Alabama Advisory Opinions January 06, 1999: AGO 1999-077 (January 6, 1999)

AGO 1999-077.

Dear Representative Guin:

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

Is it legally prohibited for legislative caucuses to use state property, such as State House conference rooms, for the purpose of conducting caucus meetings?

Sections 36-12-60 to 36-12-64 of the Code of Alabama concern the use of state-owned property for political purposes. The purpose of these provisions is stated in section 36-12-60 as:

The object and purpose of this article is to place all candidates for any state office upon an equality by the prevention of the use of any state-owned property in the promotion or advancement of the candidacy of any individual to the nomination or election to any public office of the state of Alabama.

Section 36-12-61 provides:

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.

No person in the employment of the state shall use state property or time for political activities. ALA. CODE § 17-1-7(c) (1995).

These statutes are intended to prohibit a public official or employee from using public funds, public property, and public time for election activities. Opinion of the Attorney General to Honorable Gregory D. Wren, dated September 8, 1998, A.G. No. 98-00211.

A "caucus" has been defined as "a meeting of persons of the same political party or of the same views in general, called and conducted for the purpose of determining a course of action which the participants should follow as a group in a larger meeting to be held later." Ballentine's Law Dictionary 181 (3d ed. 1969). As it relates to a legislative body, a caucus is "a group within a legislative body seeking to represent a specific interest, or influence a particular area of policy." American Heritage Dictionary 304 (3d ed. 1992). See Associated Press v. Montana Senate Republican Caucus , 951 P. 2d 65, 68 (Mont. 1997).

This Office has opined that the caucus of House Democrats is a political committee, which may receive corporate contributions. Opinion to Honorable Jim Campbell, dated January 30, 1992, A.G. No. 92-00150. Quoting from that opinion:

The Caucus of House Democrats is composed of persons elected to the House of Representatives under the emblem of the Alabama Democratic Party who voluntarily choose to become a member of the Caucus. According to the charter, the purpose of the Caucus is as follows:

"1. To maintain and advance the Independent House of Representatives.

"2. To preserve the Democratic majority in the House by involvement in the election process.

"3. To improve the public image of both individual members and of the House in general.

"4. To advance the political interests of its members and potential members.

"5. To promote the candidacy of House Democratic nominees."

Considering the statutes cited above, a party caucus cannot hold meetings on state property for election fundraising or campaign purposes. A legislative caucus may, however, meet on state property for determining a course of action on legislation and determining and implementing policy strategy, under rules established by the Legislature. A legislative caucus may hold press conferences or videotape political advertisements on common or public areas of public buildings provided those areas are available to all legislators on an equal basis. Opinion to Honorable Gregory Wren at 3.

A party caucus cannot hold meetings on state property for election fundraising or campaign purposes. It may meet on state property for legislative or policy-determining purposes.

QUESTION 2

If a state building is used for the purpose of holding a caucus, may the meeting be closed to only caucus members?

FACTS, LAW, AND ANALYSIS

The fact that meetings are held in public buildings does not, in and of itself, require that those meetings be open to the public.

The state "Sunshine Law" or "Open Meetings Law" is found at section 13A-14-2 of the Code of Alabama. It states, in pertinent part:

(a) No executive or secret session shall be held by any of the following named boards, commissions or courts of Alabama, namely: Alabama Public Service Commission; school commissions of Alabama; board of adjustment; state or county tax commissions; any county commission, any city commission or municipal council; or any other body, board or commission in the state charged with the duty of disbursing any funds belonging to the state, county or municipality, or board, body or commission to which is delegated any legislative or judicial function; except, that executive or secret sessions may be held by any of the above named boards or commissions when the character or good name of a woman or man is involved.

The Alabama Supreme Court stated in Advertiser Company v. Wallis , 493 So. 2d 1365 (Ala. 1986), regarding the applicability of the Sunshine Law:

"The Sunshine Law applies to a few named commissions, boards, and councils, . . . and to `any other body, board or commission' which disburses public funds or exercises legislative or judicial functions."

and

"[W]e find that the entities to which the Sunshine Law applies are only those governed by a group of individuals who sit as a deliberative body to set policy regarding the public matters with which the entity is entrusted."

A legislative party caucus is not named in section 13A-14-2(a), it does not disburse public funds, and it does not exercise legislative or judicial functions. It does not sit as a deliberative body to set policy regarding public matters with which an entity is entrusted. A legislative party caucus, therefore, is not subject to the State Open Meetings Law.

It has been determined that legislative committees are subject to the State Open Meetings Law. Opinions of the Attorney General to Honorable Taylor Harper, dated August 21, 1991, A.G. No. 91-00356 and to Honorable Bill Smith, dated November 17, 1976, File No. 163. Standing legislative committees differ from legislative party caucuses in that the appointment of committee members is provided for by law. ALA. CONST. amend. 57. No bills introduced in the House of Representatives and Senate shall become law unless it is referred to a standing committee. ALA. CONST. art. IV, § 62. Legislative committees, therefore, are an integral part of the legislative process and have a direct impact on the disbursement of public funds and on policy regarding public matters coming before the Legislature. A legislative party caucus is not part of the legislative process, but is an ad hoc group created for the purposes previously discussed.

CONCLUSION

Legislative caucus meetings may be open to only caucus members.

QUESTION 3

Is it legally prohibited for legislative caucuses to utilize state clerical staff, assigned by House/Senate leadership or the House/Senate clerk, for the purpose of preparing inter-caucus memos, scheduling meetings, and other legislative caucus administrative functions?

FACTS, ANALYSIS, AND CONCLUSION

Sections 36-12-60 and 36-12-61 concern the use of state property for political purposes.

Section 17-1-7(c), previously mentioned, provides: "No person in the employment of the State of Alabama, . . . whether classified or unclassified, shall use state . . . property or time for any political activities." ALA. CODE § 17-1-7(c) (1995). In keeping with the Conclusion to Question No. 1, legislative clerical staff cannot be used by a legislative party caucus to perform services related to election fundraising or campaign purposes. There is no prohibition that prevents clerical staff to be used by a legislative party caucus to assist with discussions involving legislative policy and for implementing legislative policy, under such rules as may be established by the Legislature.

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

Sincerely,

BILL PRYOR

Attorney General

By: CAROL JEAN SMITH

Chief, Opinions Division

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