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Ethically Speaking
Obtaining Advice from the Ethics Commission
Mark Boardman, Attorney, Boardman, Carr, Petelos, Watkins & Ogle P.C.
In the last issue of Ethically Speaking, we discussed that it is easy to obtain an Ethics Commission opinion. While the Ethics Commission enforces the Ethics Act, the Commission also educates on the law and works with citizens to ensure that citizens do not violate the Ethics Act.
Like a board of education, the Ethics Commission is made up of five members. These Commissioners serve five-year terms; one term ends each year.
As you know, the Ethics Commission deals with issues involving conflicts of interest or the use of office for personal gain. The Ethics Act governs both public officials and public employees. The Commission handles these issues through both its opinions process and its enforcement process.
The Commission can give guidance through either a Formal Advisory Opinion or an Informal Opinion. The two types of opinions significantly differ; it is important to understand the differences so that you know which one would be right for you if you have a question for the Commission.
Formal Advisory Opinions are written determinations voted on by the members of the Ethics Commission in a public meeting. Formal Advisory Opinions explain the Ethics Act and apply the Ethics Act to certain facts. Formal Advisory Opinions are public documents and are posted on the Commission’s website. The individual who receives the opinion is protected from
prosecution if the person’s conduct is consistent with the guidance provided in the Formal Advisory Opinion and if all the necessary facts were given to the Commission prior to the Commission rendering their opinion. Any other person who reasonably relies, in good faith, on a Formal Advisory Opinion in materially similar circumstances is also protected.
On the other hand, an Informal Opinion is meant to provide an individual with general information about an issue concerning the Ethics Act. Unlike Formal Advisory Opinions, Informal Opinions do not, by themselves, provide you with protection from prosecution and instead are only meant to provide general guidance. The Commission staff does not give Informal Opinions over the phone or through an office consultation; instead, all requests for Informal Opinions must be in writing. (An email is considered “in writing.”) The Commission gives no third-party opinions, meaning a citizen cannot ask for an Informal Opinion if a public official or public employee would violate the law if that person did (or did not) do something. Informal Opinions are not meant to “bless” past conduct and instead are meant to advise on future issues. Importantly, when you seek an Informal Opinion, the Commission’s Executive Director and General Counsel will
provide a written response. Both your request for and the resulting Informal Opinion will not be disclosed to others unless you authorize that.1
To request a Formal Advisory Opinion or an Informal Opinion, you may either email or write the Commission office to make the request. The email address is info@ethics.alabama.gov. The mailing address is P. O. Box 4840, Montgomery, Alabama 36103-4840. You should send your request to the attention of the Commission’s General Counsel. How long it takes for the Commission to answer the request depends on whether you seek a Formal Advisory Opinion or an Informal Opinion. Formal Advisory Opinions are voted on by the Commission at their regularly scheduled meetings held in February, April, June, August, October, and December of each year. Informal Opinions are answered as quickly as the Commission’s Executive Director and General Counsel can answer them, but that is not usually on the same day. If you feel your request to the Commission is taking too long, you may call and ask for an update on the request or for the status of the opinion.
With Informal Opinions, the Ethics Commission provides advice and information about issues you believe may be a problem in the future. Thus, the Ethics Commission is a resource to help you and can be used to help avoid potential future ethical issues.
The Ethics Act also authorizes the Commission’s Executive Director to pre-certify a function or activity. To obtain pre-certification, the individual must apply in writing to the Director at least ten calendar days before the function or activity is to take place and state the facts of the event or function. Unlike Informal Opinions, applications for pre-certification, as well as the action taken by the Executive Director, are not confidential; instead, they are posted on the Ethics Commission website. When an activity is pre-certified, a public official or public employee and their spouse may attend without violating the Ethics Act.2
The Ethics Act was amended by the Legislature in its last session. The next edition of Ethically Speaking will cover those changes.
References:
Alabama Administrative Code Section 340-x-1-.04
Attendance at the function or activity cannot, however, constitute accepting something to corruptly influence the public official or public employee. Alabama Administrative Code Section 340-x-1-.05(1).
The information on Formal and Informal Opinions comes from the Alabama Ethics Commission’s website. Thanks to Paige Sheridan, University of Alabama School of Law, 2024, for her assistance here.
