Branco Antoet Aron January 8, 2019 (Me. Thomas B. Altritton Executive Director ‘Alabama Ethics Commission 100 North Union Szeet, Suite 108 Montgomery, AL 36104 Re: Request for Formal Advisory Opinion Regarding Sutus of Members of the Biraingham Airport Authority Board of Directors Unde the Alabama Ethics Act Dear Mr. Albiton (On behalf of the Birmingham Aieport Authority's Board of Directors (“Board”), | am suiting this request to the Alabama Ethics Commission ("Commission") fora formal advisory ‘opinion regarding several questions related tothe status of Board menbers under the Alabama Ethics Act, Ala. Cate §36-25-1 et seq. ("Act” or "Ethics Act’) ‘The Birmirgham Airport Authority ("Authority") was incorpomted on Tune 6, 1986 as & public nonprofit corporation under the provisions of the Code of Alabama, Title 4, Chapter 3. ‘Anicle 2. The Authority is responsible for managing and operating the Biminghan-Shutlesworth International Aieper (“Airport”), which is owned by the City of Bieningham, The Airport i= ‘operated by the Authority pursuant to 2 SO-year lease, which became efective on September 16, 1986 and expires cn September 15, 2085./ The Authority is governed by a seven (7) member Board, whose members are nominated by the Mayor of Birmingham and elected by Birmingham City Council. See Ala. Code § 4-3-4. ‘The Authotity’s operating expenses consist of personnel costs, contractual services, ities, maintenance, materials and supplies, professional services, deprecation and amortization, and equipment renal and repairs. The opeaiions and improvements athe Airport are funded by airport user charges Passenger Facility Charges (PFCs), Customer Fact Charges (CFCS), bond funds, and funds received from the Federal Aviation Administration (FAA) and the Transportation Security Administration (TSA), Of particular note for purposes ofthe Board's questions herein is ‘hat no general tax fand revenues ae used to fund the Authority's operating expenses ‘The Board is submitting this request fora formal advisory opinion to obtain answers to several questions regarding what obligations, if any, Board members have under the Act. Specifically de Bear presents sx questions “See Comprehensive Annual Financial Reportfor the Fiscal Year Ending June $0, 2017, avaible at hips: /wwr,fybirmingham comp. contenUuploade/2018I07/BAA-CAFR.2017-cbook pa.Basuncaows Aavoxr Amer’ 1, Are Board members subject tothe Eties Act? 2. Given that employees of the Authority are compensited from funds generated from noa- public sourees, are they nonetheless considered Public Employees subject othe Act? 3. Assuming Board members ae subject to the Act, are they required to file Statements of Economic Interest? 4. Assuming Board members ate subject othe Act, ifthe Authority hires lobbyist through authorization provided vin at least « majority vote of the Boar, is each individual Board ‘member considered a principal under the Act? Is the analysis different for an individval Board member who voted against providing authorization to hie the lobbyist but whose vote was ultimately defeated by majority vol in favor of providing the authorization? I £0, please explain 'S. Does the act of sigting the Principal's Statement for Lobbyist Registration or the Prinepal's Quarterly Statement of Lobbying Activities on behalf ofthe Authority, standing alone, make the indivdual signing those forms a principal under the Act? Ts the analysis different ifthe indivdual who signs the principal-telated filings has no authority or supervision over the hiring, firing, or activities of the lobbyist, but merely signs a a funetion of his o her job duties? IF 50, please explain. 6. The Authority has the responsibilty to increase and improve ar service from airlines and to promote the Airpor. What limitations does the Act place on this marketing responsibility? Each of these questions is adcessed below, 1, Ate Board members subject othe Ethics Act? ‘The Boar is aware of 1996 advisory opinion from the Ethics Commission issued tothe Mobile Airport Authority that addresed whether members ofthe Mobile Airport Authority Board "Mobile Board") ave consideted public officials subject othe Ethics Act, See AO-S4. In tha advisory opinion, the Commission determined thatthe members ofthe Mobile Board were subject to the Act. As discussed below, the Board believes this question is ripe for consideration bere ‘because itis unclear whether the Mobile Airport Authority operated on general tax fund revenues a the time the Commission Sued AO96-54, and if t did, AOB6-54 is silent as fo wheter the ‘Commission considered the mture ofthe funding in reaching its conclusion, Inreaching its conclusion, AO96-S4 relies only on the Act's definitions for “Governmental Corporations and Authariies,’ Publi Official,” and “Public Employee." The definitions fr each ‘of those terms appear to have the same substantive application tothe Authority and Board now as they dd to the Mobile Airpor: Authority and Mobile Board when the Commission issued AO96-Baxancavs Anvoer Amex ‘54. The Commission nted that “Lin 1995, the Alabama Legislature broadened the definition of a “public official” in the Alabama Ethice Law to include the newly-defined “governmental corporations and authcites,” pursuant to Act No. 95-194.” AO2015-06. Prior tothe addition of the “governmental corporations and authorities” language to the Act in 1995, members of the Mobile Board were not considered public officials subject tothe Act.? According to AO96-54, the addition ofthe “goverrmenal corporations and authorities” language to the Actin 1995 rendered Mobile Board member: subject tothe Act. ‘What remains unclear to the Boar is whether the fact thatthe Authority uses no general tax fund revenues to operate or maintain the Airport affects the Commission's analysis of the ‘Board members’ status as public officials subject to the Act. The Board respectfully requests the Commission's guidance as to whether ts members ae subject to the Act. 2. Given that employees of the Authority are compensated from funds generated fom non= ‘public sources, ate they nonetheless considered Public Employees subject tothe Act? In AO96-54, the Commission concluded that “employees ofthe Mobile Aigport Authority are public employees; and therefore are subject othe Alabama Ethics Law.” AQ96-S4 at p. 4. As referenced above, no general tax fund revenues are used to fund the Authority's operating expenses, which include the compensation and benefits of the Authority's employees. For similar reasons set forth above in Question I, the Board respectfully requests the Commissicn’s guidance as (o whether the employees of the Authority are Public Employees subject to the Actin light of the fat that they compensated from funds generated from non-public soUrees. 43, Assuming Boned members are subject to the Act are they required fo fle Statements of Economic Intent? In. 4096.54, th: Commission concluded that because “the Mobile Airport Athority does ‘ot have statewide jurisdiction, board members fof the Mobile Airport Authority] ae n0t required to file Statements of Economic Interest (*SOEI") unless their base pay with th Board is $50,000 for more per yea.” AOM6-S4 at p 4 Like the Mobile Airport Authority the Authority does not have statewide jurisdiction. Further, Boant members are not compensited for their service, therefore they do 20t meet the '$75,000 base pay threshold for fling SOEI set forth in the curent version ofthe Actat Ala, Code $36-25-144902)? * See AO96-54 tp 3 (referencing that “the members ofthe [Mobile] Boord and employees ofthe [Mobile] Airport Thad] not been considered subject 10 the Ethics Act” prior Io the 1995 amendment. > Since the Commission issued AO96-S4,the $50,000 threshold for ing SOEI has been increased 10 $75,000. See Ala. Code § 36-25-14(a)2) (requiring the filing ofa yearly SOEI by’