Alabama Advisory Opinions October 15, 1997: AGO 1998-010 (October 15, 1997)

AGO 1998-010.

Dear Senator Windom:

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

1. Does Alabama law, in particular the Fair Campaign Practices Act and the Ethics Act, permit the organization of a legal defense fund, the proceeds of which would be used to pay for the defense of a public official who is the subject of a grand jury investigation?

2. May the public official accept the direction of such funds to his counsel for payment of his attorney's fees? If so, must the contributors be identified?

3. Are contributions to the legal defense fund "campaign contributions?"

The Fair Campaign Practices Act (FCPA), codified at ALA. CODE §§ 17-22A-1, et seq ., (1975), is not applicable to the organization of a legal defense fund by a public official, the proceeds of which will be used to pay attorney's fees for the public official. The FCPA governs contributions made for the purpose of influencing the results of an election and limits the time period in which contributions may be made to a candidate. If contributions are made to a public official's principal campaign committee, those contributions and expenditures must be in compliance with the FCPA. This Office is not aware of any provisions, other than the State Ethics Law, that prohibit or regulate the creation of a fund used to pay for a public official's legal defense. Furthermore, no opinion is expressed with respect to the income tax consequences of the use of these funds.

Any questions concerning the Ethics Law should be submitted to the Ethics Commission. In addition, judicial officers may wish to seek an opinion from the Judicial Inquiry Commission concerning their authority to create a legal defense fund.

The Fair Campaign Practices Act is not applicable to the organization of a legal defense fund for a public official who is the subject of a grand jury investigation, and contributions to such a fund are not campaign contributions. Questions concerning the applicability of the Ethics Law should be addressed to the Ethics Commission. Judicial officers may wish to seek an opinion from the Judicial Inquiry Commission.

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

Sincerely,

BILL PRYOR

Attorney General

By: JAMES R. SOLOMON, JR.

Chief, Opinions Division

BP/BFS

W/10.97/f