Alabama Advisory Opinions May 19, 2022: AGO 2022-036

Advisory Opinion Text

Honorable Johnnie B. Washington

Mayor

City of Greensboro

1101 Mainstreet

Greensboro, Alabama 36744

Municipalities – Municipal Employees - Candidates - Political Activities - Hale County

A city's police chief does not have to resign in order to campaign for the office of county sheriff.

A city's police chief does not have to take administrative leave during his or her campaign for the office of county sheriff, but he or she may only participate in political activity when off duty, out of uniform, and acting as a private citizen.

Dear Mayor Washington:

This opinion of the Attorney General is issued in response to your request on behalf of the City of Greensboro ("City").

QUESTION

Does the City's Police Chief have to resign or take administrative leave to campaign for the office of Sheriff of Hale County?

FACTS AND ANALYSIS

Your request states that the City's Police Chief qualified to run for the office of Sheriff of Hale County. You additionally state that the Police Chief has not asked for administrative leave to campaign, and that the Police Chief is subject to the city's personnel policy which has provisions relating to participation in political activities. You ask whether the Police Chief is required to resign or take administrative leave while campaigning for the office of county sheriff.

Section 17-1-4 of the Code of Alabama governs the political conduct of city, county, and state employees. Ala. Code § 17-1-4 (2006). Subsections (a)(1) and (b) deal specifically with city employees, and subsection (c) addresses law enforcement officers. Ala. Code § 17-1-4(a)(1), (b), (c) (2006). Each subsection will be addressed in turn.

Section 17-l-4(a)(l) of the Code states as follows:

(a)(1) No person in the employment of any city, whether classified or unclassified, shall be denied the right to participate in city, county, or 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 or her choosing.

Ala. Code § 17-l-4(a)(l) (2006). Section 17-l-4(a)(l) of the Code states unequivocally that a person in the employment of any city shall have the same right to participate in political activities at the city, county, or state levels as any other citizen of the State of Alabama. Ala. Code § 17-1-4(a)(1) (2006). "To participate in" an election includes the right to run for political office. Opinion to Honorable Allen C. Jones, Attorney, Pike County Commission, dated May 18, 2000, A.G. No. 2000-149, pg. 4. (clarified on other grounds by Opinion to Honorable Lesley Vance, Member, House of Representatives, dated Feb. 28, 2002, A.G. No. 2002-156.). Thus, as a City employee, the Police Chief may participate in political activities, including campaigning for the office of county sheriff.

Section 17-l-4(b) of the Code, however, provides a specific exception to the general rule when the employee is seeking political office with his or her governmental entity. Section 17-l-4(b) of the Code states as follows:

(b) Notwithstanding Section 17-17-5, any employee of a county or a city, whether in the classified or unclassified service, who qualifies to seek a political office with the governmental entity with which he or she is employed, shall be required to take an unpaid leave of absence from his or her employment, or use accrued overtime leave, or use accrued vacation time with the county or city from the date he or she qualifies to run for office until the date on which the election results are certified or the employee is no longer a candidate or there are no other candidates on the ballot...

Ala. Code § 17-l-4(b) (2006) (emphasis added).

Thus, if a city employee qualifies to run for political office with the same governmental entity with which he or she is employed, then that employee must take unpaid leave, use overtime leave, or vacation time from the date he or she qualifies until the date the election results are certified (unless the employee is no longer a candidate or there are no other candidates on the ballot). Ala. Code § 17-l-4(b) (2006). Here, the Police Chief qualified to seek a county political office, and, therefore, section 17-1 -4(b) of the Code does not apply. See also, Opinion to Honorable Robert A. Wills, Attorney at Law, dated Dec. 7, 1989, A.G. No. 90-00066 (under former Code section 17-1-7, an assistant police chief may run for the office of sheriff without taking a leave of absence.). The Police Chief, therefore, is not required to take unpaid leave, use overtime leave, or vacation time for the duration of his or her campaign for the office of county sheriff.

A city employee may not, however, participate in political activities during normal working hours. See, Opinion to Honorable William G. Hause, Hardwick, Hause, Segrest & Northcutt, dated Mar. 19, 1985, A.G. No. 85-00265, pg. 2 ("An employee of the city may not campaign or otherwise participate in political activities during normal working hours."). Your request states that although the Police Chief is on call twenty-four hours per day, seven days per week, the normal work hours are from 8:00 a.m. until 5:00 p.m. Perhaps recognizing the inherent difficulty in shedding the role of police chief on an hourly basis, the Legislature provides additional protections for law enforcement officers that participate in political activities.

Section 17-1-4(c) of the Code states as follows:

(c) When off duty, out of uniform, and acting as a private citizen, no law enforcement officer, firefighter, or peace officer shall be prohibited from engaging in city, county, or state political activity or denied the right to refrain from engaging in political activity so long as there is compliance with this section.

Ala. Code § 17-l-4(c) (2006) (emphasis added). The plain language of section 17-1-4(c) of the Code protects the right of law enforcement officers to participate in political activities when off duty, out of uniform, and acting as a private citizen. Thus, regardless of the time of day, if the Police Chief is off duty, out of uniform, and acting as a private citizen, he or she is permitted to campaign for the office of county sheriff.

Taken together, sections 17-l-4(a)(l), (b), and (c) of the Code permit the Police Chief to run for the office of county sheriff without taking administrative leave. Any participation in political activities, however, must occur while the Police Chief is off duty, out of uniform, and acting as a private citizen.

In addition to section 17-1-4 of the Code, City employees are subject to the City's personnel policy. Two provisions of the City's personnel policy directly address participation in political activities by City employees as follows:

RULE II - GENERAL PROVISIONS .

* * *

2.07 PARTICIPATION RIGHTS .

No employee will be denied the right to participate in county, city, state, and federal political activities on their own time, except as limited by federal or state law. The City expects the employees to avoid public political activities. Neither their position nor City time should be used for political purposes. The employee may express their political opinions privately and the City encourages employees to vote for candidates of their choice. City employees, except incumbent elected officials, should resign if running for a partisan office.

and

RULE XVI - POLITICAL ACTIVITES

The City expects City employees to avoid political activities. Neither their position nor City time should be used for political purposes. The employee may express his/her political opinions privately. City employees, except incumbent elected officials, should resign if running for a partisan office.

The City of Greensboro Personnel Policies and Procedures, pgs. 15, 94 (Revised 2017) (emphasis added).

Both of the above-cited provisions state that "City employees, except incumbent elected officials, should resign if running for a partisan office." Id. (emphasis added). Although the provisions suggest resignation, the decision to resign is left up to the City employee running for a partisan office. To hold otherwise would violate the protection to participate in political activities provided to city employees in section 17-1-4(a)(1) of the Code and, specifically, for law enforcement officers at subsection (c) of the Code. Ala. Code § 17-l-4(a)(l), (c) (2006). Evidence that these provisions are permissive is found in the City's use of the words "should" and "resign."

"Should" is generally considered permissive, more of a suggestion, as opposed to words like "shall" and "must" which are often interpreted as mandatory. See, Lambert v. Austin Indus., 544 F.3d 1192, 1196-97 (11 Cir. 2008) (interpreting the word "should" as permissive, not mandatory.); Hornsby v. Sessions, 703 So. 2d 932, 939 (Ala. 1997) ("The word "shall" is considered presumptively mandatory unless something in the character of the provision being construed requires that it be considered differently."). Also, the word "resign" means "[t]o formally announce one's decision to leave a job or an organization." Resign, Black's Law Dictionary (10 ed. 2014). Although a City can terminate a City employee, only an employee can resign. The use of the words "should" and "resign," therefore, indicate that the option to resign is not mandatory and is left to the discretion of the City employee. Thus, whether or not the Police Chief resigns when campaigning for a partisan office is a decision that the Police Chief, not the City, must make.

CONCLUSION

A city's police chief does not have to resign in order to campaign for the office of county sheriff.

A city's police chief does not have to take administrative leave during his or her campaign for the office of county sheriff, but he or she may only participate in political activity when off duty, out of uniform, and acting as a private citizen.

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

Sincerely,

STEVE MARSHALL Attorney General

BEN BAXLEY Chief, Opinions Division