STATE OF ALABAMA

ETHICS COMMISSIONMAILING ADDRESS

P.O. BOX 4840

MONTGOMERY, AL

36103-4840

STREET ADDRESS

RSAUNION

100 NORTH UNION STREET

SUITE 104

MONTGOMERY, AL 36104COMMISSIONERSJames Jerry Wood, Esq.Stewart Hill Tankersley, M.D.Frank C. "Butch" Ellis, Jr., Esq.Jerry L. Fielding, ReI. Sf. Circuit JudgeCharles Price, ReI. Circuit Judge

Thomas B. AlbrittonExecutive Director

TELEPHONE (334) 242-2997FAX (334) 242-0248

WEB SITE: www.ethics.alabama.gov

April 6, 2016

ADVISORY OPINION NO. 2016-10

Mr. Patrick H. Boone215 Richard Arrington, Jr. Blvd. North705 New South Federal Savings BuildingBirmingham, Alabama 35203-3720

Conflict Of Interest/N ewly AppointedMember Of Vestavia Hills Board OfEducation Employed By Company DoingBusiness With The Board Of Education

An individual employed by a business undercontract with the Vestavia Hills Board ofEducation may not vote, attempt toinfluence or in any manner participate ineither an ongoing contract between theBoard and the employer, or any newcontracts or other business interactionsbetween the Board and the employer.

Any contract entered into between a publicofficial and his or her employer, which ispaid in whole or in part out of state, countyor municipal funds, must be filed with theAlabama Ethics Commission within ten (10)days of the contract having been enteredinto.

Mr. Patrick H. BooneAdvisory Opinion No. 2016-10Page two

Dear Mr. Boone:

The Alabama Ethics Commission is in receipt of your request for a formal AdvisoryOpinion of this Commission, and this opinion is rendered pursuant to that request.

QUESTION PRESENTED

Under the Ethics Law, what limitations are placed on a Board member whose employerdoes business with the Board on which he serves?

FACTS AND ANALYSIS

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

Patrick H. Boone is the attorney for the Vestavia Hills Board of Education. The Board ofEducation is a public entity organized under the laws of the State of Alabama. The five membersof the Board are appointed by the City Council. They serve on a voluntary basis and areuncompensated. The Board is a public entity and its Board members are public officials asdefined by Alabama law.

On April 1,2015, the State of Alabama Department of Education and Teklinks, Inc., anAlabama corporation, entered into a contract for facilitating and the administration of thepurchase or lease of information technology services.

Ala. Code § 16-61E-2 permits school districts to enter joint purchasing agreements forthe lease or purchase of "information technology." The Board of Education of the City ofVestavia Hills does business with Teklinks pursuant to this Code section.

In December of 20 15, a vacancy opened up on the Board of Education. Thirteen citizensapplied for the vacancy and the Council interviewed all thirteen people. In February theyappointed David Powell to fill the unexpired term. Mr. Powell is employed by Teklinks as VicePresident of Marketing and Strategic Development.

The current contract between the Board of Education and Teklinks was entered into priorto Mr. Powell's appointment.

It is important to point out two things. First, Ethics Opinions must be prospective innature. The Commission cannot render an opinion on something that has already occurred. This

Mr. Patrick H. BooneAdvisory Opinion No. 2016-10Page three

opinion is prospective in the respect that Mr. Powell and Mr. Boone are asking what Mr. Powellmay do now that he has been appointed to the Board of Education in relation to his employer.

Second, Mr. Powell did not ask for an opinion regarding whether he could be appointedto the Board of Education in the first place. For that reason, that issue, as it is not prospective, isnot addressed in this Opinion.

The question presented involves various aspects of the Ethics Law and whether or notMr. Powell would be in violation of those Sections. Ala. Code § 36-25-5(a) states:

"(a) 0 public official or public employee shall use or cause to be used his or her officialposition or office to obtain personal gain for himself or herself, or family member of thepublic employee or family member of the public 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 the public official, public employee, or a family memberthereof receives, obtains, exerts control over, or otherwise converts to personal use theobject constituting such personal gain."

"No member of any county or municipal agency, board, or commission shall vote orparticipate in any matter in which the member or family member of the member has anyfinancial gain or interest."

Ala. Code § 36-25-1 (8) defines a conflict of interests as:

"A conflict on the part of a public official or public employee between his or her privateinterests and the official responsibilities inherent in an office of public trust. A conflict ofinterest involves any action, inaction, or decision by a public official or public employeein the 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 with which theperson is associated in a manner different from the manner it affects the other membersof the class to which he or she belongs."

Ala. Code § 36-25-11 states:

"Unless exempt pursuant to Alabama competitive bid laws or otherwise permitted bylaw, no public official or public employee, or a member of the household of the publicemployee or the public official, and no business with which the person is associated shallenter into any contract to provide goods or services which is to be paid in whole or in partout of state, county, or municipal funds unless the contract has been awarded through a

Mr. Patrick H. BooneAdvisory Opinion No. 2016-10Page four

process of competitive bidding and a copy of the contract is filed with the commission.All such contract awards shall be made as a result of original bid takings, and no awardsfrom negotiations after bidding shall be allowed. A copy of each contract, regardless ofthe amount, entered into by a public official, public employee, a member of thehousehold of the public employee or the public official, and any business with which theperson is associated shall be filed with the commission within 10 days after the contracthas been entered into."

The question presented is whether Mr. Powell, by continuing to serve on the Board ofEducation and in light of his employer's contract with the Board, will violate any provisions ofthe Alabama Ethics Law, and asks for any specific conditions or guidelines that Mr. Powellshould follow.

The Ethics Law is designed to prevent the use of one's public office for the personalbenefit of themselves, a member of their family or a business with which they are associated. Asan employee of Teklinks, Teklinks is a business with which Mr. Powell is associated. Therefore,Mr. Powell can do nothing in his official position to benefit Teklinks.

More specifically, ifissues develop between Teklinks and the Board of Educationinvolving the current contract or any other contract or issue, Mr. Powell may not vote, attempt toinfluence or in any manner participate in any discussions regarding that contract or issue. Hecannot participate in any renewal or modification of the contract. He cannot participate indiscussions regarding the contract with members of the Board. In addition, as the contract isbetween a public entity and the employer of a public official, that contract must be filed with theAlabama Ethics Commission within ten (10) days of its having been entered into.

CONCLUSION

An individual employed by a business under contract with the Vestavia Hills Board ofEducation may not vote, attempt to influence or in any manner panicipate in either an ongoingcontract between the Board and the employer, or any new contracts or other business interactionsbetween the Board and the employer.

Any contract entered into between a public official and his or her employer, which is paidin whole or in part out of state, county or municipal funds, must be filed with the Alabama EthicsCommission within ten (10) days of the contract having been entered into.

Mr. Patrick H. BooneAdvisory Opinion No. 2016-10Page five

AUTHORITY

By 5-0 vote of the Alabama Ethics Commission on April 6, 2016.

J y L. Fielding, Ret. Circuit JudgChairAlabama Ethics Commission