STATE OF ALABAMA

ETHICS COMMISSION

COMMISSIONERS Jerry L. Fielding. Ret. Sr. Circuit Judge, Chair Frank C. "Butch" Ellis, Jr ., Esq., Vice-Chair Charles Price, Rot. Circuit Judge Beverlye Brady, Esq. John Plunk, Esq.

Mr. Grant Blackburn Blackburn & Conner, P.C. Post Office Box 458 Bay Minette, AL 36507

Dear Mr. Blackburn:

MAILING ADDRESS

P.O. BOX 4840

MONTGOMERY. AL

36103-4840

STREET ADDRESS

RSA UNION

100 NORTH UNION STREET

SUITE 104

MONTGOMERY. AL 36104 Toom~s B. Albritton Executive Director

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

WEB SITE: www.ethics.alabama.gov

February 6, 2019

ADVISORY OPINION NO. 2019-01

Use of Office for Personal Gain/Use of Confidential Information

If elected to the position of Revenue Commissioner, under the facts presented the public official may bid on tax delinquent properties at tax sales conducted by revenue commissioners in counties other than the one to which he is elected, as can a member of his family , and exercise the rights relative to that ownership that are available to the general public provided that he and they not violate Ala. Code§§ 36-25-5 and 8.

The Alabama Ethics Commission is in receipt of your request for a formal Advisory Opinion of this Commission on behalf of Mr. Tyler Prescott and this opinion is issued pursuant to that request.

FACTS

Mr. Prescott supplied and confirms the following facts are correct: he currently invests in real estate, including properties sold for delinquent taxes by county revenue commissioners/tax collectors. He is interested in numing for Clarke County Revenue Commissioner. As Revenue Commissioner, he would have access to data within his own county that he could conceivably manipulate (such as the appraised value of property, hi s office ' s response to property that is still within the redemptive period, the degree to which delinquent payers are contacted, etc. ). For that reason, he states that if elected he would not invest in property in Clarke County.

Mr. Grant Blackburn Advisory Opinion No. 2019-01 Page 2

Regarding property outside Clarke County, Alabama, as Revenue Commissioner he would not have access to any information that isn ' t available to the average citizen. Information regarding unpaid property taxes are readily available online, and all of the information he could use is public information. Therefore, his potential position as the Clarke County Revenue Commissioner would not in and of itself give him an inside advantage with respect to property outside Clarke County. He would have relationships, presumably, with other Revenue Commissioners throughout the state.

QUESTIONS PRESENTED

1. If elected, could Mr. Prescott continue to invest in properties sold for taxes by revenue commissioners/tax collectors in counties other than those in the County he serves?

2. Would Mr. Prescott be required to divest himself of all interests in tax liens and tax deeds pertaining to property in Clarke County as a condition to running for the office of Revenue Commissioner?

3. Could Mr. Prescott run for the office of Revenue Commissioner if his father continues to hold tax liens in Clarke County?

4. If elected as Clarke County Revenue Commissioner, could Mr. Prescott continue to hold and exercise his rights under tax lien investments in other counties throughout the State?

5. If elected as Clarke County Revenue Commissioner, could Mr. Prescott acquire new tax lien investments (including tax sale certificates and tax deeds) in other counties through the State?

6. If elected as Clarke County Revenue Commissioner, could Mr. Prescott ethically prosecute his interests in tax lien investments in other counties in the State, including bringing actions in court to compel the possession and ownership of parcels subject to his property tax liens?

ANALYSIS

If Mr. Prescott were to run and be elected to Revenue Commissioner for Clarke County, he would be a public official. His father would be a "family member" for purposes of the Ethics

Mr. Grant Blackbum Advisory Opinion No. 2019-01 Page 3

laws. 1 Their respective businesses would be "businesses with which [he] is associated."2 Mr Prescott's questions focus essentially on the existence of a conflict of interest as Revenue Commissioner. Under the ethics laws, a public official may have a conflict of interest, but may not act in spite of that conflict of interest in a way that provides illegal personal gain for the official, his or her family, or any business with which they are associated without violating the Ethics laws.

To specifically address the questions in order:

1. May an elected revenue commissioner bid on tax delinquent properties at tax sales conducted by revenue commissioners in counties other than the one to which he is elected?

An elected revenue commissioner may bid on tax delinquent properties in counties other than the one to which he is elected within the following restrictions: he cannot use confidential information regarding delinquent properties in his or other counties to aid him in his bidding. He cannot use his position (including official equipment, facilities , time, materials, human labor, or other public property under his discretion or control) for his or others' private or business benefit because doing so would violate Ala. Code§§ 36-25-53 and 84. This means that if elected he

1 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. 2 BUSINESS WITH WHICH THE PERSON IS ASSOCIATED. Any business of which the person or a member of his or her family is an officer, owner, partner, board of director member, employee, or holder of more than five percent of the fair market value of the business. 3 § 36-25-5. Use of official position or office for personal gain.

(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 famil y member thereof receives, obtains, exerts control over, or otherwise converts to personal use the object constituting such personal gain .

(c) No public official or public employee shall use or cause to be used equipment, facilities, time, materials, human la bor, or other public property under his or her discretion or control for the private benefit or business benefit of the public official, public employee, any other person, or principal campaign committee as defined in Section l 7-22A-2, wh ich would materially affect his or her financial interest, except as otherwise provided by law or as provided pursuant to a lawful employment agreement regulated by agency policy. Provided, however, nothing in this subsection shall be deemed to limit or otherwise prohibit communication between public officials or public employees and eleemosynary or membership organizations or such organizations communicating with public officials or public employees.

(d) No person shall solicit a public official or public employee to use or cause to be used equipment, facilities, time, materials, human labor, or other public property for such person 's private benefit or business benefit, which would materially affect his or her financial interest, except as otherwise provided by law.

1 § 36-25-8 . Use or disclosure of confidential information for private financial gain .

Mr. Grant Blackburn Advisory Opinion No. 20I9-01 Page 4

cannot do research, make contacts, etc. using official resources including personnel in furtherance of this business. He cannot use his connections or relationships with other Revenue Commissioners to obtain gain for himself, his family, or a business with which he is associated in violation of the Ethics laws. His father cannot solicit him to violate the laws in this way. This general guidance applies to all of Mr. Prescott's questions.

2. Would Mr. Prescott be required to divest himself of all interests in tax liens and tax deeds pertaining to property in Clarke County as a condition to running for the office of Revenue Commissioner?

Whether Mr. Prescott must divest himself of all interests in tax liens and tax deeds to property in Clarke County as a condition to running is an issue that is outside the jurisdiction of the Commission to answer. Moreover, he stated in his request that he would not invest in property in Clarke County if elected. If elected, however, and if the property is still within the redemptive period, then he could not use his position to benefit himself, a family member or a business with which he is associated in violation of the general guidance provided in the answer to question " l .''

3. Could Mr. Prescott run for the office of Revenue Commissioner if his father continues to hold tax liens in Clarke County?

Again, this question is outside of the jurisdiction of the Commission to answer. If elected, his father would be a "family member" under the ethics laws and the general guidance provided in the answer to question "l" would apply here, as well.

4. If elected as Clarke County Revenue Commissioner, could Mr. Prescott continue to hold and exercise his rights under tax lien investments in other counties throughout the State?

Yes, he may continue to hold and exercise his rights under tax lien investments in other counties throughout the State within the restrictions of the general guidance provided in the answer to question ··1."

5. If elected as Clarke County Revenue Commissioner, could Mr. Prescott acquire new tax lien investments (including tax sale certificates and tax deeds) in other counties through the State?

No public official, public employee, former public official or former public employee, for a period consistent with the statute of limitations as contained in this chapter, shall use or disclose confidential information gained in the course of or by reason of his or her position or employment in any way that could result in financial gain other than his or her regular salary as such public official or public employee for himself or herse lt: a family member of the public employee or family member of the public official, or for any other person or business.

Mr. Grant Blackbum Advisory Opinion No. 2019-01 Page 5

Yes, he may acquire new tax lien investments (including tax sale certificates and tax deeds) in other counties through the State within the restrictions of the general guidance provided in the answer to question " 1."

6. If elected as Clarke County Revenue Commissioner, could Mr. Prescott ethically prosecute his interests in tax lien investments in other counties in the State, including bringing actions in court to compel the possession and ownership of parcels subject to his property tax liens?

Yes, he may prosecute his interests in tax lien investments in other counties in the State, including bringing actions in court to compel the possession and ownership of parcels subject to his property tax liens within the restrictions of the general guidance provided in the answer to question " 1."

CONCLUSION

If elected to the position of Revenue Commissioner, under the facts presented the public official may bid on tax delinquent properties at tax sales conducted by revenue commissioners in counties other than the one to which his is elected, as can a member of his family, and exercise the rights relative to that ownership that are available to the general public provided that he and they not violate Ala. Code §§ 36-25-5 and 8.

AUTHORITY

By 5-0 vote of the Alabama Ethics Commission on February

Alabama Ethics Commission

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