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Is Coal de Minimus? The Problem with the Alabama Ethics Commission

Posted By Joe Luppino-Esposito On January 18, 2012 @ 3:00 pm In Legal | Comments Disabled

In the wake of a number of corruption scandals, the Alabama legislature endeavored to reform their system by enacting tough ethics laws.

But does that mean that a student can no longer give a teacher a Christmas gift?  For some students and parents in the Yellowhammer State, that may mean flirting with serious jail time, according to the state’s ethics commission.

Is it too late to return Christmas gifts?

In two opinions issued late last year, the commission explained at length that under the amended code “[t]he suggestion that it is harmless for a school child to give a Christmas gift to their teacher ignores the potential for abuse.”  Although they explain that “common sense is also an important part of the equation,” the commission applies little in speculating that “there are subtle ways to attempt to influence official action.”

Section 36-25-7 states that one may not offer or give “anything for the purpose of corruptly influencing official action, regardless of whether or not the thing solicited or received is a thing of value” to a public official or employee, or to any members of that official or employee’s family.  Likewise, the aforementioned parties cannot solicit or receive such things.  The Alabama legislature added “corruptly” to the statute, and further clarified it by defining it as “to act voluntarily, deliberately, and dishonestly to either accomplish an unlawful end or result or to use an unlawful method or means to accomplish an otherwise lawful end or result.”

“It seems like the Ethics Commission’s opinion is disconnected from the letter of the underlying ethics law,” said Cameron Smith of the Alabama Policy Institute.  “They are trying to provide more guidance than was originally requested,” he added.

The questions asked of the commission in October related to the definition of de minimus, to which the commission responded that they would not “arbitrarily establish an amount” but that “[t]he test is whether or not the item being given has any resale value or value to others.”  Therefore, certain promotional items that are meant for “advertising, public relations, goodwill, etc.” are de minimus but “gifts such as turkeys or hams given as seasonal gifts, do have a monetary value.”

In the December opinion, the question related to vendors giving Christmas gifts to teachers, but the commission explicitly expanded it to include guidance for students giving to teachers, explaining the differences between personal gifts and gift for public offices, generally.  It also provided a non-inclusive list of acceptable gifts, including fruit baskets, homemade cookies, coffee mugs filled with candy, ornaments, notebooks, and CDs or books “of a nominal value.”

In addition to creating yet another vague term on which to rely, “nominal value,” the Commission went on to speculate about a middle schooler who wants a better grade, or a college senior who wants to get into the Harvard Law School, and how these gifts might be their attempt to “corruptly influence[e]” a teacher.

According to Smith, the Ethics Commission’s opinions serve as guidance to attorneys and others who might want to rely on them.

To their credit, Governor Robert Bentley and the legislature have already started to work up some ways to remedy the problem.  A change is sorely needed, because an “intentional” violation of the ethics code is a Class B felony, punishable by a minimum of two years and a maximum of 20 years imprisonment and up to $30,000 fine.  A simple violation of the statute results in a Class A misdemeanor, punishable by up to 1 year imprisonment and up to $6,000 fine.

Years in prison and thousands of dollars in fines for giving a Christmas gift?  That’s a policy that even Scrooge wouldn’t endorse.


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