STATE OF ALABAMA

ETHICS COMMISSIONMAILING ADDRESS

P.O. BOX4840MONTGOMERY,AL

36103-4840

STREET ADDRESS

RSA UNION100 NORTHUNIONSTREET

SUITE104MONTGOMERY,AL 36104COMMISSIONERS

John H. Watson, ChainnanLewis G. adorn, Jr., Esq., Vice-ChainnanRussell Jackson Drake, Esq.J. Harold Sorrells

Raymond L. Bell, Jr., Esq.

James L. Sumner, Jr.Director

TELEPHONE (334) 242-2997

FAX (334) 242-0248WEB SITE www.ethics.alalinc.net

December 6, 2000

ADVISORY OPINION NO. 2000-63

Susan AllenAssistant Director

Alabama Electronic Benefit Transfer (EBT) ProjectAlabama Department of Human Resources50 N. Ripley StreetMontgomery, Alabama 36130

Personal GainlPublic Employee WinningDoor Prize While Attending Conference/Seminar In His Or Her Official Capacity.

The Assistant Director of the AlabamaElectronic Benefit Transfer Project for theAlabama Department of Human Resourcesmay accept a door prize won in conjunctionwith her attendance at a conference/seminarwhich she attended as a representative of theDepartment of Human Resources; provided,that acceptance of the door prize required noaffirmative action on her part; that it is notgiven in exchange for official action; and,where the door prize is incidental to herattendance at the conference/seminar.

It should be noted that this AdvisoryOpinion is addressed to the specific factsand circumstances contained within. It doesnot address door prizes in a broad sense, butis specific to these facts.

Susan AllenAdvisory Opinion No. 2000-63Page two

Dear Ms. Allen:

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

OUESTION PRESENTED

Maya public official/public employee accept a door prize won incidentally to his or herattendance at a conference/seminar when he or she is attending the conference/seminar as arepresentative of his or her employer and whose expenses and salary are being paid by his or heremployer?

FACTS AND ANALYSIS

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

Susan Allen is the Assistant Director of the Alabama Electronic Benefit Transfer Project(EBT) for the Alabama Department of Human Resources (DHR).

The Alabama Department of Human Resources has a contract with Citibank for thedelivery of EBT services. Citibank subcontracts the data processing portion of the contract toeFunds Corporation.

Recently, eFunds Corporation sponsored their annual conference for the companies,banks, organizations, and state governments for whom they do data processing. The conferencedealt with recently-published federal regulations for EBT services which directly impact DHR aswell as upcoming technological changes taking place in eFunds.

Ms. Allen was approved to attend the conference with DHR reimbursing her for 50% ofher expenses and federal funds from the United States Department of Agriculture, Food andNutrition Service reimbursing the other 50%.

Ms. Allen was attending the conference as a representative of the Department of HumanResources and was paid her normal salary while attending.

Upon registration at the conference, all attendees' names were automatically placed in abowl for door prize drawings. Names were drawn at each of the two dinners for a variety of doorprizes ranging from shirts to other items including American Express gift certificates for various

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Susan AllenAdvisory Opinion No. 2000-63Page three

amounts. Ms. Allen's name was drawn for the last prize which was ten (10) one hundred dollarAmerican Express gift certificates.

The Alabama Ethics Law, Code of Alabama. 1975, Section 36-25-1(24) defines a publicofficial as:

"(24) PUBLIC OFFICIAL. Any person elected to public office, whether or notthat person has taken office, by the vote of the people at state, county, ormunicipal level of government or their instrumentalities, including governmentalcorporations, and any person appointed to a position at the state, county, ormunicipal level of government or their instrumentalities, including governmentalcorporations. For purposes of this chapter, a public official includes the chairsand vice-chairs or the equivalent offices of each state political party as defined inSection 17-16-2."

Section 36-25-1(23) defines a public employee as:

"(23) PUBLIC EMPLOYEE. Any person employed at the state, county, ormunicipal level of government or their instrumentalities, including governmentalcorporations and authorities, but excluding employees of hospitals or other healthcare corporations including contract employees of those hospitals or other healthcare corporations, who is paid in whole or in part from state, county or municipalfunds. For purposes of this chapter, a public employee does not include a personemployed on a part-time basis whose employment is limited to providingprofessional services other than lobbying, the compensation for which constitutesless than 50 percent of the part-time employee's income."

Section 36-25-5(a) states:

"(a) No public official or public employee shall use or cause to be used his or herofficial position or office to obtain personal gain for himself or herself, or familymember of the public employee or family member of the public official, or anybusiness with which the person is associated unless the use and gain areotherwise specifically authorized by law. Personal gain is achieved when thepublic official, public employee, or a family member thereof receives, obtains,exerts control over, or otherwise converts to personal use the object constitutingsuch personal gain."

Susan Allen

Advisory Opinion No. 2000-63Page four

Section 36-25-2(a)(3) states:

"(a) The Legislature hereby finds and declares:

(3) No public office should be used for private gain other than the remunerationprovided by law."

Section 36-25-1(3l)(a) defines a thing of value as:

"(31) THING OF VALUE.

a. Any gift, benefit, favor, service, gratuity, tickets or passes to an entertainment,social or sporting event offered only to public officials, unsecured loan, other thanthose loans made in the ordinary course of business, reward, promise of futureemployment, or honoraria."

Section 36-25-1(3l)(b) states in pertinent part:

"b. The term, thing of value, does not include any of the following, provided thatno particular course of action is required as a condition to the receipt thereof. . ."

In January of 1996, the Ethics Commission rendered Advisory Opinion No. 96-02 whichdealt with the receipt of frequent flier miles by State employees traveling on State business. Thatopinion held that:

"A public employee may not collect frequent flier points obtained while travelingon State business and use them for personal travel."

This opinion went on to state that:

"The Alabama Ethics Law strictly prohibits a public employee from using his orher office for personal gain. It is the opinion of the Alabama Ethics Commissionthat frequent flier points, which are obtained by a public employee while travelingon public business, are the property of the public employer, whether that employerbe State, local or municipal in nature."

The opinion further stated that:

"In accord with this opinion is Case No. B-25 75 25 issued on November 30, 1994by the Comptroller General of the United States which held that frequent flier

Susan AllenAdvisory Opinion No. 2000-63Page five

mileage credits obtained as a result of official travel are the property of thegovernment."

"For a public employee to collect, retain and use frequent flier points that areobtained as a result of public employment and to convert them to personal usewould clearly be a violation of the Alabama Ethics Law."

The opinion was adopted by unanimous vote.

In March of 1998, the Alabama Legislature adopted House Bill 45, which directlyimpacted Advisory Opinion No. 96-02. That bill, in pertinent part, states:

"Any other law to the contrary notwithstanding, a public official or a publicemployee may receive, obtain, or otherwise convert to personal use a bonus that isincidental to travel in the performance of official duties of the public official orpublic employee if the bonus is individual in nature and not able to be transferredto another unrelated individual or to the state, or a county, municipality, orgovernmental entity. This section is declaratory of and does not constitute achange in existing law."

The issue before the Commission is whether or not any action was required on the part ofthe public employee in exchange for winning the gift certificates. In other words, was there aquid pro quo?

From the facts as presented, it appears that all attendees were automatically registered forthe door prizes at the event and no action was required on their part to be eligible for the doorpnzes.

On February 3, 1999, the Commission rendered Advisory Opinion No. 99-09, which heldthat:

"An employee of the Alabama State Docks, who registered for a prize whilepicking up supplies for the State Docks, may accept the prize, as the opportunitywas available to all members of the public and the employee did not use hisposition to win the prize."

Shortly thereafter, on July 7, 1999, the Commission rendered Advisory Opinion No. 99-28, which held that:

Susan Allen

Advisory Opinion No. 2000-63Page six

"A public employee of the Alabama Development Office (ADO), who is onofficial business with the ADO and wins a door prize of two coach class airlinetickets, may not use the tickets for personal travel when the tickets were wonwhile he was being paid by the State of Alabama and performing the officialduties of his office."

"A public employee of the Alabama Development Office (ADO), who wins adoor prize of two coach class airline tickets, may donate those tickets to charity oruse them for official ADO travel."

It could be argued that House Bill 45 relates to the facts before the Commission, in that,the door prize won was incidental to travel in the performance of one's duties.

Based on the facts as provided and the above law, the Assistant Director of the AlabamaElectronic Benefit Transfer Project for the Alabama Department of Human Resources mayaccept a door prize won in conjunction with her attendance at a conference/seminar which sheattended as a representative of the Department of Human Resources; provided, that acceptance ofthe door prize required no affirmative action on her part; that it is not given in exchange forofficial action; and, where the door prize is incidental to her attendance at theconference/seminar.

Further, it should be noted that this Advisory Opinion is addressed to the specific factsand circumstances contained within. It does not address door prizes in a broad sense, but isspecific to these facts.

CONCLUSION

The Assistant Director of the Alabama Electronic Benefit Transfer Project for theAlabama Department of Human Resources may accept a door prize won in conjunction with herattendance at a conference/seminar which she attended as a representative of the Department ofHuman Resources; provided, that acceptance of the door prize required no affirmative action onher part; that it is not given in exchange for official action; and, where the door prize is incidentalto her attendance at the conference/seminar.

It should be noted that this Advisory Opinion is addressed to the specific facts andcircumstances contained within. It does not address door prizes in a broad sense, but is specificto these facts.

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Susan AllenAdvisory Opinion No. 2000-63Page seven

AUTHORITY

By 4-0 vote of the Alabama Ethics Commission on December 6,2000.

~~ty'tl. Watsonair

Alabama Ethics Commission