Lambert v. Wilcox County Com'n

• Decision Date: 25 June 1993
• Citation: 623 So.2d 727
• Parties: Frank LAMBERT, et al. v. WILCOX COUNTY COMMISSION, et al. 1911747.
• Court: Alabama Supreme Court

Page 727

623 So.2d 727

Frank LAMBERT, et al. v. WILCOX COUNTY COMMISSION, et al.

1911747.

Supreme Court of Alabama.

June 25, 1993.

J. Garrison Thompson of Pitts, Pitts and Thompson, Selma, and Donald D. McLeod, Camden, for appellants.

Mary E. Pilcher of Webb, Crumpton, McGregor, Davis & Alley, Montgomery, for appellees.

ALMON, Justice.

The plaintiffs, Frank Lambert, Greg Oakley, Roberta T. Jordan, David Wright, and Earnest Boyd (hereinafter "Taxpayers"), appeal from a judgment in favor of the defendants, the Wilcox County Commission and four of its members in their individual and official capacities ¹ (hereinafter "Commission"), in an action for a declaratory judgment and injunctive relief. The Taxpayers sought a declaration of the legality of the Commission's adoption of a county ordinance increasing the sales tax in Wilcox County by one-half cent for one year and an injunction against implementation of the ordinance. The one dispositive issue raised by the Taxpayers is whether a member of the Wilcox County Commission, employed as a bus driver by the Wilcox County Board of Education, was prohibited by the Alabama Ethics Law from voting on a sales tax increase benefiting the County Board.

The undisputed facts are as follows. On January 27, 1992, the Wilcox County Commission considered a proposal to levy a one-year, one-half cent sales tax in order to refinance a bond issue authorized years earlier for the construction of a high school. The purpose of the proposal was to take advantage of then lower interest rates. Pursuant to its authority under § 40-12-4, Alabama Code 1975, the Commission adopted the ordinance, by a vote of 3-2. ²

One of the county commissioners voting with the majority was Darryl Perryman, who was employed as a bus driver by the County Board. Before voting on this proposal, Darryl Perryman asked S.E. Collier, superintendent of the County Board, whether funds raised from the sales tax increase would become part of the general fund from which his salary as bus driver was paid. Collier informed Perryman that his salary was not paid from the general fund and that the funds raised by the sales tax increase would be used only to retire the bond issue.

The Taxpayers filed an action for declaratory judgment and injunctive relief, alleging that because Perryman was an employee of the County Board, he was ineligible, under § 36-25-5(a), Ala.Code 1975, to vote on the proposed ordinance. The Taxpayers argued in the trial court that because Perryman was ineligible to vote, under the Alabama Ethics Law, there were not enough votes to pass the ordinance and the ordinance was, therefore, invalid or void. The Taxpayers sought a judgment enjoining implementation of the ordinance and prohibiting Perryman and "any other Commissioner employed by the Wilcox County Board of Education from voting on future Wilcox County School System Appropriations." After a nonjury trial, the court entered a judgment on March 17, 1992, in favor of the Commission, holding that Perryman's vote on the proposed sales tax increase did not violate the Alabama Ethics Law because Perryman had received no direct, personal, financial gain from his action. On April 3, 1992, the Alabama Ethics Commission issued an advisory opinion stating that there was probable cause to believe that Perryman violated the Ethics Law and that the Commission was reporting the case to the Wilcox County district attorney for appropriate legal action. On April 10, 1992, the Taxpayers filed a "Motion to Alter or Amend Judgment," supported by the April 3, 1992, advisory opinion. The trial court denied this post-trial motion, and the Taxpayers appealed.

The general issue raised by the Taxpayers is whether Perryman had a disqualifying conflict of interest under § 36-25-5(a), Ala.Code 1975, and was therefore ineligible to vote on the proposal to increase the sales tax.

Section 36-25-5(a) provides:

"(a) No public official or employee shall use an official position or office to obtain direct personal financial gain for himself, or his family, or any business with which he or a member of his family is associated unless such use and gain are specifically authorized by law."

The Taxpayers argue that Perryman was ineligible to vote, because, as a County Board of Education employee, he obtained "direct personal financial gain for himself" by voting on a school funding measure. In the alternative, the Taxpayers argue that Perryman's employer, the County Board of Education, constitutes a "business with which he ... is associated," and that § 36-25-5(a) therefore prohibits him from voting on a proposed ordinance that will result in direct financial gain to the County Board.

In construing § 36-25-5, this Court is aided by certain rules of statutory construction:

"The fundamental rule of statutory construction is that this Court is to ascertain and effectuate the legislative intent as expressed in the statute. League of Women Voters v. Renfro, 292 Ala. 128, 290 So.2d 167 (1974). In this ascertainment, we must look to the entire Act instead of isolated phrases or clauses; Opinion of the Justices [No. 153], 264 Ala. 176, 85 So.2d 391 (1956), and words are given their plain and usual meaning. Adams v. Mathis, 350 So.2d 381 (Ala.1977). Moreover, just as statutes dealing with the same subject are in pari materia and should be construed together, League of Women Voters, supra, parts of the same statute are in pari materia and each part is entitled to equal weight."

Darks Dairy, Inc. v. Alabama Dairy Comm'n, 367 So.2d 1378, 1380-81 (Ala.1979).

The first question raised by the Taxpayers' argument is whether Perryman obtained any "direct personal financial gain for himself" within the meaning of § 36-25-5(a) by voting on the sales tax ordinance. In Opinion of the Justices No. 317, 474 So.2d 700 (Ala.1985), the Justices answered a request for an advisory opinion dealing with similar issues. Two of the questions presented were (1) whether it was constitutional under § 82 of the Alabama Constitution of 1901 for members of the state House of Representatives who were employed or whose spouses were employed by the public educational system to vote on a bill granting pay increases to teachers and other employees and (2) whether such action violated § 36-25-5(a).

Section 82 of Article IV of the Alabama Constitution of 1901 provides:

"A member of the legislature who has a personal or private interest in any measure or bill proposed or pending before the legislature, shall disclose the fact to the House of which he is a member, and shall not vote thereon."

Deciding only the issue relating to § 82, the Justices expressed the opinion that "it is constitutional for an educator/legislator to vote on a pay raise for teachers, at least so long as the bill does not affect the legislator in a way different from the way it affects the other members of the class to which he belongs." Opinion of the Justices No. 317, 474 So.2d at 704. The Justices construed the phrase "personal or private interest" in § 82 to mean "an interest affecting the legislator individually or as a member of a small group." Id. at 704. The Justices, however, declined to answer whether the actions of educator legislators violated § 36-25-5(a), on the ground that the question involved the construction of a statute that had already passed the legislature, not the constitutionality of pending legislation. Id. Nevertheless, the Justices noted that their analysis of § 82 "would appear to apply to 'direct personal financial gain' in § 36-25-5(a)." Id.

The authorities discussed and the analysis set forth in Opinion of the Justices No. 317, supra, in regard to § 82 of the Constitution also establish that the phrase "direct personal financial gain" in § 36-25-5(a) can only mean, as regards the facts of this case, "an interest affecting the legislator individually or as a member of a small group." Supporting this construction of the statute are the language of § 36-25-5(a), its legislative history, and the legislature's avowed intent that the Ethics Law balance various public policy objectives. First, we note that by its own language § 36-25-5(a) prohibits only those uses of official positions or offices that result in financial gain that is "direct" and "personal."

Second, changes to § 36-25-5(a) made by 1975 Alabama Acts, No. 130, show inter alia that when the legislature amended and reenacted the Ethics Law in 1975, it intended to define more narrowly the class of private interests giving rise to a potential conflict with a public official's or public employee's duties. Act No. 130 amended § 36-25-5(a) by adding the words "direct" and "personal" to qualify "financial gain." ³ Before the enactment of Act No. 130, § 3 of the Ethics Law, now codified, as amended, at § 36-25-5(a), provided as follows:

"No public official or employee shall use an official position or office to obtain financial gain for himself, or his family, or any business with which he or a member of his family is associated unless such use and gain are specifically authorized by law."

Moreover, our interpretation of "direct...