STATE OF ALABAMA

ETHICS COMMISSION

COMMISSIONERS

Henry B. Gray III, ChairmanCamille S. Butrus, Vice-Chairman

Helen Shores Lee, Esq.John H. Watson

Lewis G. adorn, Jr., Esq.

MAILING ADDRESS

P.O. BOX4840MONTGOMERY.AL

36103-4840

STREET ADDRESS

RSA UNION100 NORTHUNIONSTREET

SUITE 104MONTGOMERY.AL 36104 James L. Sumner, Jr.

Director

Hugh R. Evans, IIIAssistant DirectorGeneral Counsel

TELEPHONE (334) 242-2997

FAX (334) 242-0248

May 6, 1998

ADVISORY OPINION NO. 98-25

The Honorable James B. JohnsonSheriffBaldwin CountyPost Office Box 1709Bay Minette, Alabama 36507

Conflict Of Interests/Deputy Sheriff ServingCivilPapers For Attorneys During Off-DutyHours.

A Deputy Sheriff may not serve civil papersfor attorneys during his off-duty hours, asthis is a function of and responsibilityof theSheriff's Department.

Dear Sheriff Johnson:

The AlabamaEthics Commissionis in receipt of your request for an AdvisoryOpinion ofthis Commission, and this opinion is issued pursuant to that request.

OUESTION PRESENTED

Maya Deputy Sheriff serve civilpapers during his off-duty hours for attorneys if he/sheacts as a private citizen and not under the colors of office as a Deputy Sheriff?

--- --- --- -------

SheriffJames B. JohnsonAdvisory Opinion No. 98-25Page two

FACTS AND ANALYSIS

James B. Johnson is the Sheriffof Baldwin County, Alabama. His office has received arequest trom one of its Deputies, who is assigned to the CriminalControl Division, for permissionto serve civil papers on his off-duty time. The Deputy stated that his brother, who is a practicingattorney in Baldwin County, would pay him for serving certain civilpapers ftom time to time.The Baldwin County Sheriff's Office is large enough to have a separate CivilDivision,which isstaffed by Deputies, whose primary responsibilitiesare to serve civilpapers. From time to timeand owing to unusual hours that certain civil papers may have to be served, Deputies assigned tothe CriminalDivisionPatrol Division may also have to serve civilpapers. SheriffJohnson statesthat this is the exception rather than the rule.

On June 1, 1990, the AlabamaEthics Commission rendered Advisory OpinionNo. 90-48,which prohibits Deputy Sheriffsand MunicipalPolice Officers ftom serving civilprocessdocuments during their off-duty hours. In that opinion, the Ethics Commission cited Section 36-22-3, Code of Alabam~ 1975, which states that the Sheriffis required to "execute and return theprocess and orders of the Courts of Record of this State and of officers of competent authoritywith due diligencewhen delivered to himfor that purpose according to law."

Clearly, a conflict of interests exists for an individualto do, in his off-time, what hisDepartment is required to do to begin with.

On November 6, 1989, the Office of Attorney General issued Advisory OpinionNo. 217,Ala. Op. Atty. Gen. 22, which stated that:

"A Deputy Sheriff in Baldwin County may also engage in the private business ofproviding investigative services, where such services are limited to civilmatters."

This opinion of the Attorney General pointed-out that a potential conflict of interestsmight exist and that the public officer or employee should not place himselfin a situation where aconflict of interests will exist, that is, where his private interest conflictswith his public duty.

Further, on April 28, 1994, the Attorney General rendered Advisory OpinionNo. 235,Ala. Op. Atty. Gen. 33, which stated that:

"A Deputy Sheriffmay not obtain outside employment to investigate criminalmatters, nor should the Deputy Sherltl: in any way, place himselfor his business ina position that would pose a conflict of interest or the potential for a conflict ofinterests with his duties as a Deputy Sheriff. Under these facts, a Deputy Sheriffmay not accept compensation trom a private source for investigating criminalactivity during his off-duty hours."

SheriffJames B. JohnsonAdvisory OpinionNo. 98-25Page three

The opinion of the Attorney General further noted that the work in question would bewithin the jurisdiction of the Sheriff for whom the Deputy works.

The AlabamaEthics Law, Code of Alabam~ 1975, Section 36-25-1(8) defines a conflictof interests as:

"(8) CONFLICT OF INTEREST. A conflict on the part of a public officialorpublic employeebetween his or her private interests and the officialresponsibilitiesinherent in an office of public trust. A conflict of interest involves any action,inaction, or decision by a public officialor public employee in the discharge of hisor her officialduties which would materially affect his or her financial interest orthose of his or her familymembers or any business with which the person isassociated in a manner different from the manner it affects the other members ofthe class to which he or she belongs."

Section 36-25-5(a) states:

"(a) No public officialor public employee shalluse or cause to be used his or herofficialposition or office to obtain personal gain for himselfor herself, or familymember of the public employee or familymember of the public official,or anybusiness with which the person is associated unless the use and gain are otherwisespecificallyauthorized by law. Personal gain is achievedwhen the public official,public employee, or a familymember thereof receives, obtains, exerts control over,or otherwise converts to personal use the object constituting such personal gain."

Section 36-25-5(c) states:

"(c) No public officialor public employee shalluse 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 public official,public employee, any other person, or principal campaigncommittee as defined inSection 17-22A-2, which would materiallyaffect his or her financial interest,except as otherwise provided by law or as provided pursuant to a lawfulemployment agreement regulated by agency policy."

An inherent conflict of interests exists for a Deputy Sheriffto do in his off-duty hours whathis agency is required to do by law. While a Deputy Sheriffshould be allowed opportunities foroutside income, he may not accept employmentthat would provide a direct conflictwith hisprimary employment, as is the situation here.

SheriffJames B. JohnsonAdvisory OpinionNo. 98-25Page four

CONCLUSION

A Deputy Sheriffmay not serve civil papers for attorneys during his off-duty hours, as this isa function of and responsibilityof the Sheriff's Department.

AUTHORITY

By.i:Q vote of the Alabama Ethics Commission on May 6, 1998.

He ,ChairAlabamaEthics Commission

--