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STATE OF ALABAMA

ETHICS COMMISSIONMAILING ADDRESS

P.O. BOX 4840

MONTGOMERY, AL36103-4840

STREET ADDRESS

RSA UNION100 NORTH UNION STREET

SUITE 104

MONTGOMERY, AL 36104Henry B. Gray III, ChairmanCamille S. Butrus, Vice-Chairman

Helen Shores Lee. Esq.H. Dean Buttram. Jr.. Esq.James T. Pursell

James L. Sumner, Jr.

Director

Hugh R. Evans, IIIAssistant Director

General Counsel

TELEPHONE (334) 242-2997

FAX (334) 242-0248

January 7, 1998

ADVISORY OPINION NO. 98-05

Mickey D. EzellExecutive DirectorSouthwest Alabama Mental Health!

Mental Retardation Board, Inc.139 North Mt. Pleasant AvenuePost Office Box 964Monroeville, Alabama 36461

Conflict Of Interests/County CommissionerServing On 310 Mental Health/MentalRetardation Board.

A County Commissioner may serve on theBoard of the Southwest Alabama MentalHealth/Mental Retardation Board, Inc.;provided, the position is non-compensatedand there is no opportunity for personalgain; that he did not vote, attempt toinfluence or in any manner participate in hisappointment to the 310 Board; and, that henot vote, attempt to influence or in anymanner participate in any budgetappropriations made by the CountyCommission to the 310 Board. However,the prohibition that he not vote, attempt toinfluence or in any manner participate in anybudget appropriations made by the CountyCommission to the 310 Board would notapply, if the County Commissioner wasrequired by law to serve on the board.

Mickey D. EzellAdvisory Opinion No. 98-05Page two

Conflict Of Interests/County Commissioner/310 Board Member Providing Insurance To310 Board.

A County Commissioner/3l 0 BoardMember may provide insurance to the 310Board through his employer; provided, hedid not use his position as a CountyCommissioner/3l0 Board Member to obtainthe opportunity; that any future businessdealings, including the brokerage of theinsurance business, between the insurancecompany and the 310 Board be done throughthe competitive bid process; that theCommissioner/3l0 Board Member not vote,attempt to influence or otherwise participatein any matters relating to the businessdealings between the insurance company andthe 310 Board; that the Commissioner/ 310Board Member not disclose any confidentialinformation obtained in the course of hisservice on the 310 Board which would affector provide a benefit to the insurancecompany by which he is employed; and, thatthe Commissioner/3l 0 Board Member notcommunicate or otherwise involve himselfin any settlement or other matters that relateto a claim on behalf of or against the 310Board on a policy written through hisemployer.

Dear Mr. Ezell:

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.

Mickey D. EzellAdvisory Opinion No. 98-05Page three

QUESTIONS PRESENTED

1. Is it a conflict of interests for a County Commissioner to simultaneouslyserve on a 310 Board?

2. Is it a conflict of interests for the Brewton Insurance Agency to provideinsurance for the Southwest Alabama Mental Health/Mental Retardation Board,Inc., when the agent writing the policy is a member of the 310 Board?

FACTS AND ANALYSIS

David Stokes of Brewton, Alabama is interested in being a member of the Board ofDirectors of the Southwest Alabama Mental Health/Mental Retardation Board, Inc. (310 Board-Public, non-profit). The Board provides public Mental Illness, Mental Retardation, andSubstance Abuse services in Clarke, Conecuh, Escambia, and Monroe Counties. There areconflicts of interest questions that Mr. Stokes and the Director of the 310 Board wish to haveaddressed by the Alabama Ethics Commission.

Mr. Stokes is a County Commissioner in Escambia County. The Escambia CountyCommission currently makes an appropriation to Southwest to help pay for indigent services.Their FY 98 appropriation to the Board is $30,000.00.

Secondly, Mr. Stokes is an agent for the Brewton Insurance Company. He has beenassociated with the Brewton Insurance Company for many years. The Brewton InsuranceCompany has been providing insurance to the 310 Board for a number of years. Mr. Stokescurrently acts as the insurance agent for the 310 Board.

Based on the above scenarios, Mr. Stokes and Mickey D. Ezell, the Director of the 310Board, have asked for this Advisory Opinion.

The Alabama Ethics Law, Code of Alabama, 1975, Section 36-25-1(24) states:

"(24) PUBLIC OFFICIAL. Any person elected to public office, whether or notthat person has taken office, by the vote of the people at state, county, ormunicipal level 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 chairs

Mickey D. EzellAdvisory Opinion No. 98-05Page four

and vice-chairs or the equivalent offices of each state political party as defmedin Section 17-16-2."

Section 36-25-1(23) states:

"(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 of those 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 36-25-1(2) states:

"(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 36-25-1(8) states:

"No public official, public employee, former public official or former publicemployee, for a period consistent with the statute of limitations as contained inthis chapter, shall use or disclose confidential information gained in the course ofor by reason of his or her position or employment in any way that could result infinancial gain other than his or her regular salary as such public official or publicemployee for himself or herself, a family member of the public employee orfamily member of the public official, or for any other person or business."

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 ofthe 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 the

Mickey D. EzellAdvisory Opinion No. 98-05Page five

public 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 thepublic 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 36-25-8 states:

"No public official, public employee, former public official or former publicemployee, for a period consistent with the statute of limitations as contained inthis chapter, shall use or disclose confidential information gained in the course ofor by reason of his or her position or employment in any way that could result infinancial gain other than his or her regular salary as such public official or publicemployee for himself or herself, a family member of the public employee orfamily member of the public official, or for any other person or business."

The fact scenario presented offers numerous potential conflicts of interests, including thatof Mr. Stokes serving on a Board that is appointed by the County Commission on which heserves, as well as that of the County Commission appropriating money to the Board. In addition,it is a potential conflict for Mr. Stokes to sell insurance to an entity on which he serves.

Important in resolving the conflicts are the fact that service on the 310 Board is non-compensated and there is no opportunity for personal gain to Mr. Stokes. In addition, it isimportant to point out that Mr. Stokes has been the insurance agent of record for the 310 Boardin the past and the 310 Board has for some time been purchasing insurance from the BrewtonInsurance Agency.

Based on the above law and the facts as provided, a County Commissioner may serve onthe Board of the Southwest Alabama Mental Health/Mental Retardation Board, Inc., and provideinsurance to the 310 Board through his employer; provided the following guidelines arefollowed:

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Mickey D. EzellAdvisory Opinion No. 98-05Page six

1. That the position is non-compensated and there is no opportunity forpersonal gain;

2. That he did not vote, attempt to influence or in any manner participate inhis appointment to the 310 Board;

3. That he not vote, attempt to influence or in any manner participate in anybudget appropriations made by the County Commission to the 310 Board;

4. That he did not use his position as a County Commissioner/3l 0 BoardMember to obtain the opportunity;

5. That any future business dealings between the insurance company and the310 Board be done through the competitive bid process;

6. That the Commissioner/310 Board Member not vote, attempt to influenceor otherwise participate in any matters related to the business dealings betweenthe insurance company and the 310 Board;

7. That the Commissioner/ 310 Board Member not disclose any confidentialinformation obtained in the course of his service on the 310 Board which wouldaffect or provide a benefit to the insurance company by which he is employed;and,

8. That the Commissioner/310 Board Member not communicate or otherwiseinvolve himself in any settlement or other matters that relate to a claim on behalfof or against the 310 Board on a policy written through his employer.

CONCLUSION

A County Commissioner may serve on the Board of the Southwest Alabama MentalHealth/Mental Retardation Board, Inc.; provided, the position is non-compensated and there is noopportunity for personal gain; that he did not vote, attempt to influence or in any mannerparticipate in his appointment to the 310 Board; and, that he not vote, attempt to influence or inany manner participate in any budget appropriations made by the County Commission to the 310Board. However, the prohibition that he not vote, attempt to influence or in any mannerparticipate in any budget appropriations made by the County Commission to the 310 Boardwould not apply, if the County Commissioner was required by law to serve on the board.

Mickey D. EzellAdvisory Opinion No. 98-05Page seven

A County Commissioner/310 Board Member may provide insurance to the 310 Boardthrough his employer; provided, he did not use his position as a County Commissioner/310Board Member to obtain the opportunity; that any future business dealings, including thebrokerage of the insurance business, between the insurance company and the 310 Board be donethrough the competitive bid process; that the Commissioner/310 Board Member not vote, attemptto influence or otherwise participate in any matters relating to the business dealings between theinsurance company and the 310 Board; that the Commissioner/ 310 Board Member not discloseany confidential information obtained in the course of his service on the 310 Board which wouldaffect or provide a benefit to the insurance company by which he is employed; and, that theCommissioner/310 Board Member not communicate or otherwise involve himself in anysettlement or other matters that relate to a claim on behalf of or against the 310 Board on a policywritten through his employer.

AUTHORITY

By 3-2 vote of the Alabama Ethics Commission on January 7, 1998.

Henry BE"Chair "

Alabama Ethics Commission