Langham v. State

• Decision Date: 06 May 1994
• Docket Number: CR-92-1302
• Citation: 662 So.2d 1201
• Parties: Carvine LANGHAM, John Forister, and John Chapman v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1201

662 So.2d 1201

Carvine LANGHAM, John Forister, and John Chapman v. STATE.

CR-92-1302.

Court of Criminal Appeals of Alabama.

May 6, 1994.

Barry Hess, Mobile, for Langham.

Michael Harbin, Mobile, for Forister.

Joseph Boswell, Mobile, for Chapman.

James H. Evans, Atty. Gen., and Joseph Marston III, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

The appellants, Carvine Langham, John Forister, and John Chapman, were convicted of violating the state ethics law, specifically of using their official positions to obtain direct personal financial gain, in violation of § 36-25-5(a), Code of Alabama 1975. Langham was convicted of 11 counts of ethics violations, and she was sentenced to two years' imprisonment on each conviction, with the sentence suspended, and she was ordered to pay $11,108 restitution. Forister was convicted of four counts of ethics violations, and he was sentenced to two years' imprisonment on each conviction, with the sentence suspended, and he was ordered to pay $2,094 restitution. Chapman was convicted of four counts of ethics violations, and he was sentenced to two years' imprisonment on each conviction, with the sentence suspended, and he was ordered to pay $2,079 restitution.

The evidence presented by the State revealed that the appellants were appointed by the city counsel of the City of Prichard to serve as members of the Prichard Water Works and Sewer Board. Incident to board membership, the appellants attended various conferences held throughout the country. Although the appellants received no actual compensation, they were paid for their automobile mileage in attending the conferences, given a $100 per diem expense allotment, and advanced payment of their hotel bills for each conference. The evidence revealed that the Water Works Board issued checks to the appellants in advance of these conferences to cover their anticipated expenses for attending these conferences. The evidence further revealed that the appellants failed to reimburse the Water Works Board for the unused portions of the advances.

I

The appellants argue that count I of each indictment, charging them with a violation of a state ethics law, was fatally defective because, they argue, the Water Works Board is not an instrumentality of the City of Prichard and, therefore, not an instrumentality of the State. Therefore, they argue, they are not public officials within the meaning of § 36-25-1(11), Code of Alabama 1975.

Section 36-25-1(11), Code of Alabama 1975, provides:

"PUBLIC OFFICIAL. Any person elected to public office by the vote of the people at state, county or municipal level of government or their instrumentalities and any person appointed to a position at the state, county or municipal level of government or their instrumentalities."

In support of their argument, the appellants contend that because the Prichard Water Works Board is a public corporation incorporated under § 11-50-310, et seq., Code of Alabama 1975 (Act No. 175, Ala. Acts 1951), it is not an instrumentality of the City of Prichard. The appellants argue that the legislature in 1951 enacted two acts (Act No. 175 and Act No. 775) pertaining to municipal water and sewer boards. Act No. 775 was codified in the Code of Alabama 1975, at § 11-50-340 et seq., and provided for the creation of boards of water and sewer commissioners by ordinance adopted by the governing body of a municipality. Therefore, the appellants contend that it was the legislature's intent in enacting two separate statutes that water and sewer boards established pursuant to Act 51-775 by city ordinance be instrumentalities of the municipality creating them as opposed to those water and sewer boards created by incorporation pursuant to Act No. 175.

In all cases concerning statutory construction, the court must ascertain and give effect to the intent of the legislature in enacting the statute. Gholston v. State, 620 So.2d 719, 721 (Ala.1993); Ex parte Jackson, 614 So.2d 405, 406 (Ala.1993); McClain v. Birmingham Coca-Cola Bottling Co., 578 So.2d 1299, 1301 (Ala.1991); Powers v. State, 591 So.2d 587, 588 (Ala.Cr.App.1991). "Such intent is gathered from the language of the statute itself, but reason and necessity for the statute are also relevant." Ex parte Sanders, 612 So.2d 1199, 1200 (Ala.1993). Additionally, " 'it is presumed that the legislature does not enact meaningless, vain or futile statutes.' " Powers v. State, 591 So.2d at 588, quoting Druid City Hospital Board v. Epperson, 378 So.2d 696, 699 (Ala.1979). See also Reserve National Insurance Co. v. Crowell, 614 So.2d 1005, 1010 (Ala.), cert. denied, 510 U.S. 824, 114 S.Ct. 84, 126 L.Ed.2d 52 (1993) ("a law will not be interpreted in such a way as to make it meaningless"). The appellants' contention is without merit, based on an examination of the statutes in question, the history of the state ethics law, and Harris v. Ethics Commission, 585 So.2d 93 (Ala.Civ.App.1991).

In Harris v. Ethics Commission, the appellant and other members of the Industrial Development Board of the City of Troy (hereinafter the "IDB") argued that the trial court erred in finding that the IDB was an instrumentality of the City of Troy and that, therefore, its members were "public officials" subject to the state ethics law. The appellant argued that the 1986 amendment to § 36-25-1(11), Code of Alabama 1975, made by Act No. 321, Ala.Acts. 1986, defining a "public official" as

"Any person elected to public office by the vote of the people at state, county or municipal level of government or their instrumentalities and any person appointed to a position at the state, county or municipal level of government or their instrumentalities"

was intended by the legislature to limit rather than to expand the entities to be accountable under the state ethics law. The Court of Civil Appeals stated:

"In 1975, the legislature clearly expressed its intent that IDB's be subject to the ethics laws [Act 75-130, § 2(k) ]. The language of the 1986 revision did not contravene that intent. We agree with the commission's argument that the 1986 use of the generic term 'instrumentality' was a perfectly sensible response to the problems noted by our supreme court in Comer [v. City of Mobile, 337 So.2d 742 (Ala.1976) ] and Bagley [v. City of Mobile, 352 So.2d 1115 (Ala.1977) ]. This is especially true in light of the number and type of boards not yet created that would escape scrutiny if only those boards specifically enumerated were covered by the ethics laws."

It is apparent that the Harris court interpreted the 1986 revision of the definition of "public official" to be a remedial measure taken by the legislature to correct defects in § 36-25-1(11). See e.g. Bagley v. City of Mobile, 352 So.2d 1115 (Ala.1977); Comer v. City of Mobile, 337 So.2d 742 (Ala.1976). Therefore, in resolving the issue before us, we must examine, as the Harris court did, the original provision of the state ethics law at issue here, § 36-25-1(11), in order to glean the legislature's intent. The definition of "public official" was added to the ethics law in the 1975 act amending that law:

"Public official means any elected official at the state, county, or municipal level of government and any person appointed under state, county, or municipal law to an office where in the conduct of such office such person has administrative and discretionary authority for the receipt or expenditure of public funds. This definition shall also include members of state boards, commissions, committees, councils, and authorities, however selected, Presidents, Vice-Presidents, Chief Purchasing Officials and Chief Financial Officials of all schools, colleges and universities of the State; members of city and county industrial boards, planning and zoning boards, school boards, boards of adjustment, utility boards, housing boards, public hospital boards and any boards, commissions, committees, authorities or councils having jurisdiction with respect thereto, in all cites whose population is more than 15,000 according to the last decennial census. This definition excludes members of all other boards not named including but not limited to those commissions, committees, councils, boards, [or] authorities, functioning solely for cultural or historical purposes and advisory boards members and members of boards of trustees of institutions of higher learning of the State of Alabama.' "

After examining the "original" definition of "public official," we hold that the Prichard Water Works and Sewer Board, regardless of whether it is a creature of incorporation or whether it was established by city ordinance, is a "utility board" and, thus, subject to the state ethics law.

Because both enactments, § 11-50-310 et seq. and § 11-50-340 et seq., are codified within the "public utilities" Chapter of the Alabama Code, and because the legislature clearly expressed its intent that "utility boards" be subject to the ethics law, no error occurred here. Moreover, because the 1986 revision eliminating the listing of individual boards, etc., did not contravene the legislative intent, it is harmonious with the applicable law. Harris.

II

The appellants argue that the trial court erred in denying their motion for a judgment of acquittal because, they say, the State's evidence was insufficient to sustain their convictions for violations of the ethics law. Specifically, they argue that the State's evidence that they checked out of certain hotels before the conferences were over fails to establish that they did not, for example, check into other hotels and attend the remainder of the conferences.

A brief rendition of the facts pertinent to this issue is as follows: The State presented the testimony of 12 hotel managers, hotel account executives, and hotel comptrollers, who each testified that the appellants checked into a hotel, checked out prior to their originally scheduled departure date, and paid their hotel bills in cash....