In Legal Terms
- Volume 51, Number 6 - 2007
Public employees in an election year...
With the primary election just ahead, ACCA staff is receiving questions about the “do’s and don’ts” for public employees participating in political activities – either as a candidate or supporter. This seems like an excellent time to provide counties with a refresher course on some of these major issues.
Below are excerpts from a presentation I gave several years ago on this issue, which may help to answer many of the common questions.
RIGHT TO PARTICIPATE
Code of Alabama 1975, § 17-1-4(a)(1) and (2) authorizes county and municipal
employees to participate in political activities to the same extent as any other citizen of the state. This includes endorsing candidates and contributing to campaigns. However, a public official or public employee may not unlawfully influence or coerce other employees to support any candidate. See, e.g., AG’s Opinion # 93-033 and # 86-280.
Additionally, § 17-1-4(a) allows employees the right to join local political organizations and political parties, and to publicly support issues, circulate petitions, and contribute freely to those of his or her choosing. Law enforcement officers and firefighters may also engage in political activities, provided they are off duty, out of uniform, and acting as a private citizen.
LIMITATIONS
There are, however, some restrictions on political activities. For example, Code of Alabama 1975, § 17-17-4 states that no person shall attempt to use his or her official authority or position for the purpose of influencing the vote or political action of any person. Violation of this provision is a felony. And, § 17-17-5 prohibits a public employee from using public funds, property, or time for political activities.
Therefore, the employee must be on approved leave or on personal time to engage in any political action. It is also unlawful for an employee to solicit any type of political campaign contributions from other employees who work in a subordinate capacity or to coerce any subordinate employee to work in any capacity in any political campaign or cause.
In AG’s Opinion # 98-211, that office held that common or public areas of public buildings or grounds could be used for press conferences or advertisements provided all candidates had equal access to the property. Public employees should refrain from any campaigning in a place or manner that may be viewed as providing some unfair advantage due to access to public property or equipment.(1)
RUNNING FOR OFFICE
The most difficult portion of § 17-1-4 for county employees is the requirement that they take unpaid or annual leave to run for county office. Any employee who violates this provision forfeits his or her employment.
Under this section, the employee must be on leave from the date he or she qualifies until:
1. The election results are certified,
2. He or she is no longer a candidate, or
3. There are no other candidates.
This means that if the employee wins the primary, but has opposition in the general election, he or she must remain on leave until the general election results are certified. If he or she only has opposition in the general election, he or she must still take leave from the date of qualifying until the general election results are certified.
If the employee loses the primary, he or she may return to work when the primary election results are certified. Furthermore, if the employee wins the primary and has no general election opposition, he or she may return to work after the primary election results are certified.(2)
This prohibition only applies where a county or municipal employee seeks an office with the governmental entity for which he or she works. Therefore, a county employee may run for city council or the state legislature without taking leave, and in fact, can run for county office in another county.
In the case of county government where employees in other county offices, such as the probate judge’s office or revenue department work for (and may choose to run for) other local elected offices, this can be very confusing.
The attorney general has issued several opinions on this subject and, in general, has held that if a county employee works in any county office, he or she must take leave to run for county office. See, e.g., AG’s Opinion # 2002-156. Employees of a separate entity, such as a water authority, are not county employees and not required to take leave to run for a county office. See, AG’s Opinion # 2003-193 and # 97-014.
State and federal case law have consistently held that a deputy sheriff or jailer is not a county employee. Therefore, he or she is not required to take leave to run for county office. See, e.g., AG’s Opinion # 2002-016. However, other employees in the sheriff’s office are county employees and must take leave. See, AG’s Opinion # 2002-016.
While the employee is required to be on annual or unpaid leave during the period he or she is a candidate for office, he or she may continue to receive health insurance benefits, provided the governmental entity has a personnel policy allowing employees on unpaid leave to continue such benefits. However, the employee must pay the premium. See, AG’s Opinion # 98-090.
CONFLICT WITH OTHER LAW/ PERSONNEL POLICY
Code of Alabama 1975, § 17-1-4 is a state general law. Therefore, any local laws or personnel policies in conflict with this law are invalid and unenforceable. The attorney general has issued several opinions to this effect.
For example, in AG’s Opinion # 98-159, that office held that a municipal personnel policy prohibiting employees from taking an active part in any political campaign and from distributing campaign literature was in conflict with state law and unenforceable.
In another opinion, they held that a local act prohibiting county employees from running for political office unless on unpaid leave was in conflict with and superseded by the state general law, which only required leave to run for a county office. See, AG’s Opinion # 2000-153.
(1) This would also be a violation of the Ethics Law (See Code of Alabama 1975, § 36-25-3) and Alabama’s Constitution (Section 94 and Amendment No. 112).
(2) For a good discussion of these requirements, see AG’s Opinion # 96-200.
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