M.WSTATE OF ALABAMA

ETHICS COMMISSION

MAILING ADDf\ESSP.O. BOX 484'0

MONTGOMERY, AL36103-4840

STREET ADDRESSRSA UNION

100 NORTH UNION STREETSUITE 104

MONTGOMERY, AL 36104COMMISSIONERS

John H. Cooper, Esq., ChairCameron McDonald Vowell, Ph.D., Vice-Chair

Michael K.K. Choy, Esq.Linda L. Green

Nancy Edwards Eldridge

James L. Sumner, Jr.Director

TELEPHONE (334) 242-2997

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

April 2, 2008

ADVISORY OPINION NO. 2008-07

Mr. Clifford O. HunterMember, Dallas County CommissionDistrict 4211 Cone DriveSelma, Alabama 36701

Conflict Of Interest/Dallas County E-911Communications District Board MemberServing As Administrator OfE-911 District

A member of the Dallas County E-911Communications District Board may, uponhis resignation from the Board, apply for theposition of Administrator of theCommunications District; provided, thatthere was no prearranged understanding thathe would be hired; that he did not use hisinfluence as a board member to obtain theposition; where the Board, after reviewingqualifiedapplicants,determinesthat the .

former member is the most qualifiedapplicant for the position; and further, wherehe was not involved in creating the vacancy.

A member of the Dallas County E-911Communications District Board may notserve simultaneously as a member of theBoard, as well as the paid Administrator ofthe Communications District.

-- -- --

Mr. Clifford O. HunterAdvisory Opinion No. 2008-07Page two

Dear Commissioner Hunter:

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

Maya member of the Dallas County E-911 Communications District Board servesimultaneously as Board member, as well as the paid Administrator for the E-911Communications District?

FACTS AND ANALYSIS

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

Clifford O. Hunter represents District 4 on the Dallas County Commission. He is seekingclarification as to whether or not a serving CommissionerlBoard member of the Dallas County E-911 Communications District Board of Commissioners may also serve contemporaneously as anAdministrator of the Communications District.

The Dallas County E-911 Communications District was established pursuant to Code ofAlabama, Section 11-98-1, et seq. The Dallas County Commission is its creating authoritypursuant to this section. The Board of Commissioners consists of seven members appointed bythe Dallas County Commission pursuant to Section 11-98-4(a). The CommissionerslBoardmembers are not compensated.

For some time, the District's Board of Commissioners has employed a person to serve asits "administrator" who administratively handles the day-to-day business of the District.Recently, the District's Administrator died and the Dallas County Commission has been advisedthat it is the intent of the District to appoint one of the members of its Board of Commissionersto serve contemporaneously as its administrator. The administrator is a compensated position.

A controversy has developed as to whether the District's Board of Commissioners has thelegal authority to appoint one of its members to serve contemporaneously as the District'sadministrator.

The interest of the Dallas County Commission in this matter is that it has the statutoryright to fill the vacancy if, in fact, a serving Commissioner of the District is required to resignthat position prior to accepting the position of administrator.

Mr. Clifford O. HunterAdvisory Opinion No. 2008-07Page three

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."

Section 36-25-1(23) defines a public employee as:

"(23) PUBLIC EMPLOYEE. Any person employed at the state, county, ormunicipal level of government or their instrumentalities, including governmentalcorporations and authorities, but excluding employees of hospitals or other healthcare corporations including contract employees ofthose hospitals or other healthcare corporations, who is paid in whole or in part from state, county or municipalfunds. For purposes of this chapter, a public employee does not include a personemployed on a part-time basis whose employment is limited to providingprofessional services other than lobbying, the compensation for which constitutesless than 50 percent of the part-time employee's income."

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 areotherwise specifically authorized by law. Personal gain is achieved when thepublic official, public employee, or a family member thereof receives, obtains,exerts control over, or otherwise converts to personal use the object constitutingsuch personal gain."

Section 36-25-5(c) states:

"(c) No public official or public employee shall use or cause to be usedequipment, facilities, time, materials, human labor, or other public property underhis or her discretion or control for the private benefit or business benefit of the

Mr. Clifford O. HunterAdvisory Opinion No. 2008-07Page four

public official, public employee, any other person, or principal campaigncommittee as defined in Section 17-22A-2, which would materially affect his orher financial interest, except as otherwise provided by law or as provided pursuantto a lawful employment agreement regulated by agency policy."

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 of themember has any financial gain or interest."

As a general rule, the Commission has always required that an individual resign his or herposition before applying for a paying position with the entity on which he or her serves, in orderto create as level a playing field as possible. The guidelines the Commission has set out includethe following:

1) there must be no prearranged understanding that the Board member will be hiredprior to his resignation;

2) that the Board member did not use his influence as a Board member to obtain theposition;

3) where the Board, after reviewing qualified applicants, determines that the formermember is the most qualified applicant; and,

4) where the Board member was not involved in creating the vacancy.

In the facts before the Commission, it would be a conflict of interest for the Boardmember to continue his service on the Board while also serving in a paid position with the Board.He must, therefore, resign his position prior to applying for the Administrator's opening.

Based on the facts as provided and the above law, a member of the Dallas County E-911Communications District Board may, upon his resignation from the Board, apply for the positionof Administrator of the Communications District; provided, that there was no prearrangedunderstanding that he would be hired; that he did not use his influence as a board member toobtain the position; where the Board, after reviewing qualified applicants, determines that theformer member is the most qualified applicant for the position; and further, where he was notinvolved in creating the vacancy.

Mr. Clifford O. HunterAdvisory Opinion No. 2008-07Page five

A member of the Dallas County E-911 Communications District Board may not servesimultaneously as a member of the Board, as well as the paid Administrator of theCommunications District.

CONCLUSION

A member of the Dallas County E-911 Communications District Board may, upon hisresignation from the Board, apply for the position of Administrator of the CommunicationsDistrict; provided, that there was no prearranged understanding that he would be hired; that hedid not use his influence as a board member to obtain the position; where the Board, afterreviewing qualified applicants, determines that the former member is the most qualified applicantfor the position; and further, where he was not involved in creating the vacancy.

A member of the Dallas County E-911 Communications District Board may not servesimultaneously as a member of the Board, as well as the paid Administrator of theCommunications District.

AUTHORITY

By 3-0 vote of the Alabama Ethics Commission on April 2, 2008.