Comer v. City of Mobile

• Decision Date: 24 September 1976
• Parties: Donald COMER, III, et al. v. The CITY OF MOBILE et al. SC 1830.
• Court: Alabama Supreme Court

Page 742

337 So.2d 742

Donald COMER, III, et al. v. The CITY OF MOBILE et al.

SC 1830.

Supreme Court of Alabama.

Sept. 24, 1976.

William J. Baxley, Atty. Gen., and William T. Stephens and Winston T. Lett, Asst. Attys. Gen., for appellants.

J. Michael Druhan, Jr., Mobile, for appellees.

BEATTY, Justice.

Appellants, Donald Comer, III, George E. Bagley, Alto V. Lee, III, Leslie S. Wright and Melvin G. Cooper, appeal a final order and decree by Circuit Judge Perry O. Hooper which held Act No. 130 of the 1975 session of the Alabama Legislature unconstitutional in its entirety as well as holding that the incumbent Ethics Commissioners (appellants) are holding office illegally, having not been appointed under Act No. 130. We affirm in part and reverse in part.

THE HISTORY

Act No. 1056 of the 1973 session of the Alabama Legislature, the Alabama Ethics Law, was enacted by the Legislature on September 13, 1973 and was signed into law by the Governor on the following day. As originally enacted, Act No. 1056 applied only to state officials and employees. It delegated to the State Ethics Commission the authority to adopt rules of ethical conduct for county and municipal officials and employees similar to the requirements the state law imposed upon state officials and employees.

In order to facilitate the understanding of this case, we include the pertinent sections of Act No. 1056, which follow:

'To establish a state ethics commission and to provide a state ethics law, which: requires disclosures of certain economic interests and certain family connections to be filed by state officials and certain state employees and by persons having certain business dealings with the state or its agencies or instrumentalities, proscribes certain practices by state officials and employees which conflict with the proper safeguarding of the public trust; requires the registration of persons engaged in activities designed to influence legislation and the making of certain reports by such persons and otherwise regulates such activities of such persons; prescribes penalties; provides for the enforcement of this act; prescribes the powers and duties of the ethics commission; and authorizes the commission to prescribe, promulgate and enforce rules, consonant with this law, to govern activities and disclosures by county and municipal officials needed to safeguard the public trust in such governmental units.

Be It Enacted by the Legislature of Alabama:

Section 1.

(a) It is essential to the proper operation of democratic government that public officials be independent and impartial; that governmental decisions and policy be made in the proper channels of the governmental structure; that public office not be used for private gain other than the renumeration provided by law; and that there be public confidence in the integrity of government. The attainment of one or more of these ends is impaired whenever there exists a conflict between the private interests of an elected official or a government employee and his duties as such. The public interest (b) It is also essential to the proper operation of government that those best qualified be encouraged to serve the government. Accordingly, legal safeguards against conflicts of interest must be so designed as not unnecessarily or unreasonably to impede the recruitment and retention by the government of those men and women who are best qualified to serve it. An essential principle underlying the staffing of our government structure is that its elected officials and employees should not be denied the opportunity, available to all other citizens, to acquire and retain private economic and other interests, except where conflicts with the responsibility of such elected officials and employees to the public cannot be avoided.

therefore, requires that the law protect against such conflicts of interest and establish appropriate ethical standards with respect to the conduct of elected officials and government employees in situations where conflicts exist.

(c) Also, the legislature hereby declares that the operation of responsible democratic government requires that the fullest opportunity be afforded to the people to petition their government for the redress of grievances and to express freely to individual member of the legislature, to committees of the legislature, and to officials of the Executive branch, their opinions on legislation, on pending executive actions, and on current issues; and that, to preserve and maintain the integrity of the legislative and administrative processes, it is necessary that the identity, expenditures and activities of certain persons who engage in efforts to persuade members of the legislature or the executive branch to take specific actions, either by direct communication to such officials, or by solicitation of others to engage in such efforts, be publicly and regularly disclosed. The provisions of this act shall be liberally construed to promote complete disclosure of all such information and so as to assure that the public interest will be fully protected.

(d) It is the policy and purpose of this Act to implement these objectives of protecting the integrity of the government of this state and of facilitating the recruitment and retention of qualified personnel by prescribing essential restrictions against conflicts of interest in state government without creating unnecessary barriers to public service.

Section 2. Whenever used in this Act, the following words and terms shall have the following respective meaning unless the context clearly indicates otherwise:

(k) 'State Official' means any elected official of the legislative, judicial or executive branch of state government, and any person appointed under Alabama Law to an office in either branch where, in the conduct of such office, administrative and discretionary powers attend the appointment. Also, this definition shall mean an appointed member of any commission or committee which has administrative or policy-making control of any governmental function, but shall not mean members of commissions or committees functioning solely for advisory or research purposes.

Section 17.

(a) There is hereby created a State Ethics Commission which shall be composed of five members, each of whom shall be a fair, equitable citizen of this state and of high moral character. No member of the commission shall be eligible for appointment to succeed himself, except that members appointed to the first commission may each be appointed one time to succeed himself. One member of such commission shall be appointed by each of the following officers: the Governor, the Lieutenant-Governor, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the Attorney General. The members of the first commission shall be appointed for terms of office expiring one, two, three, four and five years, respectively, from the date on which this act becomes As soon as all the members of the board have been appointed the Governor shall call and provide for the holding of an organizational meeting of the commission. Such meeting shall be set for not less than forty-five days nor more than sixty days after this act becomes effective.

law, the member being appointed by the Governor having the one-year term, the member appointed by the Lieutenant-Governor having the two-year term, the member appointed by the Speaker of the House having the three-year term, the member appointed by the Chief Justice having the four-year term, the member appointed by the Attorney General having the five-year term. Successors to the members of this first commission shall each be appointed for terms of five years and until their successors are appointed and have qualified. If any of the above listed appointing authorities should fail to make his appointment to the first commission within forty-five days after this act becomes law or to fill a vacancy forty-five days after such vacancy occurs, then the Governor may make such appointment; but the term of such appointee shall be for the period prescribed for a member appointed by the officer authorized to make such appointment but who failed to do so. If at any time there should be a vacancy on the commission, a successor member to serve for the unexpired term applicable to such vacancy shall be appointed by the same appointing authority as the member whose unexpired term such successor is to fill. The commission shall elect one member to serve as chairman of the commission and one member to serve as vice chairman. The vice chairman shall act as chairman in the absence or disability of the chairman or in the event of a vacancy in that office.

Appellants were appointed to their positions on the Commission as provided by Act No. 1056. Subsequently, the Commission prescribed financial disclosure forms to be filed periodically by persons covered by Act No. 1056 and adopted rules of ethical conduct for county and municipal officials and employees.

The Legislature considered revision of the Ethics Law in the spring of 1975. House Bill 240, introduced on May 6, 1975, was altered by the Senate to become Act No. 130 of the 1975 session of the Legislature--an Amendatory Act relating to and re-enacting Act No. 1056. Pertinent parts of Act No. 130 follow:

To amend and re-enact Act. No. 1056, S. 1, Regular Session 1973 (Acts 1973, pg. 1699); entitled, An Act to establish a state ethics commission and to provide a state ethics law, which: requires disclosures of certain economic interests and certain family connections to be filed by state officials and certain state employees and by persons having certain business dealings with the state or its agencies or instrumentalities, proscribes certain practices by state officials and employees which conflict with the proper safeguarding of the public trust; requires the registration of persons engaged in activities designed to influence legislation and the making of...