STATE OF ALABAMA

ETHICS COMMISSIONMAILING ADDRESS

P.O. BOX4840MONTGOMERY.AL

36103-4840

STREET ADDRESS

RSA UNION100 NORTHUNIONSTREET

SUITE 104MONTGOMERY.AL 36104COMMISSIONERS

Helen Shores Lee, Esq., ChairmanJohn H. Watson, Vice-ChairmanLewis G. Odom, Jr., Esq.Russell Jackson Drake, Esq.J. Harold Sorrells

James L. Sumner, Jr.Director

Hugh R. Evans, IIIAssistant Director

General Counsel

TELEPHONE (334) 242-2997

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

October 6, 1999

ADVISORY OPINION NO. 99-43

Don KellyExecutive DirectorTuscaloosa County Park and Recreation AuthorityPost Office Box 2496Tuscaloosa, Alabama 35403

Conflict Of Interests/Personal Gain/Park

And Recreation Authority Board MemberDonating Construction Services To ParkAnd Recreation Authority.

The Tuscaloosa County Park and RecreationAuthority may accept and a member of theBoard of the Tuscaloosa County Park andRecreation Authority may provideconstruction services to the Authority for theconstruction of recreational facilities at nocost; provided, that no particular course ofaction is required as a condition to thereceipt of the volunteer services.

Dear Mr. Kelly:

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.

Don KellyAdvisory Opinion No. 99-43Page two

OUESTION PRESENTED

Is the Tuscaloosa County Park and Recreation Authority prohibited fromaccepting a gift of services from a member of the Board by Section 36-25-11,Code of Alabama. 1975, or any other provision of the State Ethics Act?

FACTS AND ANALYSIS

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

The Tuscaloosa County Park and Recreation Authority (TCPARA) was created by Act1248 of the 1969 Regular Session, as amended by Act 265 of the 1977 Regular Session. It has astatutorily created Board of Directors composed of citizens who serve without compensation inorder to fulfill civic responsibilities.

The Authority is developing additional recreational facilities to help meet a communityneed. One of the Board members, Mr. Roland Pugh, wishes to donate certain constructionservices in this effort (such as grading and clearing of land) either individually or performedpursuant to a written instrument whereby the Board member would obtain adequate liability andworker's compensation insurance, ensure that the work complied with applicable laws, andindemnify TCPARA for any liability claims. The value of the services will likely exceed$50,000.00.

TCPARA will not expend any funds nor provide any remuneration of any type, kind orcharacter (directly or indirectly) in this matter, as it is the desire of the Board member that theseservices shall be provided free of charge and without any compensation whatsoever. Theseservices are intended to be a true charitable gift without any expectation in return.

Since TCPARA is a public, non-profit entity, the decision to accept the gift will be madeby the Board outside of the presence of the Board member in question, and as such, the Boardwill thus be composed entirely of individuals unrelated to and not under the control of themember.

The Alabama Ethics Law, Code of Alabama. 1975, Section 36-25-5(a) states:

n(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 are otherwise

Don KellyAdvisory Opinion No. 99-43Page three

specifically authorized by law. Personal gain is achieved when the public official,public employee, or a family member thereof receives, obtains, exerts controlover, or otherwise converts to personal use the object constituting such personalgain."

Section 36-25-1(31)(a) defines a "thing of value" as:

"(31) THING OF VALUE.

a. Any gift, benefit, favor, service, gratuity, tickets or passes to an entertainment,social or sporting event offered only to public officials, unsecured loan, other thanthose loans made in the ordinary course of business, reward, promise of futureemployment, or honoraria."

Section 36-25-11 states:

"Unless exempt pursuant to Alabama competitive bid laws or otherwise permittedby law, no public official or public employee, or a member of the household of thepublic employee or the public official, and no business with which the person isassociated shall enter into any contract to provide goods or services which is to bepaid in whole or in part out of state, county, or municipal funds unless the contracthas been awarded through a process of competitive bidding and a copy of thecontract is filed with the commission. All such contract awards shall be made as aresult of original bid takings, and no awards from negotiations after bidding shallbe allowed. A copy of each contract, regardless of the amount, entered into by apublic official, public employee, a member of the household of the publicemployee or the public official, and any business with which the person isassociated shall be filed with the commission within 10 days after the contract hasbeen entered into."

Section 36-25-11 is not applicable in this fact scenario, as there is no contract that isbeing paid out of public funds. In addition, Section 36-25-5(a) would present no prohibition, asthere is no personal gain accruing to the Board member providing the construction services.

Based on the facts as provided and the above law, the Tuscaloosa County Park andRecreation Authority may accept and a member of the Board of the Tuscaloosa County Park andRecreation Authority may provide construction services to the Authority for the construction ofrecreational facilities at no cost; provided, that no particular course of action is required as acondition to the receipt of the volunteer services.

Don KellyAdvisory Opinion No. 99-43Page four

CONCLUSION

The Tuscaloosa County Park and Recreation Authority may accept and a member of theBoard of the Tuscaloosa County Park and Recreation Authority may provide constructionservices to the Authority for the construction of recreational facilities at no cost; provided, thatno particular course of action is required as a condition to the receipt of the volunteer services.

AUTHORITY

By 5-0 vote of the Alabama Ethics Commission on October 6, 1999.

elen Shores LeeChairAlabama Ethics Commission