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In Legal Terms - Spring Issue 2003
Attorney General Issues Four Important
Opinions
With the legislative session
in full swing, our attention lately has been geared toward
what may become the law in the state in the next few months.
In the meantime, the attorney general's office continues
to provide opinions interpreting laws that are already
on the books. Recently, that office has issued several
opinions which directly affect Alabama counties in some
way.
The Omnibus Pay Act
There are two new opinions dealing
with the "Omnibus Pay Act", found at Code
of Alabama 1975, § 11-2A-1 et seq.
In Opinion No. 2003-076, the attorney
general held, as he has in the past, that local elected
officials are not entitled to an across-the-board or longevity
pay raise unless it is adopted at the time of the approval
of the county budget. (For an earlier opinion with the
same holding, see Opinion No. 2002-123). In this
instance, the county commission adopted its budget in
October, and later that month, approved a new employee
classification pay plan with job descriptions and performance
appraisals. In December, the commission adopted an across-the-board
cost of living increase and 1% longevity pay increase
under the new pay plan. While the county commission attempted
to include the elected officials in the longevity increase,
the attorney general held that the elected officials were
not entitled to either increase because Code of
Alabama 1975, § 11-2A-4 only authorizes increases
for local elected officials "that are granted to
county employees by the county commission at the time
of the approval of the county budget."
Opinion No. 2003-090, issued to Probate
Judge Phillip Jordan on March 4, 2003, addresses several
questions regarding the proper application of the Omnibus
Pay Act, and gives a fairly good overview of prior opinions
issued in regard to this act. The attorney general's office
again stated that local elected officials are entitled
to longevity pay if granted at the time of approval of
the budget, but also pointed out that it is applicable
only if uniformly available to all other county employees
meeting the same requirements. That office also noted
that the act specifically provides that no person holding
supernumerary office shall be entitled to any increases
in compensation or expenses as a result of any salary
adjustments provided for in the Act.
The Sheriff's Office and Jail
There are also two new opinions affecting
counties and the sheriff's office - both issued to Tuscaloosa
County Sheriff Ted Sexton.
Opinion No. 2003-096 corrects in
large part a problem related to dispensing prescriptions
to inmates in the county jail. In an opinion dated February
13, 2002, the attorney general held that jail personnel
who are not physicians, pharmacists, or registered or
licensed practical nurses, could not dispense or administer
medications in jails. (See Opinion No. 2002-138.)
In this latest opinion, the attorney general's office
revisited that issue, and acknowledged that it had "not
taken into consideration that the sheriff and/or jailer
have legal custody of the inmate and, therefore, are acting
as agent for the inmate with respect to the prescription
drugs." The attorney general has now held that the
sheriff or jailer, acting as agent for an inmate, may
deliver prescription drugs prepackaged by dosage to an
inmate when the drugs have been dispensed by a licensed
pharmacist. While this opinion may not completely cure
the problem created by Opinion No. 2002-138, it
certainly lessens the burden on counties and sheriffs
in their efforts to provide this necessary service to
the inmates in their legal custody.
In Opinion No. 2003-106, Sheriff
Sexton asked whether the joint powers act found at Code
of Alabama 1975, § 11-102-1 et seq.
is sufficient authority for sheriffs to enter into mutual
aid agreements with other sheriffs to assist each other
in responding to natural disasters or other possible crises.
As you may recall, this ACCA-supported legislation which
passed in 1998 is aimed at allowing counties and municipalities
to enter into agreements with each other to jointly exercise
powers or services each can exercise separately. The attorney
general held in Opinion No. 2003-106 that under
this act, counties, with the consent of sheriffs and with
sheriffs of the counties as parties, may enter into agreements
whereby sheriffs may assist offices in other counties.
In reaching this conclusion, the attorney general also
referenced Code of Alabama 1975, § 11-80-9,
which allows a county commission (and municipality) to
provide assistance in the form of funds, services, or
other aid to another municipality or county which has
been declared a disaster area.
As well noted by Sheriff Sexton in his question
to the attorney general, with the increase in homeland
defense and the loss of important personnel to active
duty, mutual aid agreements between counties and their
sheriff's offices can be an important and effective tool
in ensuring the protection and disaster response for citizens
in differing counties. However, it is important that the
attorney general made clear in this opinion that the county
commission must be a party to any "mutual aid agreement"
between sheriffs in differing counties. As noted by that
office, the county commission is the legislative body
for counties. Moreover, "the county commission appropriates
funds to the sheriff's office for the general operation
of the office."
This opinion illustrates an excellent example
of how the joint powers act was intended to work and why
it was important legislation to pass for the benefit of
counties and its citizens.
The Competitive Bid Law
Opinion No. 2003-098 reiterates
the long-standing policy of the Office of Examiners of
Public Accounts in regard to the purchase of "like
items" under the competitive bid law. Citing prior
opinions with the same holding, the attorney general's
office stated that the total amount of the unit price
of all items in a group purchase must be considered when
determining if the purchase is subject to the bid law.
"If two or more items of the same type or of a similar
type are to be purchased, and the total cost of the items
is [$7500] or more, the purchase is subject to competitive
bidding, although the unit price of each item is less
than [$7500]." This position is based in part on
Code of Alabama 1975, § 41-16-54(d),
which provides that no purchase or contract exceeding
$7500 shall be divided into parts to avoid the competitive
bid law. The attorney general concluded that, "When
it is known or contemplated that like item purchases .
. . involving $7500 or more will be made during the fiscal
year, these items must be procured through competitive
bid."
The attorney general pointed out in this
opinion that each purchase of items must be reviewed based
on its unique factual situation. Therefore, where the
purchase of like items not contemplated due to unforeseen
circumstances exceeds $7500 when taken with a prior purchase,
there is not a violation of the bid law. However, if the
governmental entity knew that the quantity purchased was
inadequate and the total needs for the year would exceed
$7500, failure to bid the items would be a violation of
§ 41-16-54(d).
The attorney general also noted in this
opinion that items may not be divided by district, division,
or otherwise to avoid the statutory requirement for bidding.
This supports the consistent position of the Examiners
Office that, in reviewing for the $7500 threshold for
bidding, the county must look at purchases in all
county offices, and cannot divide purchases by county
commission district or by separate county offices or divisions.
Military Duty of Elected Officials
In Opinion No. 2003-097, the
attorney general's office provides an overview of the
Code provisions addressing temporary absence from office
when a public official is called into active military
duty (Code of Alabama 1975, § 36-8-1 et
seq.). In this instance, the Governor appoints
a "temporary official" to serve in the office,
"who shall have all of the powers, privileges, and
duties regularly exercised by the official in whose place
he is acting." The departing official may recommend
the name of a person to fill the vacancy. The temporary
replacement receives the same compensation as the official
in whose place he or she is serving. However, the "regularly
elected official" is not entitled to compensation
during his or her absence.
The temporary official serves while the
"regular official" is absent and in service,
and for 30 days from the date the Governor receives written
notice that the official intends to return and resume
the duties of his or her office. When this notice is received,
the Governor shall notify the temporary official that
his or her service will automatically terminate on the
date the regularly elected official returns to civilian
life.
The opinions discussed in this article can
be downloaded from the attorney general's web site --
www.ago.state.al.us.
You may also contact me in the ACCA office for a copy.
In addition, if you have any questions about any of these
opinions or others issued recently by that office, please
feel free to give me a call.
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