ETHICS COMMISSION

[Pages:5]I)

James T. Pursell, Chainnan

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

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

STATE OF ALABAMA

ETHICS COMMISSION

MAILING ADDRESS

P.O. BOX 4840 MONTGOMERY, AL

36103-4840

STREET ADDRESS

RSA UNION 100 NORTH UNION STREET

SUITE 104 MONTGOMERY, AL 36104

April 9, 1997

Hugh R. Evans, III Acting Director General Counsel

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

ADVISORY OPINION NO. 97- 22

J. R. Brooks

Attorney at Law Lanier, Ford, Shaver, & Payne, P.C. 200 West Side Square Suite 5000

Huntsville, Alabama 35801

Conflict Of Interests/Superintendent Of Board Of Education Recommending Transfer Of Spouse.

The Superintendent of the Attalla City Board of Education may not recommend to the Board of Education a change of his spouse's salary from a nine-month employment contract to a nine and one-half month

employment contract when the recommendation for the transfer and change in salary was made by a subordinate of the Superintendent.

The Superintendent of a Board of Education may not make recommendations affecting a spouse or family member's employment, unless there is an interview/ranking process conducted by an independent/impartial party or parties who do not answer to the Superintendent and where the Superintendent merely functions ministerially in passing the recommendation in order of ranked applicants to the School Board for selection.

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J. R. Brooks Advisory Opinion No. 97- 22 Page two

Dear Mr. Brooks:

The Alabama Ethics Commission is in receipt of your request for an Advisory Opinion of this Commission, and this opinion is issued pursuant to that request.

QUESTION PRESENTED

May the Superintendent of the Attalla City Board of Education recommend the change in his spouse's salary from a nine-month employment contract to a nine and one-half month employment contract without violating the Alabama Ethics Law?

FACTS AND ANALYSIS

James Crocker is the Superintendent for the Attalla City Board of Education. The President of the Board has asked for a formal opinion of the Ethics Commission concerning the transfer of James Crocker's spouse, Myra Crocker, from a nine-month contract to a nine and onehalf month contract. The circumstances of the transfer are as follows:

(1) The Superintendent's wife presently is a senior Counselor in job experience of the applicants who applied for the job;

(2) The previous employee who held the position of high school counselor was employed on a 190-day contract;

(3) The Board wants the high school counselor position to remain a 190-day contract;

(4) The Superintendent's wife is the principal's choice to fill the position as counselor under a 190-day contract;

(5) Previously, the Superintendent's wife's contract as elementary counselor required that she work 180 days;

(6) The high school counseling position is a 190-day contract;

(7) As a counselor with a 180 day contract, her salary was $34,473; and

(8) Her position as a counselor with a 190-day contract would be $36,388. This

J. R. Brooks Advisory Opinion No. 97- 22 Page three

represents an increase of $1,915 for the additional ten (10) days.

Mrs. Crocker has been transferred into the position of High School Counselor; however, her pay has not been increased to reflect the difference in the 18D-daycontract and the 190-day contract.

Mr. Crocker removed himself from the appointment process, but did make the recommendation to the School Board as required by law.

Section 16-12-16 and 16-24-5, Code of Alabama require that the City Superintendent recommend in writing all transfers of personnel. At the same time, this often comes into direct conflict with the Alabama Ethics Law.

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

"(a) No public official or public employee shall use or cause to be used his or her official position or office to obtain personal gain for himself or herself, or family member of the public employee or family member of the public official, or any business with which the person 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 member thereof receives, obtains, exerts control over, or otherwise converts to personal use the object constituting such personal gain."

Section 36-25-1(12) states:

"(12) FAMILY MEMBER OF THE PUBLIC OFFICIAL. The spouse, a dependent, an adult child and his or her spouse, a parent, a spouse's parents, a sibling and his or her spouse, of the public official."

Section 36-25-1(8) states:

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

J. R. Brooks Advisory Opinion No. 97- 22 Page four

Section 36-25-9(c) states:

" (c) No member of any county or municipal agency, board, or commission shall vote or participate in any matter in which the member or family member of the member has any financial gain or interest."

In Advisory Opinion No. 96-94, the Alabama Ethics Commission held that:

(I) An elected Superintendent of Education may not take an active role in recommending a family member as defined by Section 36-25-1(12) for a teaching position with that School System;

(2) A family member of an elected School Superintendent may seek and accept employment with that School System; provided, the School Superintendent did not use his or her position to influence the hiring of the family member; and that the Superintendent did not vote, attempt to influence, or otherwise participate in the selection process; and

(3) An elected Superintendent of Education may recommend her son for a Marketing Education position with the School System of which she serves as Superintendent before going outside the local district, when her son is the only certified person in the local area to apply; provided, the position is properly advertised and there is an interview/ranking process conducted by an independent/impartial party or parties who do not answer to the Superintendent; and where the Superintendent merely functions ministerially in passing the names in order of the previously ranked applicants on to the School Board for selection; and further provided, the Superintendent had no part in creating the vacancy.

In the facts before the Ethics Commission, it would appear that the principal who answers to the Superintendent has recommended that the Superintendent's wife be transferred and receive a raise in salary. The principal clearly is an individual who answers to the Superintendent of Education. Based on the fact that there has not been an impartial ranking process or recommendation process, the Superintendent may not recommend that his spouse's pay be extended ftom a nine-month contract to a nine and one-half month contract.

J. R. Brooks Advisory Opinion No. 97- 22 Page five

CONCLUSION

The Superintendent of the Attalla City Board of Education may not recommend to the Board of Education a change of his spouse's salary from a nine-month employment contract to a nine and one-half month employment contract when the recommendation for the transfer and change in salary was made by a subordinate of the Superintendent.

The Superintendent of a Board of Education may not make recommendations affecting a spouse or family member's employment, unless there is an interview/ranking process conducted by an independent/impartial party or parties who do not answer to the Superintendent and where the Superintendent merely functions ministerially in passing the recommendation in order of ranked applicants to the School Board for selection.

AUTHORITY

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

es T. Pursell Chair Alabama Ethics Commission

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