Alabama Attorney General Opinion 1979-0082

OFFICE OF THE ATTORNEY GENERAL LEE L. HALE OT PV ty AT TORNI.., GENERAL WILL! M M. BENVNs. JR EXECUTIVE ASSISTANT 5 TURNER CHIEF ASSISTANT ATTORNEY GENERAL JANIENOBLES • OMINISTRATIVE ASSISTANT CHARLES A. GRADDICK ATTORNEY GENERAL STATE OF ALABAMA SEP 27 1919 79_ 000g, ADMIN. VC BUILDING CO NORTH UNION STREET MONTGOMERY. ALABAMA 36130 AREA (2051. 1344150 Honorable Melvin Stephens Sheriff, Sumter County Sumter County Courthouse Livingston, Alabama Counties - Sheriffs - Personnel Sheriff may appoint deputies. The number and salaries of the deputies employed is set by county commission. Dear Sheriff Stephens: Reference is made to your request for an opinion from the Attorney General concerning the hiring of deputy sheriffs and radio dispatchers by the Sheriff of Sumter County. You posed the following question: "Title 36 Chapter 22 Section 18 of the 1975 Code of Alabama states as follows: 'The County Commission shall also furnish the Sheriff with the necessary quarters, books, stationery, office equipment, supplies, postage and other conveniences and equipment including automobiles and Honorable Melvin Stephens Page Two necessary repairs, maintenance and all expenses incidental thereto, and are reasonably needed for the proper and efficient conduct of the affairs of the Sheriff's office.' "I respectfully request an opinion as to whether or not the above stated title, chapter and section means that the Sumter County Commission shall furnish or shall allow the Sheriff of Sumter County to employ a sufficient number of deputy sheriffs and radio dispatchers as are necessary and reasonably needed for the proper and efficient conduct of the sheriff's office." As you probably know, there are no provisions in the Code of Alabama 1975,for the appointment of deputy sheriffs in this State. Considering that fact, this office ruled in an opinion to the Honorable E. Ted Taylor of Prattville dated June 7, 1978, that in the absence of statutory authority, a sheriff has the common law power.to appoint, suspend and fire deputies. The opinion further stated that the county govern- ing bodies have the authority to determine the number and salaries of the deputy sheriffs which a sheriff can employ under their inherent authority to employ agents, servants and employees for the county. I am enclosing a copy of this opinion. It is my opinion that this reasoning would also apply to the hiring of radio dispatchers by a sheriff. If our office can be of further assistance, please do not hesitate to call on us. Sincerely, CHARLES A. GRADDICK Attorney General By - LYND F. KNIGHT I i cl ite Assistant Attorney General LFK;mj THE ATTORNEY GENERAL STATE OF ALABAMA • MONTGOMERY, ALABAMA 3613 June 7, 1978 19O WILLIAM J. BAXLEY ATTORNEY GENERAL GEORGE L. BECK DEPUTY ATTORNEY GENERAL LARRY S. DILLARD EXECUTIVE ASSISTANT WALTER S. TURNER CHIEF ASSISTANT ATTORNEY GENERAL TOM CORK CONFIDENTIAL ASSISTANT JACK D. SHOWS CHIEF INVESTIGATOR Honorable E. Ted Taylor 114 E.Main Street Prattville, Alabama Sheriffs-Deputy Sheriffs- Officers and Offices In absence of statutory authority providing for appointment of deputy sheriffs, sheriff may appoint, suspend or fire deputies and county commission may set salary and number of deputies. Dear Mr. Taylor: I have your request for an opinion of this office dated March 20, 1978. In your letter you stated as follows: Title 54, Section 3, Code of Alabama (1940)(Reconp. 1958) allowed for the appointment of the chief deputy and as many other deputies as the sheriff may deem proper in the various counties within the State of Alabama, and also allowed for the setting of salaries for such personnel to be a task of the county governing body. Under the Code of Alabama 1975, there is no provision whatsoever for the appointment of a deputy sheriff. This has been the source of controversy between some of the sheriffs and their respective county commissions. Who has the authority to hire, appoint, suspend or fire a deputy sheriff within Honorable E. Ted Taylor June 7, 1978 Page Two the various counties in the State of Alabama? It is your opinion as to the answer to this question that we solicit from you in this letter. Common sense indicates to me and most other people with whom I have talked that the sheriff of a county should be able to appoint and fire a deputy sheriff and that the county commission should be able to, within the law, set the salary and number of deputies such sheriff may appoint; however, some people do not understand this and it is for this reason that we need some clarification from your office. Title 54, Section 3, Code of Alabama 1940, as amended, was, as you have correctly noted, left out of the Code after 1975 recodification. The apparent reason for this deletion was that Title 54, Section 3 only applied to sheriffs in the fee system and has thus had no field of operation since sheriffs in Alabama were placed on a salary basis some years ago. I can, however, find no general statute relating to the method of appointing, hiring, suspending or dismissing deputy sheriffs that has been enacted since sheriffs were placed on a salary basis either before or after the 1975 recodification. Section 1-3-1, Code of Alabama 1975, expressly adopts the common law of England, "so far as it is not inconsistent with the Constitution, laws and institutions of this state,..." Therefore, it is my opinion that in the absence of legislation relating to the manner in which deputy sheriffs are to be employed and dismissed, the common law rule should prevail. In a decision in Alabama's early days of statehood, the Alabama Supreme Court stated the common rule relating to the authority of a sheriff to appoint and employ deputies. In the case of McGhee v. Eastis, 3 Stew. 307 at 308 (1831) the Alabama Supreme Court stated: At common law, a sheriff has a right to appoint deputies, though the king's letters patent do not expressly grant this authority. This power is incident to the very nature of the office, is in furtherance of justice, and indispensa- ble to the full and complete discharge of the duties of a sheriff. 4 Honorable E. Ted Taylor June 7, 1978 Page Three Article V, Section 138 of the 1901 Alabama Constitution, by allowing for the impeachment of a sheriff based on the misconduct of his deputies, makes the sheriff liable for the acts of his deputies. It would logically follow that a sheriff has the authority to discipline, suspend or dismiss his deputy sheriffs. In McGhee, supra, at 310, the Alabama Supreme Court adopted this view by stating that the deputy sheriff "must act in the name of his principal [the sheriff], and the latter has at any time a right to revoke his authority..." It is further my opinion that the county governing bodies have the authority to determine both the number and salaries of deputy sheriffs that a sheriff may appoint. This authority flows from the inherent power of counties to employ agents, servants and employees for county purposes, Bice v. Foshee, 19 Ala. App. 421, 97 So. 764 (1923), and from the authority county governing bodies have to prepare and adopt a budget for each fiscal year, Section 11-8-3, Code of Alabama 1975. Of course, the conclusions of this opinion are subject to any local laws and general laws of local application regarding employment of deputies in the several counties such as where a county personnel board or merit system is established or the number, selection or salary of deputy sheriffs is otherwise provided for by local enactment. In conclusion, in those cases where the same is not pro- vided for by local enactment or general bills of local applica- tion, the sheriff may appoint, suspend or fire deputies and the county commission may set the salary and number of deputies. Sincerely, WILLIAM J. BAXLEY Attorney General By GEORGE W. ROYER, JR. Assistant Attorney General GWR:bb