Alabama Advisory Opinions June 14, 1996: AGO 1996-242 (June 14, 1996)

AGO 1996-242.

Dear Governor James:

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

I request your opinion as to whether such educational efforts violate this section of Alabama law. If this statute is construed to preclude activities such as those set out in this request, it will seriously impede the abilities of all duly elected officials to carry forward the mandate of those who elected them.

Your request presents the following information:

In the 1995 Regular Session, I introduced and the Legislature of Alabama passed, three constitutional amendments which were the foundation of my court reform package. These amendments will appear on the June 4, 1996, Primary ballot as Amendments 2, 3, and 4. My staff and I have sought to educate the voters of Alabama about the provisions of these acts by telephone and mail and to encourage them to vote to ratify them. However, _ 17-1-7 of the Code of Alabama 1975, states:

"(b) No person shall attempt to use his or her official authority or position for the purpose of influencing the vote or political action of any person. Any person who violates this subsection (b) shall be guilty of a felony and punishable by a fine not to exceed ten thousand dollars ($10,000) or imprisonment in the state penitentiary for a period not to exceed two years, or both."

Constitution of Alabama 1901, _ 123, in pertinent part, states:

"The governor shall, from time to time, give to the legislature information of the state of government, and recommend for its consideration such measures as he may deem expedient . . . ." (Emphasis supplied.)

Limiting the ability of the governor to educate legislators and voters about legislative measures needed for the good of the State would clearly impede the work of the Governor in carrying out the duties of that office as specified in Section 123.

Moreover, in 1978 the Legislature stated the purpose for Acts of Alabama, Act No. 78-819, which amended Code of Alabama 1975, _ 17-1-7, as follows:

"To remove all restrictions relating to Public Employees of any County or City in the State of Alabama, pertaining to his right to participate in certain political activities and allow public employees the right of free expression in public welfare."

In amending Code of Alabama 1975, _ 17-1-7 in 1983 by Acts of Alabama, Act No. 83-497 the legislature in Section 1 declared:

"This act shall be known as the Equality of Citizenship Act."

The latest amendment, found in Acts of Alabama, Act No. 95-378, was for the stated purpose of providing "that public employees, including law enforcement officers, firefighters, and peace officers, may engage in or refrain from participating in political activity."

This section is aimed at officials trying to put undue influence on persons under their control by offering a reward or threat of reprisal for voting in a certain way. The Governor or a cabinet member violates this section by offering a reward to or threatening those state employees under his direct control. A reading of _ 17-1-7, with its various amendments, clearly shows that its purpose is to allow public employees to participate in political activities, as do citizens in the private sector, without fear of censure or reprisal from persons having authority over their job security.

Clearly, the duties imposed on the Governor in Section 123 of the Constitution are not limited by the provisions of Code of Alabama 1975, _ 17-1-7 in such a manner as to prohibit the Governor, other elected officials or their staffs from educating the voters of this state, whether they be employed in either the public or private sector, or not at all, on legislative measures pending before the voters or on other matters of public importance.

No issues involving either the expenditure of public funds for these efforts or laws other than Code of Alabama 1975, _ 17-1-7 are addressed in this opinion.

The Attorney General routinely does not issue opinions as to whether a particular course of conduct is a violation of a state statute. Only a judge and a properly empaneled jury has this power. This response is an expression of what the Attorney General has determined to be the legislative intent in the enactment of _ 17-1-7, as amended.

The Governor is not prohibited by the provisions of Code of Alabama 1975, _ 17-1-7 from educating the voters of this state on issues of public importance, whether the voters be employed in the public sector, the private sector, or not at all.

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

Sincerely,

JEFF SESSIONS

Attorney General

By: JAMES R. SOLOMON, JR.

Chief, Opinions Division

JS/CJS/jho

J6.96/OP