~~STATE OF ALABAMA

ETHICS COMMISSIONMAILING ADDRESS

P.O. BOX 4840

MONTGOMERY. AL36103-4840

STREET ADDRESS

RSA UNION

100 NORTH UNION STREET

SUITE 104

MONTGOMERY, AL 36104COMMISSIONERS

Josephine M. Venable. Chair

Anthony Humphries. Vice-ChairDr. Jewell W. Henderson

Timothy P. Chinaris. Esq.

Stewart Hill Tankersley. M.D.

James L. Sumner. Jr.Director

TELEPHONE (334) 242-2997

FAX (334) 242-0248

WEB SITE: www.ethics.alabama.gov

August 7,2013

ADVISORY OPINION NO. 2013-08

The Honorable Brian C.T. Jones

District Attorney39thJudicial CircuitP.O. Box 415

Athens, Alabama 35612

Use Of Office For Personal Gain/CountyCommission Renting Building AsTemporary Facilities For The DistrictAttorney's Office And Circuit Clerk WhenThe Building Is Owned By An LLCComposed Of The District Attorney AndHis Parents

The Limestone County Commission mayrent an office building from a limitedliability company owned by the DistrictAttorney and his parents for temporaryfacilities; provided, the County initiated thetransaction; that it is the best available

location; that it is an otherwise arms-lengthtransaction; and provided further, that theterms of the lease do not exceed the actual

time of occupancy and the square foot valueof the lease is consistent with the fair marketvalue.

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The Honorable Brian C.T. Jones

Advisory Opinion No. 2013-08Page two

QUESTION PRESENTED

May the Limestone County Commission rent a building for temporary accommodationsfor the District Attorney's Office and the Circuit Clerk's Office, when the building is owned by alimited liability corporation, owned by the District Attorney and his parents?

FACTS AND ANALYSIS

The facts as have been provided to this Commission are as follows:

Brian C.T. Jones is the District Attorney for the 39thJudicial Circuit located in Athens,Alabama.

The Limestone County Commission has undertaken the renovation of the CountyCourthouse in Athens. The plan was to completely overhaul the second and third floors withnew courtrooms and judges' offices. The District Attorney's Office and the Circuit Clerk'sOffice, located on the first floor, were originally informed that the construction overhead would

not affect daily operation and that their offices would not be moved during the course of therenovation. While operating under this belief, the County Commission purchased a building andbegan renovations for temporary placement of judicial offices.

On Wednesday, July 10th,the Circuit Clerk and Mr. Jones were informed by theConstruction Manager that due to safety concerns and the ever-growing amount of alterations tothe first floor (sewer runs underneath DA's Offices), they were, in fact, going to have to relocate.Since they were not included in the planning of the temporary building, there was no availablespace for either office. The Clerk and Mr. Jones were both informed that the relocation could

last approximately 18 months. On Thursday, July 11th,the Circuit Clerk and Mr. Jones met

individually with the Commission Chairman regarding their relocation and the necessity for eachagency to find a suitable office space to rent. In these meetings, they were informed that theywould have to relocate in 30 to 60 days. Also in this meeting, the Commission Chairmaninquired as to the availability of the office building owned by Mountain Brook LandDevelopment, LLC (MLD), which is located at 218 West Market Street, directly across the streetfrom the Courthouse.

The Honorable Brian C.T. Jones

Advisory Opinion No. 2013-08Page three

MLD's building consists of2400 square feet of office space and 2000 square feet ofstorage. The building is 100% complete and ready for immediate occupancy. MLD is a three-person limited liability company comprised of Don W. Jones (Mr. Jones' father), Marilee T.Jones (Mr. Jones' mother), and himself.

The County Commission has a statutory requirement to provide the District Attorneywith office space. The County has expressed interest in renting the office building owned byMLD for the period of time that the first floor will be uninhabitable. As previously stated, theMLD building is ready for immediate occupancy and will not require the County to spend anymoney for renovations prior to relocation. Any rent paid to MLD for office space will be paidfor by the County Commission. Mr. Jones asked whether or not MLD is precluded from rentingthe building to the County Commission for use by his office and, if so, is MLD precluded fromrenting the building to the County Commission to house the Circuit Clerk's Office.

Mr. Jones states that his father, Don W. Jones, is the President ofMLD, and will be

negotiating with the County on the rental price. With previous tenants, the monthly rent for theentire building was the total mortgage payment for the year, plus total insurance for the year,plus total taxes for the year, plus total utilities for the year, divided by 12 months, and thendivided between the tenants of the four individual office spaces. Mr. Jones also states that hisfather always adds a "wear & tear" factor into the lease price.

Mr. Jones anticipates that his father will calculate the rent for the County in the samefashion. However, due to problems encountered in the past, he expects that utilities will be paiddirectly by the County. He will not be involved in negotiations.

The Alabama Ethics Law, Code of Alabama 1975, Section 36-25-1(26) defines a publicofficial as:

"Any person elected to public office, whether or not that person has taken office, by thevote of the people at state, county, or municipal level of government or theirinstrumentalities, including governmental corporations, and any person appointed to aposition at the state, county, or municipal level of government or their instrumentalities,including governmental corporations. For purposes of this chapter, a public officialincludes the chairs and vice-chairs or the equivalent offices of each state political party asdefined in Section 17-16-2."

The Honorable Brian C.T. Jones

Advisory Opinion No. 2013-08Page four

Section 36-25-1(14) defines a family member of the public official as:

"The spouse, a dependent, an adult child and his or her spouse, a parent, a spouse'sparents, a sibling and his or her spouse, of the public official."

Section 36-25-5(a) states:

"No public official or public employee shall use or cause to be used his or her officialposition or office to obtain personal gain for himself or herself, or family member ofthepublic employee or family member of the public official, or any business with which theperson is associated unless the use and gain are otherwise specifically authorized by law.Personal gain is achieved when the public official, public employee, or a family memberthereof receives, obtains, exerts control over, or otherwise converts to personal use theobject constituting such personal gain."

The Ethics Law prohibits a public official or public employee from, in any manner, usingtheir official position for their personal benefit. In the facts as provided, the County is requiredto provide office space for both the District Attorney's Office and the Circuit Clerk's Office.Due to circumstances beyond their control, the County Commission has found it necessary torent space for both the District Attorney and the Circuit Clerk.

The important consideration in this scenario is that Mr. Jones did not use his position orthe influence of his office to encourage the Limestone County Commission to rent space fromhis LLC. In fact, the Chairman of the Limestone County Commission approached Mr. Jones andinquired as to the availability. Under the circumstances, it appears that the property owned byMLD is the best available space for the County to rent.

Based on the facts as provided and the above law, MLD may rent office space to theCounty Commission to house both the District Attorney's Office and the Circuit Clerk's Office;provided, the County Commission initiated the transaction; that it is the best available space tobe utilized by the County; that it is an arms-length transaction between MLD and the CountyCommission; and provided further, that the terms of the lease do not exceed the actual time ofoccupancy and the square foot value of the lease is consistent with the fair market value.

The Honorable Brian C.T. Jones

Advisory Opinion No. 2013-08Page five

CONCLUSION

The Limestone County Commission may rent an office building from a limited liabilitycompany owned by the District Attorney and his parents for temporary facilities; provided, theCounty initiated the transaction; that it is the best available location; that it is an otherwise arms-length transaction; and provided further, that the terms of the lease do not exceed the actual timeof occupancy and the square foot value of the lease is consistent with the fair market value.

AUTHORITY

By 5-0 vote of the Alabama Ethics Commissio

sepChairAlabama Ethics Commission