Alabama Attorney General Opinion 1979-0094

gar V/ S. TURNER cNIEF ASST REV LEE L. HALE DEPUTY ATTORNEY WILINAM M. BERLINS. IR EXECUTIVE ASS) • OFFICE OF THE ATTORNEY GENERAL r) 9- oco CHARLES A. GRAODICK ATTORNEY GENERAL STATE OF ALABAMA APR 1 L 1979 ADMIPIISTNATIVIIIIMONte WONAMIS T M Ala.14101A 341 S4I ASIA 4350.1144/1511 JAMIE NOBLES ADMINISTRATIVE ARSISITAINT Honorable Robert H. Kirksey -Judge of Probate Pickens County Commission P. 0. Box 460 Carrollton, Alabama 35447 Sheriffs - Retirement Systems Discussion of deductions from salary of sheriff by county for sheriff's retirement system. Deductions from sheriff's salary for retirement system was to begin when Act No. 1231 became law. Dear Judge Kirksey: This is to acknowledge your request for an opinion from the Attorney General concerning Act No. 1231, Acts of Alabama 1975, p. 2591. 1. Is Act 1231 of the 1975 Regular Session of the Alabama Legislature, which provides for a retirement system for the Sheriffs of the various counties within the State, constitutional? (We note that certain counties are excluded from its coverage.) 2. If you rule that this Act is constitutional, then we would inquire as to whether it is permissive or mandatory on the County Commission to make the deductions from the Sheriff's salary as provided in the Act. (Section 4. of the Act contains a sentence which reeds Honorable Robert H. Kirksey Pickens County Commission Page Two as folloWs: "However, this act is permissive in nature and the govern- ing body of said county may decline to make such payments". We note that this sentence does not say that this Section is permissive but that this Act is permissive.) (underline is ours) It appears to us that such a provision (tb withhold from the Sheriff's salary, then permitting the County Commission to refuse to make payments to him upon his so-called retirement) would be so imminently unfair that the only reason- able construction remaining would be that the Legislature did mean as it states in Section 4 - that the entire "act" is permissive. 3. If you rule that this Act is constitutional, would it have been proper for the County Commission to deduct the presumed sums from the Sheriff's salary prior to his present term of office which began on January 16, 1979. Enclosed for your information is an opinion of former Attorney General Baxley to the Honorable T. M. Brantley, the Attorney for Baldwin County, dated September 15, 1976, regarding the validity of Act No. 1231. We express no further opinion on this question. Turning to your second question, Act No. 1231 in addition to being permissive in the nature of permitting a county to choose not to make retirement payments under the Act, is also permissive in the nature that a sheriff may choose whether he would like to come under the retirement plan established by Act No. 1231 or some other state or county retirement system. This is stated in Sections 3 and 5 of the Act. In the event that the sheriff does choose to come under the retirement plan of Act No. 1231, it is mandatory that the county make the deductions from his salary as set out in Section 3. Note that 91kida-1/%- L DA F. KNIGHT Assistant Attorney General Honorable Robert H. Kirksey Pickens County Commission Page Three although the county may refuse to make payments under the retirement plan, it must return all contributions made by the sheriff. Your last question is also to be answered in the affirmative. Section 10 of-Act No. 1231 supra stated that the Act is to become effective immediately upon its passage and approval by the Governor or upon its otherWise becoming a law. Therefore, the county was to begin deducting contributions from the salary of the sheriff as soon as it became law on October 10, 1975. Act No. 1231 supra is codified at Code of Alabama 1975, Section 36-22-40 through 36-22-45. Section 36-22-42 states that the governing body of each county shall begin the deductions from the salary of the sheriff for the sheriff's retirement system starting October 10, 1975. There is no provision stating that such deductions were to begin at the start of the next term of the sheriff. If our office can be of further assistance to you, please do not hesitate to contact us. Very truly yours, CHARLES A. GRADDICK Attorney General By- LFK/sg