Ala. Code § 45-51A-31.36

Current through the 2024 Regular Session.

Section 45-51A-31.36 - Public disclosure and accountability

(a) As used in this section, the following terms shall have the following meanings:

(1) AFFILIATE. An affiliate of another person shall include any of the following:

a. A person who directly or indirectly either:

1. Beneficially owns 15 percent or more of the outstanding voting securities or other voting ownership interests of the other person, whether through rights, options, convertible interests, or otherwise; or

2. Controls or holds power to vote 15 percent or more of the outstanding voting securities or other voting ownership interests of the other person.

b. A person owning 15 percent or more of the outstanding voting securities or other voting ownership interests of which are directly or indirectly either:

1. Beneficially owned by the other person, whether through rights, options, convertible interests, or otherwise; or

2. Controlled or held with power to vote by the other person.

c. A partnership or limited liability company in which the other person is a general partner, managing member, or manager, as the case may be.

d. An officer, director, employee, or agent of the other person, or an immediate family member of the officer, director, employee, or agent.

e. The term affiliate shall include, in addition to the persons listed above, any person, directly or indirectly, controlling, controlled by, or under common control with such person. As used in this definition, the term controls, including the terms controlling, controlled by, and under common control with means the following:

1. In connection with certified investors means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract other than commercial contract for goods or nonmanagement services, or otherwise, unless the power is the result of an official position with a corporation or a corporate office held by the person. Control is presumed to exist if any person, directly or indirectly, owns, controls, holds with the power to vote, or holds proxies representing 15 percent or more of the voting securities of any other person.

2. In connection with persons other than certified investors means the possession, directly or indirectly, of the power to direct the management or policies of a person, whether through the ownership of voting securities, by contract or otherwise. Each of a company's officers, directors, or partners exercising executive responsibility (or persons having similar status or functions) is presumed to control the company. A person is presumed to control a corporation if the person:

(1) directly or indirectly has the right to vote 15 percent or more of a class of the corporation's voting securities,

(2) has the power to sell or direct the sale of 15 percent or more of a class of the corporation's voting securities. A person is presumed to control a partnership if the person has the right to receive upon dissolution, or has contributed, 15 percent or more of the capital of the partnership. A person is presumed to control a limited liability company if the person:

(1) directly or indirectly has the right to vote 15 percent or more of a class of the interests of the limited liability company;

(2) has the right to receive upon dissolution, or has contributed, 15 percent or more of the capital of the limited liability company or

(3) is an elected manager of the limited liability company.

3. In addition to the above definitions, if a person owns or controls less than the threshold of voting securities involved, that person's relationship with the remaining members in control or management should be examined to determine if a control block exists, directly or indirectly.

4. In addition to the test based on status or voting control, an examination of the contractual, consulting, and other arrangements shall be undertaken to determine if control is being directly or indirectly exercised.

(2) COMPLETE CONTACT INFORMATION. The physical address, mailing ad-dress, telephone number, facsimile number, and email address of a person.

(3) ENTERPRISE WITH WHICH THE PERSON IS ASSOCIATED. Any enterprise of which the person or a member of his or her family is an officer, director, partner, managing member, or beneficial owner of more than 10 percent of the ownership interests of the enterprise.

(4) FAMILY MEMBER OF THE PUBLIC EMPLOYEE. The spouse, a dependent, an adult child and his or her spouse, a parent, a spouse's parents, and a sibling and his or her spouse of the public employee.

(5) FAMILY MEMBER OF THE PUBLIC OFFICIAL. The spouse, a dependent, an adult child and his or her spouse, a parent, a spouse's parents, and a sibling and his or her spouse of the public official.

(6) MANAGER. All of the persons that are, or will be, involved in the management of an applicant or a project, as the case may be.

(7) ORGANIZATIONAL DOCUMENTS. The documents pursuant to which an applicant was formed and its business will be conducted. For example, the organization documents for a limited liability company include the certificate of organization, the operating agreement, and any agreements between the persons having an ownership in the limited liability company.

(8) PERSON. A natural person or entity, including a corporation, general or limited partnership, trust, or limited liability company.

(9) PUBLIC EMPLOYEE. Any person employed, full or part time, at the state, county, or municipal levels of government or their instrumentalities in the State of Alabama, including governmental corporations and authorities. For purposes of this subpart, a person shall retain his or her status as a public employee for a period of two years after he or she leaves public employment.

(10) PUBLIC OFFICIAL. Any person elected to public office in the State of Alabama, whether or not that person has taken office, by the vote of the people at state, county, or municipal levels of government or their instrumentalities, including governmental corporations, and any person appointed to a position at the state, county, or municipal levels of government or their instrumentalities, including governmental corporations. For purposes of this subpart, a public official includes the chairs and vice chairs, or the equivalent offices, of each state political party as defined in Section 17-16-2. For purposes of this subpart, a person shall retain his or her status as a public official for a period of two years after he or she leaves public office.

(11) REASONABLE. Fair, proper, just, or suitable under the circumstances.

(12) VOTING SECURITIES OR OTHER VOTING INTERESTS. Securities or other interests, the holders of which are presently entitled to vote for the election of directors or the appointment or election of managers.

(b) Each applicant for any tax incentives or financial incentives from any local government must complete a disclosure statement as set forth in this subsection identifying all persons who may financially benefit from the applicant's participation as a designated project of the authority. Such statement must be submitted in the form set forth below to the authority and to each governmental entity granting any tax or financial incentives concurrent with the request or application for any such incentives. Form of statement:

"I-65 Corridor Applicant Disclosure Statement:

"APPLICANT:_________

"ADDRESS:___________

"CITY, STATE, ZIP:_______

"TELEPHONE NUMBER: ()________

(1)" Did the applicant or any person who would benefit financially from the applicant's inducement as a project hire a person to attempt to influence the enactment of the legislation that became known as the I-65 Corridor Development Authority?

"If yes, identify below the person(s) hired:______________

(2)" Has the applicant or any person who would benefit financially from the applicant's tax or financial incentives resulting to the project from participation with the authority hired a person to attempt to influence the authority's or any local government's consideration of the applicant's application for participation with the authority?

"If yes, identify below the person(s) hired:

(3)" List below the name(s) and address(es) of all public officials and public employees with whom any person who would benefit financially from the applicant's designation as a project has a family relationship or a business relationship. Identify the government, department, or agency for which the public officials/public employees work. (Attach additional sheets if necessary.)

"Name of Public Official/Employee__________

"Address__________________________

"Government, Department, or Agency________________

(4)" List below the name(s) and address(es) of all family members of public officials/public employees with whom any person who would benefit financially from the applicant's designation as a project has a family relationship and who may directly personally benefit financially from the proposed transaction. Identify the public officials/public employees and state department/agency for which the public officials/public employees work. (Attach additional sheets if necessary.)

"Name of Family Member__________________

"Address________________________

"Name of Public Official or Employee__________________

"Government, Department, or Agency Where Employed

"If you identified individuals in items (3) and/or (4) above, describe in detail below the financial benefit to be gained by the public officials, public employees, and/or their family members as the result of the applicant's designation as a project. (Attach additional sheets if necessary.)

"Describe in detail below any indirect financial benefits to be gained by any public official, public employee, and/or family members of the public official or public employee as the result of the applicant's designation as a project. (Attach additional sheets if necessary.)

"List below the name(s) and address(es) of all paid consultants utilized in connection with the applicant's application for designation as a project:

"Name of Paid Consultant_____________

"Address___________________

"By signing below, I certify that all statements on or attached to this form are true and correct to the best of my knowledge.

"Signature:_____________________

"Date:_____________________

"Notary's Signature______________

"Date:____________________

"Notary Expires:_____________

(c) In order to be induced as a project, an applicant for a project must file the following with the authority within 10 days before the authority acts to induce a possible project:

(1) A notarized and sworn affidavit from all of the managers of the applicant stating that each of the managers, or providing details and an explanation as to why such manager cannot state that he or she:

a. Is not, and will not become during tenure as manager of the applicant affiliated with an employee of the authority, any board member of the authority, or any public employee or public official.

b. Has not been convicted of and is not currently under indictment or prosecution for securities fraud or other criminal acts, other than minor traffic offenses. As used in this subsection, minor traffic offenses means all traffic offenses other than serious traffic offenses as set forth in Chapter 5A of Title 32, as amended.

c. Has not filed for bankruptcy within the past seven years.

d. Has not been ordered to pay and is not currently involved in legal action with the State of Alabama, any political subdivision thereof, any municipality or county within the State of Alabama, or any agency or department thereof for the payment of funds owed to any such entities.

(2) A listing of all persons that have an ownership interest in the applicant, including voting and nonvoting ownership interests. This listing must include the percentage ownership interest of each and a description of the ownership interest. Provided, however, that where the applicant is an entity that is registered with the U.S. Securities and Exchange Commission under Section 12(g) or Section 15(d) of the Securities Exchange Act of 1934, the applicant must include only those persons having beneficial ownership of equity securities of the applicant of more than five percent.

(3) In the event that the listing provided in response to subdivision (2) contains the name of a corporation, general or limited partnership, trust, limited liability company, or other entity that is not a natural person, a listing of all persons that have an ownership interest in such entity, including voting and nonvoting ownership interests.

(d)

(1) The authority shall not recognize applications or will not authorize or encourage the development of any project for any applicant if there has been an exchange of money or other consideration for purposes of attempting to gain from the authority or the local governments a favorable review of an application. Further, the authority shall not authorize or encourage the development of any project for any applicant if the applicant is directly following:

a. Public employee.

b. Public official.

c. Family member of the public employee.

d. Family member of the public official.

(2) Notwithstanding the foregoing, the authority, in its discretion, may authorize and encourage the development of a project for an applicant that would otherwise meet the requirements for certification but for the application of the immediately preceding sentence, if and only if (i) the disqualifying relationship is one of a public employee and not a public official and (ii) such relationship cannot reasonably be deemed to be potentially harmful to the economic interest of the local approving government.

Ala. Code § 45-51A-31.36 (1975)

Act 2009-764, p. 2319, § 17.