S1 A1E OF ALABAMA

ETHICS COMMISSION

COMMISSIONERS

Russell Jackson Drake, Esq., ChairmanJ. Harold Sorrells, Vice-ChainnanRaymond L. Bell, Jr., Esq.Linda L. Green

Nancy Edwards Eldridge

MAILING ADDRESS

P.O. BOX4840MONTGOMERY.AL

36103-4840

STREET ADDRESS

RSA UNION100 NORTHUNIONSTREET

SUITE 104MONTGOMERY.AL 36104 James L. Sumner, Jr.

Director

May 7, 2003

TELEPHONE (334) 242-2997

FAX (334) 242-0248WEB SITE www.ethics.a1alinc.net

ADVISORY OPINION NO. 2003-25

The Honorable Ken Williams

MayorCity of Saralandc/o T. Dwight Reid & Associates, P.C.Attorneys at Law4357 Midmost DriveMobile, Alabama 36609

Conflict Of Interest/Mayor And/Or CouncilMembers Voting To Appropriate Funds To,Or Contract With, Organizations On WhoseBoards Of Directors They Sit Or To WhichThey Belong As Members

The Mayor and/or members of the SaralandCity Council may not vote, attempt toinfluence or otherwise participate in anyvotes to appropriate funds to, or contractwith, organizations on whose Boards ofDirectors they sit, as these organizations arebusinesses with which they are associated.

The Mayor and/or members of the CityCouncil may vote to appropriate funds to, orcontract with, organizations to which theybelong, but on whose Boards of Directorsthey do not sit, as membership in theseorganizations does not make theorganizations businesses with which they areassociated.

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The Honorable Ken WilliamsAdvisory Opinion No. 2003-25Page two

Dear Mayor Williams:

The Alabama Ethics Commission is in receipt of your request for an Advisory Opinion ofthis Commission, and this opinion is issued pursuant to that request.

OUESTION PRESENTED

May the Mayor and/or members of the City Council vote to appropriate funds to, orcontract with, organizations to which the Mayor and/or Council members belong as members, orwhere the Mayor and/or Council members are officers or board members of the organizations?

FACTS AND ANALYSIS

The facts as have been presented to this Commission are as follows:

Ken Williams is the Mayor of the City of Saraland, Alabama. The City Council recentlypassed a Resolution requesting the Ethics Commission to render an opinion on the propriety ofthe Mayor and/or members of the Council voting to appropriate funds to, or contract with, non-profit organizations of which the Council members and/or Mayor may be unpaid and volunteerofficers, directors, board members or simply members. These organizations could include theChamber of Commerce, a county-wide municipal association, school improvement association,service organization, such as the Red Cross or United Way, Keep Saraland Beautiful, Friends ofthe Animal Shelter, etc.

The Alabama Ethics Law, Code of Alabama. 1975, Section 36-25-1(24), defines a publicofficial as:

"(24) PUBLIC OFFICIAL. Any person elected to public office, whether or not thatperson has taken office, by the vote of the people at state, county, or municipallevel of government or their instrumentalities, including governmentalcorporations, and any person appointed to a position at the state, county, ormunicipal level of government or their instrumentalities, including governmentalcorporations. For purposes of this chapter, a public official includes the chairsand vice-chairs or the equivalent offices of each state political party as defined inSection 17-16-2."

The Honorable Ken WilliamsAdvisory Opinion No. 2003-25Page three

Section 36-25-5(a) states:

"(a) No public official or public employee shall use or cause to be used his or herofficial position or office to obtain personal gain for himself or herself, or familymember of the public employee or family member of the public official, or anybusiness with which the person is associated unless the use and gain are otherwisespecifically authorized by law. Personal gain is achieved when the public official,public employee, or a family member thereof receives, obtains, exerts controlover, or otherwise converts to personal use the object constituting such personalgain."

Section 36-25-1(2) defines a business with which the person is associated as:

"(2) BUSINESS WITH WHICH THE PERSON IS ASSOCIATED. Any businessof which the person or a member of his or her family is an officer, owner, partner,board of director member, employee, or holder of more than five percent of thefair market value of the business."

Section 36-25-9( c) states:

"(c) No member of any county or municipal agency, board, or commission shallvote or participate in any matter in which the member or family member ofthemember has any financial gain or interest."

Service on the Board of Directors (regardless of whether or not compensation is received)makes that organization a business with which the person is associated. Therefore, any action bythe Mayor or a member of the Council including, but not limited to, voting to appropriate moneyto those organizations, would be using his or her position to benefit a business with which he orshe is associated in violation of Section 36-25-5(a).

On the other hand, mere membership in an organization does not make that organizationa business with which the person is associated. Therefore, it would not be inappropriate for theMayor or members of the Council to vote to appropriate money to organizations to which theybelong, but do not serve on the Boards of Directors.

Based on the above law and the facts as provided, the Mayor and/or members of theSaraland City Council may not vote, attempt to influence or otherwise participate in any votes toappropriate funds to, or contract with, organizations on whose Boards of Directors they sit, asthese organizations are businesses with which they are associated.

The Honorable Ken WilliamsAdvisory Opinion No. 2003-25Page four

However, the Mayor and/or members of the City Council may vote to appropriate fundsto, or contract with, organizations to which they belong, but on whose Boards of Directors theydo not sit, as membership in these organizations does not make the organizations businesses withwhich they are associated.

CONCLUSION

The Mayor and/or members of the Saraland City Council may not vote, attempt toinfluence or otherwise participate in any votes to appropriate funds to, or contract with,organizations on whose Boards of Directors they sit, as these organizations are businesses withwhich they are associated.

The Mayor and/or members of the City Council may vote to appropriate funds to, orcontract with, organizations to which they belong, but on whose Boards of Directors they do notsit, as membership in these organizations does not make the organizations businesses with whichthey are associated.

AUTHORITY

By 5-0 vote of the Alabama Ethics Commission on May 7,2003.