Santa Claus May Be Coming to Town, but You May Want to Check YOUR List Twice, 1117 ALBJ, 78 The Alabama Lawyer 418 (2017)
| Author | Gregory P. Butrus and Othni J. Lathram |
| Position | Vol. 78 6 Pg. 418 |
Gregory P. Butrus and Othni J. Lathram
The holiday season is here and this inevitably leads to questions about the ethical and legal implications of holiday hospitality, gifts and gatherings. After all, it's fun to be Santa and no one wants to force others to be the Grinch. For lawyers, questions often arise about the rules that apply to their holiday interactions with judges-many of whom they have known for years.
There are two key state agencies with authority in this area. One is the Alabama Ethics Commission (AEC) and the other is the Alabama Judicial Inquiry Commission (JIC).1 The AEC has authority over all public officials and employees (and their family members in some cases) under the Ethics Act (36-25-1 et seq.) which includes judges and their staff. The JIC is established pursuant to Section 156 of the Alabama Constitution as the body with the authority to both provide guidance to, and enforce rules of conduct and ethics for, the judicial branch.
Any lawyer or judge trying to become familiar with what is generally permitted and prohibited in this area needs to be familiar with the applicable requirements set forth by both the AEC and JIC. The goal of this article is to provide background on the rules that apply to common holiday questions for lawyers and judges. Following an overview, it is organized in a scenario-based Q&A format. Please note that all of the Advisory Opinions (AOs) referenced below are available on the bar's website, and the AEC AOs are available on its website.
Historical Ethics Standard
Prior to December 2016, the overarching concern in this area was whether any Christmas "gift" (e.g., food, beverage, tangible item or social hospitality) was permitted by the more restrictive AEC requirements. This is because since the late 1990s, the AEC had held that no public official or employee could accept any "thing of value" from any provider-regardless of the provider's status.2 The basis of the opinion was a concern that allowing anything more than a de minimis gift would be tantamount to the public employee using their position for impermissible "personal gain." That AEC interpretation was limiting enough that there was little room for any JIC guidance to operate.
December 2016 Change
Things changed in December 2016 when the AEC approved AO 2016-34. This 2016 Opinion overruled prior AEC guidance (including a directly on point 2011 AEC AO) and removed the "thing of value/personal gain " standard in favor of a more flexible circumstances-based test approach to Christmas gifts for public officials and employees.[3] In that AO, the AEC stated: "In [our 2011 AO], the Commission relied on its longstanding 'personal gain/thing of value' approach in applying the Section 36-25-5(a) 'use of office for personal gain' restrictions. That approach had been followed for many years prior to 2010. Following the 2010 revisions to the Act and the addition of Section 36-25-5.1, however, that well-intended approach to interpreting the Section 36-25-5(a) 'use of office for personal gain' restrictions is no longer warranted and has only led to confusion as to the relationship between Sections 5(a) and 5.1(a)." (Emphasis added).
Instead, the AEC's 2016 AO included "guidelines" that are intended as "practical guidance" for approaching these issues. It explained that the purpose of the Ethics Act is the prevention of "official corruption" and then looked at the following as factors on whether a gift is permitted: (1) The "relative positions of the giver and the recipient ... including whether their relationship presents an...
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