STATE OF ALABAMA

ETHICS COMMISSIONMAILING ADDRESS

P.O. BOX 4840

MONTGOMERY, AL36103.4840

STREET ADDRESS

RSA UNION

100 NORTH UNION STREETSUITE 104

MONTGOMERY, AL 36104COMMISSIONERS

Nancy Edwards Eldridge, Chair

John H. Cooper, Esq., Vice-Chair

Cameron McDonald Vowell, Ph.D.

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

James L. Sumner, Jr.Director

TELEPHONE (334) 242-2997

FAJ«334)242~8WEB SITE www.ethics.alalinc.nel

April 4, 2007

ADVISORY OPINION NO. 2007-10

Mr. John D. Whetstone

City AttorneyCity of Gulf Shores216 West Laurel Avenue

Foley, Alabama 36535

Conflict Of Interest/City Council MemberVoting On Development Owned By EntityWith Which He Has Had Prior BusinessDealings

A member of the Gulf Shores City Council,who has previously sold property to ColonialProperties for development, may vote andparticipate in a development being puttogether by Colonial Properties, when thedevelopment is not located on the propertypurchased from the Council member, and isin no way related to that prior transactionbetween the Council member and ColonialProperties.

Dear Mr. Whetstone:

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.

'- --

Mr. John D. WhetstoneAdvisory Opinion No. 2007-10Page two

OUESTION PRESENTED

Maya member of the Gulf Shores City Council, who has previously had businessdealings with Colonial Properties, vote on matters concerning a development being put togetherby Colonial Properties on property that was not the subject of the transaction between the CityCouncil member and Colonial Properties?

FACTS AND ANALYSIS

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

Robert Craft is a member of the Gulf Shores City Council. Mr. Craft is the owner ofcertain real estate to the north of County Road 4, known as Craft Farms. Prior to becoming acouncilman, he sold a portion of that property to Colonial Properties, which has since beendeveloped into a mall known as the Pinnacle at Craft Farms. He has refrained from voting onany matter involving Colonial Properties since his election.

Mr. Craft was also the owner of Woodlands Golf Course, which he also sold to ColonialProperties. The Woodlands property is located approximately one (1) mile northwest of the mallproperty on County Road 6 and is totally separate from the Craft Farms development. Thistransaction occurred after Mr. Craft had become a councilman, and he has refrained from votingon any matter involving Colonial Properties since his election.

Mr. Craft has no relationship to Colonial Properties at this time and has been paid allmonies owed to him by Colonial Properties. He is on the Board of Directors of ColonialBancGroup, which is a different, unrelated corporation.

Colonial Properties has recently corne to the City to discuss matters involving an additionto their mall south of County Road 4, on properties not owned or which were never owned byMr. Craft. They are seeking substantial participation by the City in order to develop this portionof the mall. There will be substantial public benefit to the City if this mall is developed at thislocation. Mr. Craft possesses special knowledge in this particular area of development thatwould be valuable to the City and to the citizens of Gulf Shores.

Mr. Whetstone has been asked whether or not Mr. Craft could now vote on this new

portion of the mall not owned by him and unconnected in any way to his previous businessdealings with Colonial Properties.

Mr. John D. WhetstoneAdvisory Opinion No. 2007-10Page 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 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 chairsand vice-chairs or the equivalent offices of each state political party as defined inSection 17-16-2."

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 36-25-1(8) defines a conflict of interest as:

"(8) CONFLICT OF INTEREST. A conflict on the part of a public official orpublic employee between his or her private interests and the officialresponsibilities inherent in an office of public trust. A conflict of interest involvesany action, inaction, or decision by a public official or public employee inthe discharge of his or her official duties which would materially affect his or herfinancial interest or those of his or her family members or any business withwhich the person is associated in a manner different from the manner it affects theother members of the class to which he or she belongs."

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 constituting suchpersonal gain."

Mr. John D. WhetstoneAdvisory Opinion No. 2007-10Page four

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."

The fact that Mr. Craft has had prior business dealings with Colonial Properties in no wayimpacts on his ability to vote and otherwise participate in new developments being proposed byColonial Properties. The key determining factor is whether or not Mr. Craft stands to personallybenefit by his vote or participation in the matter.

In the facts before the Commission, all business transactions between Mr. Craft andColonial Properties have been concluded, and the development currently being considered is inno way related to those prior business dealings.

Likewise, the fact that Mr. Craft is a member of the Board of Directors of ColonialBancGroup, which is a different, unrelated corporation from Colonial Properties, does not makeColonial Properties a business with which he is associated.

Based on the facts as provided and the above law, a member of the Gulf Shores CityCouncil, who has previously sold property to Colonial Properties for development, may vote andparticipate in a development being put together by Colonial Properties, when the development isnot located on the property purchased from the Council member, and is in no way related to thatprior transaction between the Council member and Colonial Properties.

CONCLUSION

A member of the Gulf Shores City Council, who has previously sold property to ColonialProperties for development, may vote and participate in a development being put together byColonial Properties, when the development is not located on the property purchased from theCouncil member, and is in no way related to that prior transaction between the Council memberand Colonial Properties.

Mr. John D. Whetstone

Advisory Opinion No. 2007-10Page five

AUTHORITY

By 4-0 vote of the Alabama Ethics Commission on April 4, 2007.

Nancy EdChair ~Alabama Ethics Commission