In Legal Terms - Pre-Convention Issue 2002

Public Officials and Conflicts of Interest

In January of this year, the Alabama Ethics Commission issued an advisory opinion holding that a state employee who is also an elected member of the Alabama State Board of Education must take leave from her state employment to perform the duties of her state office, regardless of whether she accepts compensation for serving on the Board. See, Advisory Opinion No. 2002-02. The Commission stated that, "To allow otherwise, would be to permit [this individual] to be paid by the state of Alabama with public funds for work not being performed, which would be a use of public office for personal gain." The Commission cited Code of Alabama 1975, § 36-25-5(a) and (c) as controlling authority for its finding.

Code of Alabama 1975, § 36-25-5(a) provides in pertinent part: No public official or public employee shall use or cause to be used his or her official position or office to obtain personal gain for himself or her- self . . . unless the use and gain are otherwise specifically authorized by law. Personal gain is achieved when the public official, public employ- ee, or a family member thereof receives, obtains, exerts control over, or otherwise converts to per sonal use the object constituting such personal gain.

Code of Alabama 1975, § 36-25-5(c) states that: No public official or public employee shall use or cause to be used equipment, facilities, time, materials, human labor, or other public property under his or her discretion or control for the pri- vate benefit or business benefit of the public offi- cial [or] public employee . . . which would materi- ally affect his or her financial interest, except as otherwise provided by law or as provided pursuant to a lawful employment agreement regulated by agency policy.

This opinion has apparently stirred up some controversy in the state. There have been numerous newspaper articles written and many questions raised about the public employment of public officials. Most articles that I have read concern state legislators, but the issue is important to local officials as well. There has been some effort to try to come up with a broad general rule to address this issue once and for all, and there may be a new Ethics Opinion issued addressing these questions in the near future. However, it appears to me that it would be difficult to come up with one rule that fits all circumstances. Each situation is a little different which, in my opinion, must be determined on its own set of facts, particularly since the duties and roles of public officials vary greatly.

A state legislator is required to be in Montgomery several days a week when the Legislature is in session, and therefore, must be at least physically away from his or her "regular" job on those days. However, a county commissioner who lives and works within the county may be able to perform all of his or her county commission duties "after hours" or during lunch and other breaks.

The difficulty in establishing one rule is well illustrated by looking at two separate attorney general's opinions issued several years ago regarding a superintendent of a county school system serving in public office and holding a second job.1 In AG's Opinion # 90-017, the attorney general's office held that a county superintendent of education would be prohibited from also serving as a state senator, because Code of Alabama 1975, § 16-9-12, dealing with the duties of a superintendent, states that he "shall devote his entire time to public school business". The attorney general distinguished this opinion from an earlier opinion where that office had held that a superintendent could hold a second job performed outside of regular work hours, because service as a senator would prevent him from devoting his entire time to school business whereas a job performed after hours did not interfere with the full-time position as superintendent. See, AG's Opinion # 89-414.

Although there can be no general rule, there are some general guidelines which can be gleaned from recent opinions issued by the Ethics Commission and the attorney general's office that should be helpful to county officials and employees concerned with how to reconcile public service and public (or private) employment. But please remember the golden rule you have heard me say time and time again - when you are dealing with the ethics law and you have any doubt about whether you can take a particular action, you should ask the Ethics Commission before you act! Remember also that, as in the case of a school superintendent, you may have a mixture of issues involving ethics and other state law, and may need an attorney general's opinion as well.

In February, the Ethics Commission issued an opinion holding that a forensic scientist with the Alabama Department of Forensic Science may run for and serve in the office of coroner. See, Advisory Opinion # 2002-09. However, he cannot use any resources belonging to the state department to assist him in his campaign or, if elected, in performing the functions of the office. Additionally, the Commission specifically stated that should his services as coroner be needed while he is on duty with the Department, he must take leave when performing the functions of the coroner's office.

In Advisory Opinion # 2002-06, the Ethics Commission held that there would be "an inherent conflict of interest" for a member of the Alabama Legislature who is employed by a public institution subject to audit by the Examiners of Public Accounts to serve on the Public Examiners Legislative Oversight Committee, because "he or she would be in a position to influence matters which directly affect his or her employment". The Commission cited Code of Alabama 1975, § 36-25-1(8), which defines a conflict of interest as "A conflict on the part of a public official or public employee between his or her private interests and the official responsi bilities inherent in an office of public trust."

That section provides further that:

A conflict of interest involves any action, inaction, or deci- sion by a public official or public employee in the dis- charge of his or her official duties which would materially affect his or her financial inter- est or those of his or her fami- ly members or any business with which the person is asso- ciated in a manner different from the manner it affects the other members of the class to which he or she belongs.

The Commission also cited Code of Alabama 1975, § 36-25-9(a), which provides in pertinent part, that, "Unless expressly provided otherwise by law, no person shall serve as a member or employee of a state, county, or municipal regulatory board or commission or other body that regulates any business with which he is associated."

The attorney general's office has also issued a recent opinion addressing a public employee serving in public office. In AG's Opinion # 2002-180, that office held that an employee of a local school board who also serves as a member of the city council can only attend to council business while he or she is off duty, on personal leave, on annual leave, or on leave without pay. The attorney general stated that whether or not the cost of a substitute should be deducted from the employee's salary would depend on what kind of leave was taken, and local school board policy regarding reimbursement from the employee for the cost of a substitute. However, the cost of a substitute can only be required if a substitute is actually hired to replace the employee during his or her absence.

In this opinion, the attorney general also stated that a member of the city council who is also an education employee could vote on matters affecting the city school system so long as the proposed matter does not affect the council member differently from the way it affects all other education employees. This finding was based on the holding in an earlier opinion, AG's Opinion # 96-269, and on the Supreme Court's ruling in Opinion of the Justices, 474 So.2d 700 (Ala. 1985).

There are many other opinions from the Ethics Commission and the attorney general's office addressing employment issues of public officials and employees as well as service on other boards and commissions while holding public office. The issues are varied and sometimes complex, and as noted above, involve not only ethical considerations, but the proper application of many other state laws. Any public official or public employee must think carefully about their outside activities, and may need to seek the assistance of the county attorney in resolving in any questions.

You can also research opinions through the attorney general's web site www.ago.state.al.us and/or the Ethics Commission www.ethics.alalinc.net, and may need to request your own opinion if you cannot find a definitive answer to your particular set of circumstances. And of course, you can always contact the ACCA staff attorney for counsel and advice.

1These opinions were issued prior to the rewrite of Alabama's ethics law in 1995, but do not deal directly with the ethics law, and in my opinion, are still valid today.