Alabama Advisory Opinions November 17, 2017: AGO 2018-007 (November 17, 2017)

Advisory Opinion Text

Honorable Kay Ivey

Governor

Office of the Governor

600 Dexter Avenue, Room N-104

Montgomery, Alabama 36130

Governor - Governor's Mansion -State Property - Political Activities

The Governor may host an event at the Governor's Mansion Complex for a political organization as long as the event is purely social.

Dear Governor Ivey:

This opinion of the Attorney General is issued in response to your request.

QUESTION

May the Governor host a social event at the Governor's Mansion Complex for the members of a political organization, such as a political party executive committee, if: the event is purely social and no business of the organization is conducted; during the event, the Governor does not speak in favor of, or in opposition to, any candidate's election campaign; during the event, the Governor does not solicit contributions, as defined in the Fair Campaign Practices Act, and making a contribution to any candidate or political action committee is not a prerequisite for receiving an invitation or attendance?

FACTS AND ANALYSIS

Your request states that you would like to use the Governor's Mansion Complex ("Complex") to host receptions for various groups during the upcoming Christmas holiday season. This Office understands that these groups may include neighbors of the Complex, persons who volunteer in the Complex, members of the Governor's cabinet and staff, and political party committees. You further state these receptions would be purely social in nature and each of them finds support in the historical practices of prior administrations.

The First Lady Dianne Bentley Governor's Mansion Preservation Act, codified in section 41-9-540, et seq., of the Code of Alabama, created the Governor's Mansion Authority ("Authority") to operate the Complex. Ala. Code §§ 41-9-540 to 41-9-549 (2013). The Authority is a state agency and the property in the Complex is state property. ALA. Code §§ 41-9-541(a), 41-9-543(b) (2013).

The Complex, however, also retains characteristics of private property. This dual nature is reflected in section 41 -9-541 (b), which states as follows:

(b) The purposes of the authority shall be to preserve and maintain the Governor's Mansion and to protect the historical and architectural integrity of the mansion exterior, interior, contents, and grounds; to develop, maintain, and operate the Governor's Mansion Complex as an appropriate setting for carrying on the official and ceremonial functions of the state, including, but not limited to, the recruitment of industry; and to provide a suitable housing for the Governor and the family of the Governor in comfortable, private, and physically secure quarters within the Governor's Mansion Complex, including the Hill House.

Ala. Code § 41-9-541(b) (2013) (emphasis added). In addition, alterations to the Governor's Mansion require the Authority's prior approval with the exception of the "private living quarters of the Governor and the family of the Governor." Ala. Code § 41-9-543(b) (2013).

Although the Governor is generally free to entertain guests in the Complex like any homeowner, there are limitations on its use as state property that must be considered. Section 17-17-5(a) of the Code of Alabama provides that "[n]o person in the employment of the State of Alabama, a county, a city, a local school board, or any other governmental agency, whether classified or unclassified, shall use any state, county, city, local school board, or other governmental agency funds, property, or time, for any political activities." Ala. Code § 17-17-5(a) (2014) (emphasis added). Similarly, section 36-12-61 of the Code of Alabama states as follows:

It shall be unlawful for any officer or employee of the State of Alabama to use or to permit to be used any state-owned property of any character or description, including stationery, stamps, office equipment, office supplies, automobiles or any other property used by him, in his custody or under his control for the promotion or advancement of the interest of any candidate for the nomination or election to any public office of the State of Alabama.

Ala. Code § 36-12-61 (2013) (emphasis added).

This Office has long confined the definition of "political activities" in section 17-17-5(a), which was previously codified in section 17-1 -7(c), to activities on behalf of a particular candidate or political party, so as to avoid undermining government's ability to function. Opinions to Honorable Ed Richardson, State Superintendent, Department of Education, dated August 28, 2003, A.G. No. 2003-232 and to Honorable Jim Cams, Alabama House of Representatives, dated August 28, 2003, A.G. No. 2003-231; Honorable Ken Guin, Member of the House of Representatives, dated January 6, 1999, A.G. No. 1999-016. We note the Alabama Supreme Court has rejected that definition for newly-added section 17-17-5(b), but the Court clearly limited its holding to subsection (b) and did not apply it to subsection (a), State Superintendent of Educ. v. Alabama Educ. Ass'n, 144 So.3d 265 (Ala. 2013), which is the subsection at issue here. The Court also did not speak to section 36-12-61.

Given your representation that the event would be purely social, the Guin opinion provides guidance. That opinion determined that, although a political committee cannot meet on state property as a "party caucus . . . for election fundraising or campaign purposes," it may meet on state property as a "legislative caucus . . . for determining a course of action on legislation and determining and implementing policy strategy." Guin at 3. The Guin opinion underscores that the type of activity pursued rather than the inherent nature of the organization determines whether certain activity constitutes a violation. Thus, the mere fact that a political party committee is inherently a political organization would not convert the instant reception, if purely social, into activity prohibited by sections 17-17-5(a) and 36-12-61.

Additionally, this Office takes notice that hosting events for political groups at the Complex has been a customary practice in Alabama as it has been in other states. This Office has recognized that "[a]n established administrative construction that has been followed for a long time is presumed correct." Opinions to Honorable James E. Turnbach, Attorney, Etowah County Commission, dated March 17, 2008, A.G. No. 2008-061 at 5 and to Honorable Roger W. Kirby, Attorney, City of Gadsden, dated March 17, 2008, A.G. No. 2008-062 at 5, citing Glencoe Paving Co. v. Graves, 266 Ala. 154, 94 So.2d 872 (1957). Furthermore, "[a]lthough administrative construction of a statute is not binding, such construction is persuasive and is to be considered favorably. McCullar v. Universal Underwriters Life Ins. Co., 687 So.2d 156, 163 (Ala. 1996). This is particularly true when the Legislature has not acted to amend the law and change the practice." Opinion to Honorable Randall I. Hillman, Executive Director of the Office of Prosecution Services, dated March 30, 2011, A.G. No. 2011-049 at 3. As you correctly indicate, previous Governors have interpreted the First Lady Diane Bentley Governor's Mansion Preservation Act, prior authority, and the state property statutes to allow for hosting events for political parties. Despite that the act rewrote the law over the Governor's Mansion in 2011, the Legislature did not move to countermand this longstanding practice.

Consistent with the Guin opinion and further supported by longstanding administrative practice, the Governor may host a political party committee if the event is purely social in nature. At a minimum, that means the event will not involve any business of the committee, no one will speak in support of or opposition to any political candidate or solicit political contributions, and a political contribution will not be a prerequisite to being invited to or attending the event. Such activities would not, in fact, be purely social.

CONCLUSION

The Governor may host an event at the Governor's Mansion Complex for a political organization as long as the event is purely social.

I hope this opinion answers your question. If this Office can be of further assistance, please contact John Porter of my staff.

Sincerely,

STEVE MARSHALL, Attorney General

G. WARD BEESON, III Chief, Opinions Section