Honorable Jim Woodward

Honorable

Page 1

June 12, 2000

Page 1

Honorable Jim Woodward

Sheriff, Jefferson County

Melvin Bailey Justice Center

801 North 21st Street

Birmingham, AL 35203-0122

Sheriffs – Attorneys Fees – Fair Campaign Practices Act – Expenses - Counties

If certain requirements are met, the Jefferson County Commission, in its discretion, may pay out of county funds the legal expenses of the sheriff incurred in connection with a criminal indictment of the sheriff.

Excess campaign funds may be used by an incumbent office holder to pay legal fees incurred pursuant to the defense of a criminal indictment if the indictment is related to the performance of the duties of the office held.

Dear Sheriff Woodward:

This opinion of the Attorney General is issued in response to your request as the Sheriff of Jefferson County.

QUESTION 1

Under law, am I allowed to pay my attorneys fees and other legal expenses from public funds?

FACTS AND ANALYSIS

Your request states that on August 6, 1999, you were indicted by the Circuit Court of Jefferson County, Alabama, Bessemer Division, Grand Jury for the felony offense of Obtaining Criminal Record Information Under False Pretenses, a violation of section 41-9-601 of the Code of Alabama. The indictment alleged that, while serving as Sheriff of Jefferson County, you improperly, and under false pretenses, accessed the Alabama Criminal Justice Information System in an effort to determine whether those persons who voted in Jefferson County by absentee ballot in the November 3, 1998, general election were all qualified voters. You allege that you lawfully accessed this information as a part of a voter fraud investigation being conducted by the Jefferson County Sheriff’s Department. On October 6, 1999, a motion to dismiss the indictment was filed by Joseph D. Hubbard, the Special Assistant Attorney General assigned to handle the case. Mr. Hubbard stated in a press release issued on October 7, 1999, that “there is at the present time insufficient evidence from which a jury could reasonably conclude beyond a reasonable doubt that Jimmy H. Woodward violated Section 41-9-601 of the Code of Alabama.” Press Release, Office of the District Attorney, Joseph D. Hubbard, (October 7, 1999). Mr. Hubbard also stated that certain questions still exist pertaining to this indictment, that further investigation is warranted, and after conferring with the U.S. Attorney’s Office, the matter will be further investigated by federal authorities. Id.

A sheriff is an officer of the State; the county, however, provides the necessary funds to operate the sheriff’s office. Parker v. Amerson, 519 So. 2d 442 (Ala. 1987); Whitten v. Lowe, 677 So. 2d 778 (Ala. Civ. App. 1990); ALA. CODE §§11-3-11, 11-3-13, 36-22-1 et seq. (1989, 1991, Supp. 1999). Section 11-1-9(a) provides in pertinent part:

(a) Any law to the contrary notwithstanding, the county commission of any county of the state of Alabama may, in its discretion, defray the costs of defending any lawsuit brought against any county official when such lawsuit is based upon and grows out of the performance by said official of any duty in connection with his office and does not involve a willful or wanton personal tort orcriminal offense committed by the official. The expenses of defending such litigation may include witness fees, transportation, toll and ferry expenses of witnesses, attorney’s fees, court costs and any other cost in connection with the defense of said litigation.

ALA. CODE §11-1-9 (1989) (emphasis added).

This Office has previously held that a county commission may pay, out of county funds, the cost of defending a lawsuit against the sheriff, if the test set out in section 11-1-9(a) and City of Montgomery v. Collins, 355 So. 2d 1111 (Ala. 1978) are met. Opinion to Honorable William E. Shinn, Jr., County Attorney, Morgan County, dated June 30, 1988, A. G. No. 88-00339; to Honorable William E. Shinn, Jr., County Attorney, Morgan County, dated September 15, 1992, A. G. No. 92-00414. These tests are as follows: (1) the lawsuit against the officer must be based upon and grow out of the performance of any duty in connection with the office; (2) the suit does not involve a willful or wanton personal tort; (3) the officer was not found guilty of a criminal offense; (4) it is in the proper interest of the county to expend county funds for the purpose of defending the officer because of the risk of future litigation against the county itself arising out of the same or similar circumstances; and (5) the officer, in committing the acts in the discharge of the duties which are the subject of litigation, must have acted honestly and in good faith.

If the Jefferson County Commission determines that the above conditions are met, the Commission, in its discretion, may pay out of county funds the legal expenses of the sheriff incurred in connection with a criminal indictment of the sheriff.

CONCLUSION

QUESTION 2

If the answer to question 1 is no, am I allowed to pay my attorneys fees and other legal expenses from existing campaign funds?

FACTS AND ANALYSIS

Section 17-22A-7 of the Fair Campaign Practices Act provides for the use of campaign contributions. It states, in pertinent part, as follows:

(a) A candidate, public official, or principal campaign committee as defined in this chapter, may only use campaign contributions, and any proceeds from investing the contributions that are in excess of any amount necessary to defray expenditures of the candidate, public official, or principal campaign committee, for the following purposes:

* * *

(2) Expenditures that are reasonably related to performing the duties of the office held. For purposes of this section, expenditures that are reasonably related to performing the duties of the office held do not include personal and legislative living expenses, as defined in this chapter.

ALA. CODE §17-22A-7 (Supp. 1999). The term “personal and legislative living expenses” is defined as follows:

Household supplies, personal clothing, tuition payments, mortgage, rent, or utility payments for a personal residence; admission to an entertainment event or fees for a country club or social club, unless tied to a specific campaign event or functions involving constituents; and any other expense, excluding food and beverages, that would exist irrespective of the candidate’s campaign or duties as a Legislator. Personal and legislative living expenses shall not include expenses for food, beverages, travel, or communications incurred by the Legislator in the performance of the office held.

ALA. CODE §17-22A-2(9) (Supp. 1999).

This Office has never addressed the question whether the payment of legal fees incurred pursuant to the defense of a criminal indictment or prosecution is an expense “reasonably related to performing the duties of the office held.” Under federal election laws, excess campaign funds may be used to defray “ordinary and necessary expenses incurred in connection with the duties of the office holder.” 2 U.S. C. § 439a. The Federal Election Commission has ruled in an advisory opinion that legal fees incurred pursuant to the defense of a criminal prosecution relative to official conduct in office may be paid from campaign funds. Federal Election Commission Advisory Opinion No. 1977-39, August 26, 1977. In the opinion of this Office, section 17-22A-7(a)(2) of the Code of Alabama should be interpreted in the same manner as the federal election law. Not only is the language of each statute similar, under Alabama law, as stated above, this would be a legitimate expense of the office if the conditions stated are met. Thus, if the county commission concludes that the conditions are met to authorize county funds being spent, then campaign funds can be used in addition to or in lieu of county funds. Thus, if the conduct involved in the criminal prosecution is conduct related to the performance of the duties of the office of the sheriff, excess campaign funds may be used to pay the legal fees incurred.

CONCLUSION

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:

CAROL JEAN SMITH

Chief, Opinions Division

BP/BFS

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