Alabama Advisory Opinions August 04, 2022: AGO 2022-040

Advisory Opinion Text

Political Activities - County Commissions - Public Buildings - Greene County

Neither section 36-12-61 of the Code of Alabama nor section 17-17-5(a) of the Code prohibit the Greene County Commission from allowing groups or individuals to use facilities owned by the County for meetings or forums held by or on behalf of political candidates for Federal, State, County or Municipal offices, possibly including events held by or on behalf of current Greene County Commissioners, so long as access to such facilities is equally available to all candidates and reasonable scheduling restrictions ensure that such activities do not interfere with the conduct of public business. These facilities would include common or public areas such as lawns, steps, porches, lobbies, hallways, and other like areas that are open to the public and would not include individual offices that would not be equally accessible to all candidates.

Dear Mr. Parnell:

This opinion of the Attorney General is issued in response to your request on behalf of the Greene County Commission.

QUESTION

May the Greene County Commission legally allow groups or individuals to use facilities owned by the County for meetings or forums held by or on behalf of political candidates for Federal, State, County or Municipal offices, possibly including events held by or on behalf of current Greene County Commissioners?

FACTS AND ANALYSIS

You indicate in your opinion request that the Greene County Commission has received requests from groups or individuals to use various County-owned buildings to hold meetings or forums for political candidates for various municipal, county, state, and federal offices. Some of these meetings or forums may include Greene County Commissioners running for office. You ask whether the Commission may legally grant such requests under Alabama law including, but not limited to, under sections 17-17-5, 36-12-61, and 36-25-5 of the Code of Alabama.

Sections 17-17-5 and 36-12-61 of the Code limit the use of public property for political activity by public officials or employees. Section 17-17-5(a) of the Code provides that "fn]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 (emphasis added). Ala. Code § 17-17-5(c) (Supp. 2021). Likewise, section 36-12-61 of the Code provides similar prohibitions, but only applies to the use of state property by state officers and employees:

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). Because your question is limited to whether the Commission itself is permitted to allow certain political activity in its own facilities and section 36-12-61 of the Code is expressly limited to state officers/employees and state facilities, only section 17-15-5(a) of the Code directly applies.

This Office addressed a comparable question in its opinion to Honorable Gregory D. Wren, State Representative, House of Representatives, dated Sep. 8, 1998, A.G. No. 98-00211, specifically addressing whether candidates for public office generally can use public buildings for holding press conferences or candidacy announcements. Citing section 17-l-7(c) of the Code, now codified as section 17-15-5(a), and section 36-12-61 of the Code, this Office held that these statutes prohibit public officials and employees from holding political events on public property, but emphasized:

[A]ny common areas or public areas of public buildings and grounds, such as lawns, steps, porches, lobbies, hallways, and other like areas can be used for holding press conferences or videotaping political advertisements provided that access to those areas is available to all candidates on an equal basis. The use is also subject to reasonable scheduling restrictions to ensure that such activities do not interfere with the conduct of public business. Any areas in public buildings that are not open for equal access to all candidates should not be used by any candidate, including public officials and employees. Individual offices, while used for the purpose of conducting public business, are assigned to individual public officials and employees for their use and are under their individual custody and control. These individual offices are not open to the public and, therefore, should not be used for political press conferences and videotaping by any candidate.

Wren, pp. 3-4 (emphasis added). In reaching its conclusion that common areas can be used for political activities subject to equal availability to all candidates and to reasonable scheduling restrictions, this Office did not distinguish between sections 36-12-61 and 17-17-5 of the Code or between state and local employees. Id. Therefore, this holding is applicable to the Commission, which is governed by section 17-17-5(a) of the Code.

Any questions concerning the Ethics Law such as those related to section 36-25-5 of the Code should be addressed to the Alabama Ethics Commission. Wren, p. 4.

CONCLUSION

Neither section 36-12-61 of the Code of Alabama nor section 17-17-5(a) of the Code prohibit the Greene County Commission from allowing groups or individuals to use facilities owned by the County for meetings or forums held by or on behalf of political candidates for Federal, State, County or Municipal offices, possibly including events held by or on behalf of current Greene County Commissioners, so long as access to such facilities is equally available to all candidates and reasonable scheduling restrictions ensure that such activities do not interfere with the conduct of public business. These facilities would include common or public areas such as lawns, steps, porches, lobbies, hallways, and other like areas that are open to the public and would not include individual offices that would not be equally accessible to all candidates.

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

STEVE MARSHALL Attorney General

BEN BAXLEY Chief, Opinions Division