Alabama Attorney General Opinion 1979-0155

CHARLES A. GRADDICK ATTORNEY GENERAL STATE OF ALABAMA OFFICE OF THE ATTORNEY GENERAL 00155~ LEE L. WALE DEPUTY ATTORNEY GENERAL WILLIAM M. SEKURS. JR. EXECUTIVE ASSISTANT W S. TURNER CHIEF ASSISTANT ATTORNEY GENERAL JANIE NOBLES ADMINISTRATIVE ASSISTANT April 2, 1979 ADMINISTRATIVE BUILDING DI NORTH UNION STREET MONTGOMERY. ALABAMA Sal le AREA 114151. 4141110 Sheriff Roy C. Snead, Jr. Calhoun County Courthouse Anniston, Alabama 36201 Sheriffs-Conflict of Interest Sheriff cannot designate wife as guard to receive guard allowance on trips outside county. Dear Sheriff Snead: Your request of February 9, 1979 poses the following questions: "1. If the wife of the sheriff or deputy accompany their husband on trip for removal of prisoner from another county or state, can that wife be designated as guard for such trip? If so, should the $8.00 per day guard allowance be paid directly to the wife? "2. Also, if a regular salaried deputy with Sheriff's Department transfer prisoner from another county or state while on regular off duty days, with transfer made in county vehicle, is he entitled to the $8.00 per day guard allowance? "3. We have been remitting all guard allowance to the Calhoun County Commission at the end of each month, and we would like an early opinion as to whether or not we should continue to do so, or should the guard, as above inquiry, be retained?" Sheriff Roy C. Snead, Jr. April 2, 1979 Page Two Your first question is to be answered in the negative. There is no authority for a sheriff or deputy to designate his wife as a "guard' and thereby permit her to receive pay- ment when accompanying her husband on a trip for transporting a prisoner from another county or state. The employment of the wife of a sheriff or deputy for guard duty when trans- porting prisoners also might raise ethical questions under the State Ethics Law, especially those provisions found at Code of Alabama 1975, Section 36-25-5 and Section 26-25-7. The answer to your question no. 2 is in the affirmative. The deputy in your department while engaged as guard in prisoner transfer cases is entitled to $8.00 per day guard allowance whether on regular or off-duty days. The provision of Act #538, Acts of Alabama 1978, page 595, which amends Code of Alabama 1975, §36-22-16 is stated as follows: "(b) Such salary shall be in lieu of all fees, compensation, allowances, per- centages, charges and costs, except as otherwise provided by law. The sheriff and his deputies shall, however, be en- titled to collect and retain such mileage and expense allowances as may be payable according to law for returning or transferring prisoners and insane persons to or from points outside the county." It is the further opinion of this office that the guard fee of $8.00 per day as herein discussed is payable to the deputy performing the service pursuant to Code of Alabama 1975, §§15-9-62 and 15-10-73 and also §14-6-10. The answer to your question no. 3 is contained in the above responses and the remittance of the $8.00 guard allowance should be made to the guard performing the service. Sheriff Roy C. Snead, Jr. April 2, 1979 Page Three In the event you desire any further information in the premises, please advise. Sincerely, CHARLES A. GRADDICK Attorney General by- WILLIAM T. STEPHE Assistant Attorney General WTS/sb