In Legal Terms - January/February 2000

County Employees Need Answers Before Seeking Office

As always in an election year, the ACCA staff is beginning to get a lot of questions concerning the dos and don'ts of county employees running for public office. Therefore, this seems like a good time to revisit Alabama's law on this subject.

In 1995, the Alabama Legislature amended Code of Alabama 1975, § 17-1-7(d) to provide that a county employee who qualifies to seek a political office with the governmental entity with which he or she is employed must take an unpaid leave of absence, or use accrued overtime or vacation time during the campaign. Under the law, the employee must be on leave from the date he or she qualifies to run for office until (1) the date on which the election results are certified, (2) the employee is no longer a candidate, or (3) there are no other candidates on the ballot. The law prescribes that any employee who violates this provision "shall forfeit his or her employment position".

Section 17-1-7(d) does not apply to elected officials. It also does not apply where a county employee is running for state or federal office.

There are several helpful attorney general's opinions clarifying what a county employee and a county office are for the purposes of this statutory requirement. In AG's Opinion # 96-200, the attorney general's office held that sheriff's deputies are state employees for the purposes of § 17-1-7(d) and, therefore, are not subject to its provisions.1 Additionally, since the county commission is not considered the "employing authority" of a jailer, he or she is also not subject to the act. On the other hand, that opinion states that dispatchers and clerical employees of the sheriff's office are generally considered county employees with the county commission as the employing authority. Therefore, those employees are subject to the requirements of the law. A county appraiser is a county employee and must take leave if seeking election to the county commission. See, AG's Opinion #2000-10. However, a racing commission created by local law is considered a "separate entity from the county government". Therefore, a county employee seeking election to that commission is not required to take a leave of absence. See, AG's Opinion # 97-14.

AG's Opinion # 96-200, referenced above, also addresses the period of time in which the employee must be on leave from his or her job. This opinion states that under the law, a county employee who wins the primary is not allowed to return to work following the primary, unless he or she is the only candidate on the ballot for that office. The law states that the employee must be on leave "until the date on which the election results are certified", and according to the attorney general, this includes the primary, any run-off, and the general election.

As noted above, § 17-1-7(d) states that any employee violating its requirements forfeits his employment. When asked how the county governing body should enforce the law's requirements, the attorney general stated that "Once a person qualifies as a candidate but refuses to take leave, the county commission has no authority to continue to pay such employee." See, AG's Opinion #96-200. In essence, the employee is terminated by operation of law, and while he would be entitled to accrued leave and sick pay under the county's personnel rules, once the leave is exhausted, the county is to remove the person from the payroll.

The issue of health insurance has also been addressed by the attorney general's office in relation to proper application of § 17-1-7(d). In AG's Opinion # 98-90, that office held that a county could continue to provide health insurance benefits to an employee on leave during his or her campaign for county office, provided the employee and not the county paid the premiums. The attorney general noted that payment of such premiums by an employer is viewed as compensation, but that a provision of a personnel policy allowing a county employee to continue to receive such benefits during unpaid leave as long as the employee pays the cost of the premium "is consistent with the requirements of section 17-1-7(d) that the employee take an 'unpaid' leave of absence."

In addition to paragraph (d) of § 17-1-7, county employees should also keep the remainder of that Code section in mind during election time. Both state and federal law protect a government employee's right to participate in political activities. However, no such employee may attempt to use his authority or position to influence the vote or political action of any person, and violation of this prohibition is a felony punishable by fine of $10,000 or two years imprisonment. Furthermore, a governmental employee cannot use state, county, or city funds, property, or time for any political activities. In other words, a county employee involved in any political campaign, whether his or her own or that of another candidate, cannot use county property (i.e. phones, copiers, e-mail) for the campaign activities, and cannot campaign unless he or she is on leave.

The penalties for violating Alabama's election laws are severe, and therefore, all county employees (and officials)should be careful to make sure their actions are in compliance. There are many attorney general's opinions on the issues mentioned in this article, and there are some opinions from the Ethics Commission. If there is any concern about proposed actions, please call the ACCA office or consult with your county attorney. You can also find relevant opinions on the worldwide web: for AG's opinions, go to www.ago.state.al.us and for Ethics Opinions, go to www.ethics.alalinc.net.

1 However, if the deputy is subject to the rules and regulations of a county civil service board pursuant to a local law, he or she would be subject to any restrictions regarding political activities and leave. See, AG’s Opinion #2000-92.