ClD

S1 A1E OF ALABAMA

ETHICS COMMISSION

James T. Pursell, Chairman

Henry B. Gray III, Vice-ChairmanCamille S. Butms

Helen Shores Lee, Esq.H. Dean Buttram, Jr., Esq.

MAILING ADDRESS

P.O. BOX4840MONTGOMERY,AL

36103-4840

STREET ADDRESS

RSA UNION100 NORTHUNIONSTREET

SUITE104MONTGOMERY,AL 36104 E. J. (Mac) McArthur

Director

September 19, 1996 TELEPHONE (334) 242-2997

FAX (334) 242-0248

ADVISORY OPINION NO. 96-93

Robert SpenceMullins & SpenceAttorneys At Law2600 Sixth StreetTuscaloosa, Alabama 35401

Personal Gain! Deputy SheriffLeasing Office Space In HisResidence To County SheriffsDepartment For Use As Substation.

A Deputy Sheriff may not sublease aportion of his residence for use as asubstation for the Tuscaloosa CountySheriff s Department.

Dear Mr. Spence:

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.

QUESTION PRESENTED

Maya Deputy Sheriff sublease a portion of his residence for use as a substation for theTuscaloosa County Sheriff s Department?

Robert SpenceAdvisory Opinion No. 96-93Page two

FACTS AND ANALYSIS

Tuscaloosa County is a geographically large county. Over the past two or three years, thecounty has seen a dramatic increase in the population in the eastern tip of the county which abutsJefferson and Bibb Counties. In addition, over the past few years, some of the criminal activityfrom the nearby City of Bessemer has spilled over into Tuscaloosa County.

The Sheriff of Tuscaloosa County has implemented a "resident deputy's program".Among other things, this program allows deputies to take the patrol car assigned to them to theirresidence, thereby, giving the Sheriffs office increased visibility throughout the County. Whilethe Sheriff has been trying for several months to encourage a Deputy within the Department torelocate to the eastern part of the county to provide a resident Deputy for this fast growing area,until recently he has been unsuccessful. In recent months, however, one of his Deputies hasindicated that he would be willing to move into the area.

The Sheriff has assisted the Deputy in locating a residence to rent, and has expressed thathe would like to sublease a portion of that residence for use as a substation for his Department.The residence is approximately thirty-five miles from the Sheriffs office in Tuscaloosa. TheSheriff has expressed an interest in setting up a substation which would allow Deputies in thatarea to utilize the building for purposes of interviewing witnesses, taking statements, and writingreports. In addition, the Sheriff would like to install some equipment in this residence tofacilitate this use by Deputies who might be called to work in the area. Among the items theywould like to place there are radio equipment, a fax machine, and a dedicated telephone line.The Sheriff would like to lease a specific portion of the residence, that being an office on thewest side of the building that is approximately twenty-four feet by twelve feet in dimension. Acontract has been prepared under which the Deputy Sheriff will be solely responsible forexpenses relating to his residence and living area, and the Sheriffs Department will be solelyresponsible for expenses relating to the rental of the office space. The contract calls for thepayment of fifty dollars per month from the Sheriff s Department to the Deputy Sheriff for thelease of the space.

The Tuscaloosa County Commission has indicated that it is willing to enter into asublease of the premises for the Sheriffs substation, however, they desire to obtain an AdvisoryOpinion from the Ethics Commission prior to doing so.

All contacts regarding this transaction were instituted by the Sheriff on behalf of theSheriffs Department and the County Commission, and not by the Deputy.

Robert SpenceAdvisory Opinion No. 96-93Page three

The Alabama Ethics Law, Code of Alabama, Section 36-25-2(a)(3) states:

"(a) The Legislature hereby finds and declares:

(3) No public office should be usedfor private gain other than the remuneration providedby law."

Section 36-25-1 (2) states:

"(2)BUSINESS WITH WHICH THE PERSON IS ASSOCIATED. Any business ofwhichthe person or a member of his or herfamily is an officer, owner, partner, board ofdirector member, employee, or holder of more thanfive percent of thefair market valueof the business. "

Section 36-25-1(24) states:

"(24)PUBLIC EMPLOYEE. Any person employed at the state, county, or municipallevel of government or their instrumentalities, including governmental corporations andauthorities, but excluding employees of hospitals or other health care corporationsincluding contract employees of those hospitals or other health care corporations, who ispaid in whole or inpart from state, county or municipalfunds. For purposes of thischapter, a public employee does not include a person employed on a part-time basiswhose employment is limited toproviding professional services other than lobbying, thecompensationfor which constitutes less than 50percent of the part-time employeesincome. "

Section 36-25-1(8)(a) states:

"(8) CONFLICT OF INTEREST. A conflict on the part of a public official orpublicemployee between his or her private interests and the official responsibilities inherent inan office of public trust. A conflict of interest involves any action, inaction, or decisionby a public official orpublic employee in the discharge of his or her official duties whichwould materially affect his or herfinancial interest or those of his or herfamily membersor any business with which theperson is associated in a manner differentfrom themanner it affects the other members of the class to which he or she belongs. A conflict ofinterest shall not include any of thefollowing:

a. A loan orfinancial transaction made or conducted in the ordinary course ofbusiness. "

Robert SpenceAdvisory Opinion No. 96-93Page four

Section 36-25-5(a) states:

"(a)No public official orpublic employee shall use or cause to be used his or her officialposition or office to obtainpersonal gainfor himself or herself, orfamily member of thepublic employee orfamily member of thepublic official, or any business with which theperson is associated unless the use and gain are otherwise specifically authorized by law.Personal gain is achieved when thepublic official,public employee, or afamily memberthereof receives, obtains, exerts control over, or otherwise converts topersonal use theobject constituting such personal gain. "

Section 36-25-5( c) states:

"(c)No public official orpublic employee shall use or cause to be used equipment,facilities, time, materials, human labor, or other public property under his or herdiscretion or control for the private benefit or business benefit of the publicofficial, public employee, any other person, or principal campaign committee as definedin Section 17-22A-2, which would materially affect his or her financial interest, except asotherwise provided by law or as provided pursuant to a lawful employment agreementregulated by agency policy. "

Based on the facts as presented and the above law, it would be a conflict of interests and ause of office for personal gain for a Sheriffs Department to sublease a specified portion of aDeputy Sheriff's residence for a substation.

CONCLUSION

A Deputy Sheriff may not sublease a portion of his residence for use as a substation forthe Tuscaloosa County Sheriff s Department.

Robert SpenceAdvisory Opinion No. 96-93Page five

AUTHORITY

By 4 - 0 vote of the Alabama Ethics Commission on September 19, 1996.

mes T. PursellChairAlabama Ethics Commission

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