Alabama Advisory Opinions February 01, 1996: AGO 1996-120 (February 1, 1996)

AGO 1996-120.

Dear Mr. Bennett:

This opinion is issued in response to your request for an opinion from the Attorney General.

Does Code of Alabama 1975, § 36-25-6 (a), a provision of the Ethics Law, repeal or supersede Code of Alabama 1975, § 17-22A-7 (b) of the Fair Campaign Practices Act?

The Alabama Ethics Law was extensively amended during the 1995 legislative session by Act No. 95-194. One of the provisions of the act, codified at Code of Alabama 1975, § 36-25-6(a), relates to the period of time when candidates may solicit or accept campaign contributions. Questions have now arisen as to whether this provision repeals or supersedes a provision of the Fair Campaign Practices Act (FCPA) which prohibits solicitation or acceptance of campaign contributions by candidates for state offices when the Legislature is convened in session.

Section 36-25-6 (a) states:

"(a) Notwithstanding any other provision of law, including but not limited to Sections 17-22A-1 to 17-22A-23, inclusive, and 13A-10-61, a candidate, public official, or principal campaign committee, as defined in Section 17-22A-2, may only accept, solicit, or receive contributions, as defined in Section 17-22A, to influence the outcome of an election; in addition, a candidate, public official, or principal campaign committee may not accept, solicit or receive contributions more than 12 months before an election in which the person intends to be a candidate. The candidate may also solicit contributions for a period of 120 days after the election in which the person was a candidate, but only to the extent of any campaign debt of the candidate or the principal campaign committee of the candidate as indicated on campaign financial disclosure form or to be extent of reaching the threshold that is required for qualification as a candidate for the office which he or she currently holds. The provision of this section dealing with the campaign debt of the candidates or the principal campaign committee of the candidate shall not apply to any prior candidate or current elected official who files a verified statement of such debt with the Secretary of State on or before October 1, 1995. Said debt must have been created on or before January 1, 1995 and shall be directly related to lawful campaign expenditures. Provided, however, any candidate, or elected official whose election is challenged including quo warranto challenges may then accept, solicit and receive campaign contributions for the purpose of paying all expenses associated with the election challenge."

Code of Alabama 1975, § 17-22A-7(b), a provision of the Fair Campaign Practices Act, provides as follows:

"(b) Candidates for state offices and their principal campaign committees designated in the statement filed with the Secretary of State pursuant to Section 17-22A-4 on behalf of persons seeking or holding those offices, may not solicit or accept, or both, contributions during the period when the Legislature is convened in session. For the purpose of this section, the Legislature is considered convened in session at any time from the opening day of the special or regular session and continuing through the day of adjournment sine die for that session. This subsection (b) shall not apply within 120 days of any primary, run-off, or general election and shall not apply to the candidates or principal campaign committees participating in any special election called by the Governor."

The rule of statutory construction is to ascertain and give effect to legislative intent as expressed in the statute which may be determined from the language used, the reason and necessity for the act and the purpose sought to be obtained. Shelton v. Wright , 439 So.2d 55 (Ala. 1983). Repeal of a statute by implication is not favored and a prior act is not repealed unless provisions of a subsequent act are directly repugnant to the former act. Merrell v. City of Huntsville , 460 So.2d 1248 (Ala. 1984).

Section 17-22A-7(b) was not specifically repealed by Act No. 95-194, which amended the Ethics Law. Section 36-25-6(a), a codified provision of the amended Ethics Law, is not directly repugnant to the provisions of § 17-22A-7(b). Under the FCPA candidates could solicit and accept contributions at any time except with respect to the limitations found in § 17-22A-7(b). Section 17-22A-7(b) prohibits a candidate for state office from soliciting or accepting contributions during a legislative session except within 120 days of a primary, run-off or general election. Section 36-25-6(a) allows candidates to solicit and accept campaign contributions for a period of 12 months before an election and 120 days after an election to retire a campaign debt. Both of these provisions may be given a field of operation. If, for example, the legislature were in session some time during the 12 months before the election (as would ordinarily be the case), the FCPA would prohibit solicitation and acceptance of contributions during the session except for 120 days before the date of the election. Since § 36-25-6(a) of the Ethics Law is not directly in conflict with the FCPA provision, it is my opinion that § 17-22A-7(b) is not repealed by the amendment of the Ethics Law.

Under the FCPA all contributions, as defined by § 17-22A-2, by candidates, their principal campaign committees, and other political committees are to be reported regardless of the time when the contributions are received. The prior Attorney General's opinion to Honorable M.S. Butler, Sheriff, Montgomery County, dated April 12, 1990, A.G. No. 90-00221, which implies otherwise is hereby overruled. The new Ethics Law makes it clear that contributions may be solicited and accepted only "to influence an election" and any money received after the election is to be considered a contribution with respect to that election. This is similar to the treatment of post-election receipts under federal law. See 2 USCS § 434. With the amendment of the Ethics Law, it is clear that all contributions received, either before the election or after the election, are reportable under the FCPA. Therefore, if a legislative session occurs during the 120-day period after an election (which would generally be a special session), a candidate for state office would be prohibited by § 17-22A-7(b) from soliciting and accepting contributions during that legislative session unless the legislative session took place within 120 days of a primary, run-off, or general election.

We note that there has been confusion and misunderstanding on this issue and legislative clarification would be helpful.

We also note that Attorney General's opinions are advisory and serve only to protect the public official to whom it is directed from liability because of any official act performed by the public official. Code of Alabama 1975, § 36-15-19.

Code of Alabama 1975, § 36-25-6(a), a provision of the Ethics Law, does not repeal or supersede Code of Alabama 1975, § 17-22A-7(b) of the Fair Campaign Practices Act. Both provisions are to be applied to candidates for state office. Money or any other thing of value received by a candidate, principal campaign committee, or other political committee, either before or after an election, must be reported under FCPA.

I hope this sufficiently answers your question. If our office can be of further assistance, please contact Brenda F. Smith of my staff.

Sincerely,

JEFF SESSIONS

Attorney General

By: JAMES R. SOLOMON, JR.

Chief, Opinions Division

JS/BFS

B/1.96/f