Alabama Attorney General Opinion 1979-0100

OFFICE OF THE ATTORNEY GENERAL 79- 00/00 LEE L. HALE DEPUTY ATTORNEY WILLIAM Me JR EXECUTIVE ASSISTANT CHARLES A. GRADDICK ATTORNEY GENERAL STATE OF ALABAMA MAR 1 9 1979 ADMINI S LYE •UILOIN St UNION SITS AREA (SOS). •26•1110 W TURNER CHUM ASSISTANT ATTORNEY JAMIE NOBLES ADMINI IV! ASSISTANT Mr. Theron 0. McDowell, Jr. City Attorney 132 West Main Street Prattville, Alabama 36067 Municipalities - Firefighters 1. The Continued employment of a. person convicted of Attempted Burglary Second Degree, after such conviction is discovered, violates the Alabama Fire Fighters Personnel Standards and Education Act (Act 863 Regular Session 1975). 2. If no fraud is involved in that person's contract of employ- ment, that person is entitled to severance pay. Dear Mr.. McDowell: Your request of February 7, 1979, on behalf of the City of Prattville, to this office has been received with your problem presented as follows: "The City of Prattville on January 2, 1976, employed a person to fill the position of fire fighter #2 (City of Prattville Fire Department), and he began to faithfully fulfill his duties. The City has now dis- covered that on January 9, 1973, he was convicted, upon his plea of guilty, of 'attempted burglary second degree' and sentenced to County Jail for a period of six (6) months with probation. Mr. Theron (Y. McDowell, Jr. Page Two "Does the continued employment by the City of Prattville; after the discovery of the aforesaid conviction, violate the Alabama Fire Fighters Personnel Standards and Education Act (Act 863 Regular Session 1975), and if he is disqualified, doed the person who issues his severance pay violate Sedtion 8 of this Act?" Sectian 7 and subseCtion (e) of Act 863 Regular SeSsion 1975 read,as follows: "Section 7. Minimum Standards. The mini- mum standards hereafter in this section pro- vided shall apply to applicants and appointees as firefighting personnel who are not fire- fighters in the State on the effective date of this Act and to applicants and appointees who, though firefighters on the effective date of this Act, cease to be such before making application for employment as a firefighter or being employed as a firefighter. No city or town shall employ any such applicant who is not on the effective date of this Act a fire- fighter and who continues until the date of his application as a firefighter unless such person shall have first submitted to the appointing authority an application for such employment verified by affidavit of the appli- cant, and showing compliance with the following qualifications: "(e) Character. The applicant shall be a person of good moral: character and: reputation. His' application shall show that he has never • • been convicted, of A felony or A thltddthAddor involving Either- force,' ViblAnte moral ttirpitOdi;hand shall be accompanied by letters from three.qnalified voters of the area in which the applicant proposes to serve as a firefighter attesting. hiS good reputation. - Mr. Theron 0. McDowell, Jr. Page Three "The foregoing requirements shall not apply to any person who is pretiently employed as a firefighter in the State and whd continues to be 46 eMployed when he 'naked application for or isjamployed- as a firefighter in a diffetent capacity or for a different employer." [Emphasis added] Section 8 of said Act reads: "Section 8. Penalties. Any person who shall appoint any applicant who, to the knowledge of the appointor, fails to meet the qualifica- tions as a firefighter provided in Section 8 of this Act, or the standards, rules and regu- lations issued by the Commission under this Act, and any person who signs the warrant or check for the payment of the salary of any person who, to the knowledge of the signer, fails to meet the qualifications as a fire- fighter provided in Section 8 of this Act, or any. standard, rule or regulation issued pursuant to the Act shall be guilty of a misdemeanor and upon conviction shall be subject to a fine not exceeding $1,000." [Emphasis added] Thus, any person who appoints an applicant who has been convicted of a felony or a misdemeanor involving either force, violence 'or moral turpitude, or any =pperson who continues the em- ployment of said applicant after such knowledge of conviction is acquired, is in violation of said Act. The question of whether or not severance pay should be paid to an employee depends largely upon the provisions of the contract of employment where said contract is held to be valid. U.S. Pipe and Foundry Co. v. Nettles, 39 Ala. App. 115, 96 So. 2d 186 (1957). Note, however, that where the employee has intentionally made misrepresentations to his employer relative to a material fact of his character, the contract is void ab initio, or from the beginning, because of that deception or _ that "vitiating fraud. Bankers' Mortgage Company v. Rosenthal, 226 Ala. 135, 145 So. 456 (1933). Accordingly, the employee will not be entitled to severance pay. Any person who, with knowledge of the employee's failure to meet the above-stated qualifications, authorizes continued payment of salary to said employee is in violation of said Act. Mr. Theron 0. McDowell, Jr. Page Four However, where there was no attempt on the part of the employee to- mislead his eMployet (either by spoken word or by information given on the contract of employment) and no inquiry was made by the employer into the employee's charactet (or an inquiry was made and thtoughho fault of his own the employee's prior conviction was not detected), the etployee should .not bear.the burden of having his eMployment terminated without benefit of severance pay when knowledge:of-the employee's prior conviction is later gained. 'AMetitaU - Security Life Insurance Company v. Mien, - 37 Ala. App. 552, 72 So. 2d 132 (1954) This is especially true Whete the employment contract doed not in- clude provisions for forfeiture of severance pay upon the later determination of an employees initial unqualification. . In such a case; authorization of severance pay should not be in violation of said Act. Yours very truly, CHARLES A. GRADDICK ATTORNEY GENERAL By- MEB:dpr