Ethically Speaking: “The Use of

The Use of Confidential Information

Educators are familiar with keeping student records private, under FERPA, the Family Educational Rights and Privacy Act. Less well known are the confidentiality provisions of the Alabama Ethics Act.

Alabama Code Section 36-25-8 says:

No public official, public employee, former public official or former public employee, for a period consistent with the statute of limitations as contained in this chapter, shall use or disclose confidential information gained in the course of or by reason of his or her position or employment in any way that could result in financial gain other than his or her regular salary as such public official or public employee for himself or herself, a family member of the public employee or family member of the public official, or for any other person or business.

Thus, under this provision of the Alabama Ethics Act, a government employee (or family member of that employee) cannot use confidential government information and then seek to profit from it. For example, a member of a county commission, upon learning from ALDOT confidential information about an upcoming exit to be constructed on the nearby interstate, cannot buy the land from unsuspecting landowners in hopes of selling the property for more to ALDOT. The prohibition equally applies to public education employees. Thus, if the board of education intends to expand an existing campus, or plans to build a new campus, a board of education member or employee cannot use that confidential information to buy property in hopes that the value will increase because of the school board’s construction plans.

Consider this scenario - - you have been unjustly named in a lawsuit brought by an “honor student.” You know that even though the student’s parents claim the student is an honor student, the student has been a discipline problem and is barely passing. Yet, that is confidential information. Your attorney will probably tell you that you cannot give out this confidential information. However, if the information becomes public at the trial of your case, then the fact that this information has become public removes any restrictions placed upon you under the Alabama Ethics Act.

Does it matter if the party whose information is confidential grants you permission to use the information? No, because the Alabama Ethics Act contains no provisions which allow permission to use information that is otherwise confidential under the Ethics Act. Thus, the Ethics Act still prohibits using confidential information even if the “individual does not mind the confidential information being disclosed publically.”

Further, reading the statute closely, one will see that the confidentiality provision of the Alabama Ethics Law does not require that the financial gain be realized. Instead,

Mark Boardman

Mark Boardman is an attorney who represents governments and employees of state and local governments, including 123 boards of education. In addition, he also defends individuals before the Alabama Ethics Commission.

Boardman has served as a past president of the Alabama Council of School Board Attorneys. He also served two years as president of the Alabama Association of Municipal Attorneys.

Boardman is a frequent presenter for CLAS as well as other education entities. The background of Alabama Ethics Commission Advisory Opinion 2009-003 is interesting. There, the Alabama judge who presided over a case involving the University of Alabama and the NCAA wanted to write a book about the lawsuit, which resulted in a $30 million verdict. The suit was brought by former Alabama assistant football coach Ronny Cottrell, whose lawyer painted University of Tennessee former coach Phil Fulmer and several Tennessee boosters as grand conspirators to take down the University of Alabama football program. The case involved former Tide booster Logan Young and the recruitment of Memphis blue-chip prospect Albert Means. The Alabama Ethics Commission held that the judge could not include in his book information that he learned confidentially in the course of the litigation, even with the consent of those involved.

Note that the Ethics Act says that the public official or public employee cannot disclose information “for a period consistent with the statute of limitations.” The statute of limitations for an ethics violation is four years from the date of the occurrence. However, the key is when the four years begin. The Alabama Ethics Commission, in its Advisory Opinion 2009-003 wrote:

The statute of limitations for a felony Ethics violation is four years from the date of occurrence. In applying the statute of limitations to Section 36-25-8, it would appear that the statute begins to run at the time the confidential information is disclosed in a way that it may provide a financial gain to the individual or another person.

Thus, if it is possible you or a family member could have some type of financial gain from information you learned confidentially, you cannot disclose that information for a minimum of four years, or possibly ever.

Returning to the “honor” student lawsuit, let’s assume you won (of course!). Suppose, after you won the lawsuit, that the Today Show wants to interview you live in their studio in New York City. If you are paid an appearance fee, you would have financial gain. On the other hand, if NBC instead only reimburses your expenses, you would not have financial gain. (While other portions of the Ethics Act talk about “a thing of value,” here the Ethics Act talks about “financial gain.”) If you are interviewed on the Today Show and are paid an appearance fee, you should not use confidential student information, even if you have later permission.

¹ 20 U.S. Code Section 1232g. This is commonly called the Buckley Amendment, after its principal sponsor, Senator

James Buckley of New York. Senator Buckley offered FERPA as an amendment on the Senate floor, so this law was not subject to senate committee consideration. ² We examined the difference in the definition of “family member” in CLAS School Leader Vol. 48, No. 2, Spring

Edition 2020 in the “Ethically Speaking” article “Why the difference between being a public employee and a public official is significant.” ³ Alabama Ethics Commission Advisory Opinion 2009-003. ⁴ Id., at page 7. ⁵ Id., at page 6. ⁶ Alabama Code Section 36-25-8, first sentence. ⁷ Any felony prosecution must be commenced within four years of the commission of the offense. Alabama Code

Section 36-25-27(h). For any misdemeanor prosecution, the statute of limitations is two years. Alabama Code

Section 36-25-27(i) ⁸ Alabama Ethics Commission Advisory Opinion, 2009-003, page 7. ⁹ Under FERPA, the statute of limitations does not run for a general education student until the general education student turns 21 in Alabama. Thus, while revealing confidential information after four years might not violate the

Alabama Ethics Act, you could still be subject to FERPA liability.