alabama. ..."

It further provides:

* * *

"Any member of the Board who becomes a candidate for, or is appointed or elected to another public office vacates his office as a member of the Board."

A member of a city council, who is not entitled to compensation, does not hold an office of profit. Quarterly Report of the Attorney General, Vol. 103, p. 8. Therefore, under the first quoted provision, it would appear that the councilmember could serve on the civil service board.

It must be noted that the first quoted provision of Section 5, as amended by Act No. 80-673, refers to an "office of profit," and states that no one serving on the civil service board can hold any office of profit, whereas the second quoted provision refers to a "public office," and prohibits a member of the board from being a candidate for, or being appointed or elected to another "public office."

An office of profit is a public office. Alexander v. State , 274 Ala. 441, 150 So.2d 204 (1963). An argument can be made that a public office is not always an office of profit, i.e., when the officeholder is not entitled to compensation for serving in that office. However, I do not think that is the case in the construction of Act No. 80-673.

The fundamental rule of statutory construction is to ascertain and give effect to the intent of the Legislature. If possible, the intent of the Legislature is to be gathered from the language of the statute. However, if the statute is ambiguous or uncertain, conditions that might arise under the provisions of the statute may be considered, and the results may be examined that will flow from giving the language in question one particular meaning rather than another. Volkswagen of America, Inc. v. Dillard , 579 So.2d 1301 (Ala. 1991).

It is indicated that it was the intent of the framers of Act No. 80-673 that no individual, who held another state, county, or city office, was to serve on the Walker County Civil Service Board. The statute forbids one who holds any office of profit from serving on the board, and states that when one becomes a candidate for, or is appointed or elected to another public office, his position on the board is vacated. The distinction, if any, between "office of profit" and "public office" is of no effect in this case. It would be an unreasonable interpretation of the statute that the councilmember, who does not technically hold an office of profit because he or she receives no compensation, is to be allowed to serve on the civil service board, but when the councilmember becomes a candidate for a subsequent term on the town council, he or she must vacate the position on the civil service board.

CONCLUSION

A member of the Town Council of Nauvoo cannot serve on the Walker County Civil Service Board, although he or she is not entitled to compensation as a councilmember.

I hope this sufficiently answers your question. 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.