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AG: Board can adopt double dipping ban

MONTGOMERY (AP) — The attorney general said Thursday the State Board of Education has the legal authority to adopt the governor's proposed policy banning legislators from working for two-year colleges, but he declined to say whether the proposed policy would be constitutional.

Attorney General Troy King said his office does not answer questions about constitutionality because that is up to the courts, including questions about whether the proposed policy violates the separation of powers between the executive and legislative branches of government.

King also said he could not advise the governor on whether the U.S. Justice Department would approve the proposed change in Alabama's election procedures.

"The bottom line is there is no specific statutory prohibition to what the governor has proposed, but there are other issues implicated," King said in an interview.

Gov. Bob Riley had asked King for an official advisory opinion about the proposed rules he presented to the state school board. Riley's plan would prohibit a legislator or anyone in statewide elected office from working for the two-year college system — a practice known as "double dipping."

Riley's first question to King was whether the school board can prohibit its employees from serving in the Legislature or statewide elected office.

In an eight-page opinion, King said state law gives the school board, subject to recommendation of the two-year college chancellor, the authority to make rules about employment.

In the governor's request, he asked whether state law gives state employees a right to hold public office while maintaining their state employment.

King wrote that state law gives state employees the right to participate in "political activities" to the same extent as any other citizen of the state, but "the term 'political activities' is not defined" in state law.

Riley also asked whether the state's Fair Dismissal Act for two-year college employees would prohibit the firing of an employee who didn't step aside from elected office.

King said state law allows two-year college employees to be terminated for "good and just cause," and the question of whether the proposed policy constitutes "good and just cause" would have to be made by the school board and then by the courts because King anticipates a legal challenge if the policy is enacted.

King said in an interview that Alabama is not the first state to travel a similar path.

In Delaware, the state Supreme Court issued an opinion in 1968 saying proposed legislation barring legislators from having other state jobs was unconstitutional.

In Georgia, the Dougherty County Board of Education adopted a policy requiring employees to take unpaid leaves of absence to campaign for public office, but the U.S. Supreme Court struck down the policy in 1978 because it wasn't reviewed and approved by the Justice Department under the 1965 Voting Rights Act.

King said that ruling is why he believes Riley's proposed policy would have to be submitted to the Justice Department.

Copyright 2005 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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