Alabama Advisory Opinions January 16, 2019: AGO 2019-016 (January 16, 2019)

Advisory Opinion Text

Honorable Walter Craig Pouncey

Superintendent

Jefferson County Board of Education

2100 18th Street South

Birmingham, Alabama 35209

Education, Boards of - Payroll Deductions - Political Activities -Crimes and Offenses - Jefferson County

A public school official charged with administering payroll deductions does not have the authority to conduct an independent investigation into whether a membership organization has filed false information when certifying that none of its membership dues are used for political activity. Such an official should report his or her concerns to the Department of Examiners of Public Accounts.

A public school official who has official knowledge that a membership organization has filed false information should cease payroll deductions for that organization.

Dear Dr. Pouncey:

This opinion of the Attorney General is issued in response to your request on behalf of the Jefferson County Board of Education.

QUESTIONS

(1) What is a public school superintendent's enforcement authority and legal obligation with respect to apparent or suspected violations of section 17-17-5(b) of the Code of Alabama which permanently bars organizations failing to comply with its requirements from arranging for the collection of its membership dues from any governmental entity?

(2) Does section 17-17-5(c) of the Code of Alabama impose criminal liability on a public school official who accepts an organization's certification at face value if the accounting breakdown raises substantial questions regarding the organization's compliance with the restrictions imposed by section 17-17-5(b)?

FACTS AND ANALYSIS

Your request states that you are required by sections 16-9-32 and 16-9-33 of the Code of Alabama to prepare and approve payrolls for the payment of teachers and other employees. Ala. Code §§ 16-9-32, 16-9-33 (2012). You seek guidance on how these duties were affected by the amendment of section 17-17-5 of the Code of Alabama by Act 2010-761. Ala. Code § 17-17-5 (Supp. 2017). Specifically, you ask whether you may or must direct your payroll department to cease payroll deductions for any "offending organization" and whether you must comply with any due process and standard of proof requirements before making a determination that such an organization has failed to comply with section 17-17-5. Alternatively, you ask if you have the authority and/or duty to refer the matter to another agency or law enforcement official.

The act added section 17-17-5(b) to prohibit employees of government agencies from arranging payments by payroll deduction or otherwise to a political action committee or to a membership organization that uses membership dues for political activities. Section 17-17-5(b)(l) provides as follows:

(b)(1) No person in the employment of the State of Alabama, a county, a city, a local school board, or any other governmental agency may arrange by salary deduction or otherwise for any payments to a political action committee or arrange by salary deduction or otherwise for any payments for the dues of any person so employed to a membership organization which uses any portion of the dues for political activity. For purposes of this subsection only, political activity shall be limited to all of the following:

a. Making contributions to or contracting with any entity which engages in any form of political communication, including communications which mention the name of a political candidate.

b. Engaging in or paying for public opinion polling.

c. Engaging in or paying for any form of political communication, including communications which mention the name of a political candidate.

d. Engaging in or paying for any type of political advertising in any medium.

e. Phone calling for any political purpose.

f. Distributing political literature of any type.

g. Providing any type of in-kind help or support to or for a political candidate.

Ala. Code § 17-17-5(b)(1) (Supp. 2017).

In order to facilitate the administration of payroll deductions, section 17-17-5-5(b)(2) provides for a mechanism whereby membership organizations can certify that they do not use any membership dues for the above political activities, stating as follows:

(b)(2) Any organization that requests the State of Alabama, a county, a city, a local school board, or any other governmental agency to arrange by salary deduction or otherwise for the collection of membership dues from persons employed by the State of Alabama, a county, a city, a local school board, or any other governmental agency shall certify to the appropriate governmental entity that none of the membership dues will be used for political activity. Thereafter, at the conclusion of each calendar year, each organization that has arranged for the collection of its membership dues from persons employed by the State of Alabama, a county, a city, a local school board, or any other governmental agency shall provide the appropriate governmental entity a detailed breakdown of the expenditure of the membership dues of persons employed by the State of Alabama, a county, a city, a local school board, or any other governmental agency and collected by the governmental entity. Any organization that fails to provide the required certifications, that reports any expenditures for political activity, or that files false information about political activity in any of its reports shall be permanently barred from arranging for the collection of its membership dues by any governmental entity. The Examiners of Public Accounts shall annually review a sample of at least 10 percent of the certifications filed with each governmental entity and report its finding s to the appropriate governmental entity.

Ala. Code § 17-17-5(b)(2) (Supp. 2017) (emphasis added).

Outside of this certification process, section 17-17-5(b) does not provide public employees charged with administering payroll deductions with any enforcement authority. Although the statute requires the Department of Examiners of Public Accounts ("Examiners") to review at least ten percent of the certifications filed by membership organizations and to report its findings to the relevant governmental entity, it is silent regarding whether those administering payroll deductions possess any investigative powers and whether they must apply a specific standard of proof and afford membership organizations a certain level of due process. Obviously, such an administrator must deny payroll deductions to any membership organization that fails to certify that it uses no membership dues for political activity. Furthermore, the administrator should be able to request further information or clarification from the organization if the detailed breakdown of the expenditure of membership dues is insufficient. The question remains, however, whether he or she may conduct an independent investigation when suspecting that an organization has included false information in its certification.

This Office recently held that a probate judge possesses no authority to perform an independent investigation when suspecting that someone has misrepresented the value of property used to calculate recordation tax. Opinion to Honorable John E. Enslen, Probate Judge, Elmore County, dated June 5, 2018, A.G. No. 2018-034. That opinion explained that, whereas the tax on instruments conveying interests in property is to be calculated based on the "value" of the property, in 2012 the relevant statute was amended to provide that the value of property that has not been sold is to be determined by having a person attest to the property's actual value using a form developed by the Alabama Department of Revenue. The Enslen opinion reasoned that, because the calculation of the tax was a ministerial act requiring no exercise of judgment and discretion and the statute did not give a probate judge any such authority, he or she could not conduct an independent investigation into the property's value.

The Enslen opinion further held, however, that a probate judge should refuse to accept the form if he or she has "official knowledge" that the attester has misrepresented in bad faith the fair market value of the property. Id. at 4. "[O]fficial knowledge" is "knowledge gained from an official source arising from the performance of duties prescribed by law." Id. at 4, quoting opinion to Honorable Jim Bennett, Secretary of State, dated August 12, 1998, A.G. No. 98-00200 at 3.

A public school official administering payroll deductions, likewise, is not authorized to conduct an independent investigation into whether a membership organization has misrepresented information on its certification. Like the calculation of recordation tax in Enslen, determining whether membership organizations are entitled to payroll deductions, especially in light of the statute's certification process and its failure to provide the administrator with investigative authority, is a ministerial act. As such, the public school official should cease payroll deductions of an organization when he or she has official knowledge that the organization has misrepresented material information in its certification or has used membership dues to pay for political activity.

The statute anticipates that public employees administering payroll deductions will have a working relationship with the Examiners. Because the statute assigns to the Examiners the duty of reviewing certifications and reporting its findings to the relevant governmental entity, any information gleaned from these reviews will be within the official knowledge of payroll deduction administrators and could be used as a basis for ceasing payroll deductions. Furthermore, as part of this working relationship, such administrators may report their concerns to the Examiners. Finally, any public employee who suspects that a crime has been committed may contact the local district attorney.

Insofar as you ask whether certain conduct violates a criminal statute, this Office has stated that it "does not issue opinions on whether a certain activity constitutes a violation of a criminal law. Only a properly empaneled jury and judge can make such a determination." Opinion to Honorable Arthur Green, Jr., District Attorney, Tenth Judicial Circuit -Bessemer Division, dated August 9, 2005, A.G. No. 2005-173 at 2; see also, opinion to Honorable Douglas Valeska, Houston County District Attorney, dated June 28, 1990, A.G. No. 90-00316.

CONCLUSION

A public school official charged with administering payroll deductions does not have the authority to conduct an independent investigation into whether a membership organization has filed false information when certifying that none of its membership dues are used for political activity. Such an official should report his or her concerns to the Department of Examiners of Public Accounts.

A public school official who has official knowledge that a membership organization has filed false information should cease payroll deductions for that organization.

I hope this opinion answers your questions. 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 Division