Alabama Advisory Opinions January 11, 2017: AGO 2017-014 (January 11, 2017)

Advisory Opinion Text

Honorable Gary W. Waters

City of Pelham Mayor

Post Office Box 1419

Pelham, Alabama 35124

Municipalities - City Councils -Offices and Officers

Pursuant to section 11-43-45 of the Code of Alabama, councilmembers who have been nominated to fill the position of council president may vote for themselves.

Dear Mayor Waters:

This opinion of the Attorney General is issued in response to your request on behalf of the City of Pelham.

QUESTIONS

(1) Can two nominated councilmembers vote for themselves in the election for the council president without being in violation of section 11-43-54 or sections 36-25-5 and 36-25-9(c) or any other provision of the Code of Alabama not specified herein?

(2) If not and neither side concedes, how do we elect a council president without a majority vote of the council?

FACTS AND ANALYSIS

The City of Pelham has five councilmembers, all of whom receive compensation. The president of the council, however, is compensated in an amount greater than other members. The city's population is over 12,000, and therefore the mayor is not a voting member of the council. Two councilmembers have been nominated for the position of council president.

Section 11-43-45 of the Code of Alabama states as follows:

All elections of officers shall be made viva voce, and a concurrence of a majority of the members to the council shall be required, and all members of the council may vote any provision of law to the contrary notwithstanding. On the vote resulting in an election or appointment, the name of each member and for whom he voted shall be recorded.

Ala. Code § 11-43-45 (2008) (emphasis added).

This Office has stated that section 11-43-45 authorizes a municipal officer to vote for himself. Opinions to Honorable Charles D. Langford, Member, Alabama State Senate, dated December 11, 2000, A.G. No. 2001-048; Honorable Lee J. Wood, Mayor, City of Wetumpka, dated February 22, 1989, A.G. No. 89-00189; Honorable Ronald P. Thompson, District Attorney, dated November 9, 1993, A.G. No. 93-00041. The Wood opinion explained the reasoning supporting this line of opinions as follows:

Because of the explicit language of Code of Alabama 1975, § 11-43-45 that "all members of the council may vote any provision of law to the contrary notwithstanding ," it is the opinion of this office that no other provision of law can prohibit a councilmember from voting for himself to fill a vacancy in the office of mayor.

Stated differently, Section 11-43-45 is a specific authorization by law for a councilmember to vote for a vacancy in the position of mayor.

Wood at 2 (emphasis added).

Your inquiry questions the significance of a related statute, section 11-43-54. Ala. Code § 11-43-54 (2008). Specifically, you question whether section 11-43-54 would prohibit a councilmember from voting for himself. This provision states that "[n]o councilman shall be entitled to vote on any question in which he, his employer, or employee has a special financial interest at the time of voting or was so interested at the time of his election. For violating this section or Section 11-43-53, a councilman may be removed." Ala. Code § 11-43-54 (2008) (emphasis added).

Both sections 11-43-45 and 11-43-54, have been provisions, in some variation, in the Code since 1907. This Office has never interpreted these provisions to be in contravention of one another with respect to the ability of a councilmember to vote for himself. Moreover, this Office was unable to find definitive case law interpreting the provisions to be in conflict with one another. Accordingly, this Office sees no reason to vary from the conclusions reached earlier in the Wood opinion.

Previously, in responding to an inquiry from H. William Wasden, Attorney, City of Bayou La Batre, dated May 14, 2014, A.G. No 2014-055, this Office determined that, under section 11-43-54, a member of a city council may not vote for himself to be appointed to a compensated position on a board or agency for which the city council is an appointing authority. That opinion, however, is distinguishable. The Wasden opinion addressed the vote to fill a position on a separately incorporated utility board. Section 11-43-54 is a general conflict-of-interest provision governing the vote of members of a municipal governing body, but section 11-43-45 provides a specific exception limited to voting on elections of municipal officers.

The Langford and Wood opinions, understanding the potential pecuniary interest at stake, advised that, prior to action being taken the person should seek an opinion from the Ethics Commission ("Commission"). You also question whether sections 36-25-5 and 36-25-9(c) would prohibit a councilmember from voting for himself. These provisions are contained in the Ethics Law for public officials and state employees. Ala. Code §§ 36-25-5 and 36-25-9(c) (2008). This Office does not render opinions with regard to provisions contained in the Ethics Law. This Office notes, however, that you have contacted the Commission with respect to this particular inquiry. In response, the Commission determined that barring a contrary conclusion with respect to sections 11-43-45 and 11-43-54 by this Office, the Commission "did not think §§5 and 9 would prohibit [a councilmember voting for himself] because the vote would be 'otherwise specifically authorized by law.'" Based on the conclusions reached herein, our Office and the Commission are in agreement. In light of the answer to your first question, your second question is moot.

CONCLUSION

Pursuant to section 11-43-45 of the Code of Alabama, councilmembers who have been nominated to fill the position of council president may vote for themselves.

I hope this opinion answers your questions. If this Office can be of further assistance, please contact Monet Gaines of my staff.

Sincerely,

LUTHER STRANGE, Attorney General

G. WARD BEESON, III Chief, Opinions Section