STATE OF ALABAMA

ETHICS COMMISSION

James T. Pursell, ChairmanHenry B. Gray III, Vice-ChairmanCamille S. Butrus

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

MAILING ADDRESS

P.O. BOX4840MONTGOMERY,AL

36103-4840

STREET ADDRESS

RSA UNION100 NORTHUNIONSTREET

SUITE 104MONTGOMERY,AL 36104 Hugh R. Evans, III

Acting DirectorGeneral Counsel

April 9, 1997 TELEPHONE (334) 242-2997

FAX (334) 242-0248

RECONSIDERATION OFADVISORY OPINION NO. 97-20

The Honorable Donald H. FoxJudge of ProbateProbate Court of Tallapoosa CountyTallapoosa County CourthouseDadeville, Alabama 36853

Earl N. Carter, Jr., PresidentAlabama Association of Clerks & RegistersRoom 606 Courthouse AnnexBessemer, Alabama 35020

Conflict Of Interests/State OfficialCollecting And Retaining PassportExecution Fees.

Public officials and public employeesauthorized to serve as Passport Agents forthe United States Government may collectand retain execution fees for the issuance ofpassports when the activity is authorized byFederal law and/or local act; providedhowever, that the ten dollar ($10.00) fee beused for any and all incidentals pertaining topassport issuance including, but not limitedto, postage and clerical assistance.

Dear Judge Fox:

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.

Honorable Donald H. Fox andEarl N. Carter, Jr.Advisory Opinion No. 97-20Page two

QUESTION PRESENTED

Maya State official authorized to collect execution fees for the issuance of U.S.passports, retain that fee as personal income?

FACTS AND ANALYSIS

On March 5, 1997, the Alabama Ethics Commission adopted Advisory Opinion No. 97-20. That opinion held that "Public officials and public employees authorized to serve as PassportAgents for the United States Government may collect execution fees for the issuance ofpassports; however, if the service is provided during the time the public official or publicemployee is being paid by the State of Alabama or a public entity within the State of Alabamathat execution fee must be paid over to the entity employing the public official or publicemployee unless authorized by local act."

Since the issuance of Advisory Opinion No. 97-20, there has been much concern andcontroversy over its implications.

The largest amount of interest and controversy has come from the Circuit Clerks of thevarious Judicial Circuits around the State of Alabama. On behalf ofthe Circuit ClerksAssociation, the Honorable Earl N. Carter, Jr. of the Tenth Judicial Circuit has requested thisopinion be revisited.

In his request for reconsideration, Mr. Carter states that "I cannot say how long clerkshave executed passports in the State of Alabama. There is at least one clerk who has performedthis service continually since entering office in 1971. Prior to the implementation of the JudicialArticle, many clerks were on the fee system so there was never any question as to the propriety ofclerks retaining fees for this service.

The question of passport execution fees being retained by circuit clerks first arose afterJanuary 16, 1977 when the Judicial Article placed all clerks on a salary basis. Hon. Billy Harbin,Circuit Clerk of Madison County and then President of the Alabama Association of Clerks andRegisters wrote for an Attorney General's opinion to clarify the matter. An opinion was issuedon May 3, 1977 that stated that 'because the fee was provided for by federal law, it was notaffected by the state's Act and could be charged.'

The various clerks authorized by the United States government to execute passports haveoperated under the 1977 opinion without any problems until 1996. At that time, an examiner

The Honorable Donald H. Fox andEarl N. Carter, Jr.Advisory Opinion No. 97-20Page three

employed by the Department of Public Examiners raised the issue while auditing the CircuitClerk of Lee County. Several of our association members met with Mr. Ron Jones, ChiefExaminer, and discussed the issue. Mr. Jones concluded that since federal law authorized thecollection and retention of the fee, and there being no state law to the contrary, we could continuethe practice as we had been doing.

Sometime back the federal statute was amended to add 'the judge or clerk of any probatecourt' in addition to those already authorized as 'clerk of any state court of record' to administeroaths for passport purposes.

This amendment attracted the attention of some probate judges so another opinion wassought from the Attorney General on the issue of collection and retaining passport executionfees. On October 8, 1996, the Attorney General opined that the fee could be collected andretained by any state official authorized to collect said fees by federal law. He further stated thatthe Ethics Commission should be contacted concerning the applicability of the Ethics Law.Subsequent to this opinion, another probate judge wrote the Ethics Commission for an opinion---- which brings us to where we are today."

Mr. Carter goes on to state that the Clerks Association did not intend to seek an opinionfrom the Ethics Commission because they felt very comfortable continuing the service that theyhave provided since time immemorial. He states that the practice of clerks executing passportsand retaining a fee for the same precedes the Judicial Article and the Ethics Law.

As the Attorney General stated in his 1996 opinion quoting from the Alabama CaseLaw, Mr. Carter states "The correct Rule is that an administrative interpretation of thegovernmental department for a number of vears is entitled to favorable consideration by thecourts." Mr. Carter further compares this practice to that long standing practice of probate judgescharging a fee for the performing of marriage services.

Mr. Carter asserts that it is the contention of the Clerks Association that they arespecifically authorized by federal statute to collect and retain the fees for the execution ofpassports and that there is no state law to the contrary.

Mr. Carter points out that the ten dollar fee charged for executing a passport application isnot all profit to the clerk, but that the clerk is responsible for forwarding all paperwork to thepassport office in New Orleans, which would include postage and envelopes. These fees comeout of the $10.00receivedby the clerk.

The Honorable Donald H. Fox andEarl N. Carter, Jr.Advisory Opinion No. 97-20Page four

Mr. Carter further states that what the clerk is actually doing is examining variousdocuments and the applicant under oath to make sure that the person applying for a passport isindeed entitled to a United States Passport. He states that this is a grave responsibility and thatno clerk would assume this duty without compensation. Important to point out is that Mr. Carterstates that most of the clerks who execute passports and collect fees use the money for variousitems in their office not covered by the State budget, and very few, if any clerks, convert thismoney for their personal benefit.

Another important point that Mr. Carter makes is that this service is provided to thecitizens of the State of Alabama. He states that in many areas of the State the Circuit Clerk is theonly local person citizens can go to for a passport, and that if the Circuit Clerk did not providethis service, the citizens would have to drive many miles just to find a city with a post officelarge enough to have a passport office. He states that in some areas of the State it would beeasier for a citizen to go to a city in an adjoining state to seek out this service.

Mr. Carter further points out that the Honorable Senator T.D. "Ted" Little is in theprocess of introducing a bill of statewide application which would specifically, by State law,authorize Circuit Clerks to retain passport execution fees.

Advisory Opinion No. 97-00005, adopted October 8, 1996, further held that "Theexecution fee for a U.S. passport may be collected and retained by any state official authorized tocollect said fees by federa11aw.. ."

Section 51.21, Title 22, Section 214 of the U.S. Code (1996) states that "The followingpersons are authorized by the Secretary to give oaths for passport purposes unless withdrawn bythe Secretary in an individual case. . . 7. Any other person specifically designated by theSecretary."

Section 214 further states that" . . . nothing contained in this section shall be construed tolimit the right of the Secretary of State, by regulation, (1) to authorize state officials to collectand retain execution fees . . ."

In addition, Title 22 of the Code of Federal Regulations, Section 51.61(b) (1991) providesfor the collection of a fee, by authorized state officials, when those services are rendered. Thissection states "Except as provided for in section 51.63(b), the fee for execution of an applicationfor a U.S. passport is $10.00, which shall be remitted to the U.S. Treasury when an application isexecuted before a Federal Official, but which may be collected and retained by any State officialbefore whom an application is executed. . ."

The Honorable Donald H. Fox andEarl N. Carter, Jr.Advisory Opinion No. 97-20Page five

Based on the above law and the facts as provided for reconsideration, Advisory OpinionNo. 97-20 as adopted on March 5, 1997 is hereby amended to state that public officials andpublic employees authorized to serve as Passport Agents for the United States Government, maycollect and retain execution fees for the issuance of passports when the activity is authorized byfederal law and/or local act.

CONCLUSION

Public officials and public employees authorized to serve as Passport Agents for theUnited States Government may collect and retain execution fees for the issuance of passportswhen the activity is authorized by Federal law and/or local act; provided however, that the tendollar ($10.00) fee be used for any and all incidentals pertaining to passport issuance including,but not limited to, postage and clerical assistance.

AUTHORITY

By 4 - 0 vote of the Alabama Ethics Commission on April 9, 1997.

~es T. PursellChairAlabamaEthicsCommission