G) STATE OF ALABAMA ETHICS COMMISSION MAILING ADDRESS P.O. BOX 4840 MONTGOMERY. AL 36103-4840 STREET ADDRESS RSA UNION 100 NORTH UNION STREET SUITE 104 MONTGOMERY. AL 36104 H. Dean Buuram, Jr., Esq, Chairman James T. Pursell, Vice-Chainnan Henry B. Gray III Camille S. Butrus Helen Shores Lee, Esq. E. J. (Mac) McArthur Director March 6, 1996 TELEPHONE (334) 242-2997 FAX (334) 242-0248 ADVISORY OPINION NO. 96-31 Mr. Donald H. Gunter Pollution Control Specialist Department of Environmental Management 5025 Redland Road Wetumpka, Alabama 36092 Offering Member Of Regulatory Body Thing Of Value/ ADEM Employee Performing Asbestos Sample Analysis For Private Environmental Consulting Firm. Member Of Regulatory Body Soliciting Or Accepting Thing Of Value/ ADEM Employee Accepting Employment Doing Asbestos Sample Analysis For Private Environmental Consulting Firm. A private environmental consulting firm may not offer outside employment to an Environmental Scientist with the Alabama Department of Environmental Management to perform analysis of asbestos samples when the client on whose behalf the sample analysis is performed, is regulated by ADEM. An Environmental Scientist with the
Transcript
G)STATE OF ALABAMA
ETHICS COMMISSIONMAILING ADDRESS
P.O. BOX 4840
MONTGOMERY. AL36103-4840
STREET ADDRESS
RSA UNION100 NORTH UNION STREET
SUITE 104MONTGOMERY. AL 36104H. Dean Buuram, Jr., Esq, Chairman
James T. Pursell, Vice-Chainnan
Henry B. Gray IIICamille S. Butrus
Helen Shores Lee, Esq.
E. J. (Mac) McArthurDirector
March 6, 1996TELEPHONE (334) 242-2997
FAX (334) 242-0248
ADVISORY OPINION NO. 96-31
Mr. Donald H. GunterPollution Control SpecialistDepartment of Environmental Management5025 Redland RoadWetumpka, Alabama 36092
Offering Member Of RegulatoryBody Thing Of Value/ ADEMEmployee Performing AsbestosSample Analysis For PrivateEnvironmental Consulting Firm.
Member Of Regulatory BodySoliciting Or Accepting Thing OfValue/ ADEM Employee AcceptingEmployment Doing AsbestosSample Analysis For PrivateEnvironmental Consulting Firm.
A private environmental consultingfirm may not offer outsideemployment to an EnvironmentalScientist with the AlabamaDepartment of EnvironmentalManagement to perform analysis ofasbestos samples when the client onwhose behalf the sample analysis isperformed, is regulated by ADEM.
An Environmental Scientist with the
Mr. Donald H. GunterAdvisory Opinion No. 96-31Page two
Department of EnvironmentalManagement may not accept outsideemployment to perform analysis ofasbestos samples for a privateenvironmental consulting firm whenthe client on whose behalf the
sample analysis is performed, isregulated by ADEM.
A private environmental consultingfirm may offer an EnvironmentalScientist for the AlabamaDepartment of EnvironmentalManagement, and this publicemployee may accept outsideemployment to perform analysis ofasbestos samples when the client onwhose behalf, the sample analysis isperformed, is not regulated byADEM.
Dear Mr. Gunter:
The Alabama Ethics Commission is in receipt of your request for an Advisory Opinion ofthis Commission, and this opinion is issued pursuant to that request.
OUESTIONSPRESENTED
1. Maya former employer of an ADEM employee contact that employee and request thathe perform an analysis of asbestos bulk samples for a commission, on a per sample basis?
2. If the State employee accepts this work, is this a violation of the State's Ethics Law?
FACTS AND ANALYSIS
An Environmental Scientist with the Air Division of the Alabama Department ofEnvironmental Management monitors and evaluates air emission tests which are routinely
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perfonned by regulated facilities to ensure that the requirements of their pennits are met.
He has been offered outside employment doing analysis of asbestos bulk samples for aprivate environmental consulting finn. As an employee of the technical branch of the AirDivision at ADEM, he does not have any responsibility dealing with the regulation of asbestosanalysis, abatement, or transportation of asbestos. To his knowledge only the asbestos abatementcontractors are regulated by ADEM.
From the facts as presented, it would appear that some clients of the privateenvironmental consulting finn are regulated by ADEM.
The Alabama Ethics Law, Code of Alabama, 1975, Section 36-25-1(24) states:
"(24)PUBLIC EMPLOYEE. Any person employed at the state, county, or municipallevel of government or their instrumentalities, including governmental corporations andauthorities, but excluding employees of hospitals or other health care corporationsincluding contract employees of those hospitals or other health care corporations, who ispaid in whole or inpart from state, county or municipalfunds. For purposes of thischapter, a public employee does not include a person employed on a part-time basiswhose employment is limited toproviding professional services other than lobbying, thecompensationfor which constitutes less than 50percent of thepart-time employee'sincome. "
Section 36-25-1 (26) states:
"(26)REGULATORY BODY. A state agency which issues regulations in accordancewith the Alabama Administrative Procedure Act or a state, county, or municipaldepartment, agency, board, or commission which controls, according to rule orregulation, the activities, business licensure, orfunctions of any group, person, orpersons. "
Section 36-25-2(a)(3) states:
"(a) The Legislature hereby finds and declares:
(3) No public office should be usedfor private gain other than the remuneration providedby law."
Section 36-25-2(b) states:
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"(b)It is also essential to theproper operation of government that those best qualified beencouraged to serve in government. Accordingly, legal safeguards against conflicts ofinterest shall be so designed as not to unnecessarily or unreasonably impede the serviceof those men and women who are elected or appointed to do so. An essential principleunderlying the staffing of our governmental structure is that itspublic officials and publicemployees should not be denied the opportunity, available to all other citizens, to acquireand retain private economic and other interests, except where conflicts with theresponsibility ofpublic officials andpublic employees to thepublic cannot be avoided. "
Section 36-25-8 states:
"Nopublic official,public employee,former public official orformer public employee,for aperiod consistent with the statute of limitations as contained in this chapter, shalluse or disclose confidential information gained in the course of or by reason of his or herposition or employment in any way that could result infinancial gain other than his orher regular salary as such public official or public employeefor himself or herself, afamily member of thepublic employee orfamily member of thepublic official, orfor anyother person or business. "
Section 36-25-12 states:
"Noperson shall offer or give to a member or employee of a governmental agency,board, or commission that regulates a business with which theperson is associated, andno member or employee of a regulatory body, shall solicit or accept a thing of valuewhile the member or employee is associated with the regulatory body other than in theordinary course of business. "
Section 36-25-1(32)(a) states:
"a. Any gift, benefit, favor, service, gratuity, tickets or passes to an entertainment, socialor sporting event offered only to public officials, unsecured loan, other than those loansmade in the ordinary course of business, reward, promise of future employment, orhonoraria. "
There is an inherent conflict of interest when an employee of a regulatory agency hasoutside employment with a business whose clients may be regulated by ADEM.
The Ethics Law specifically prohibits a person from offering or giving to a member oremployee of a governmental agency, board, or commission that regulates a business with whichthey are associated, a thing of value, and further prohibits a member or employee of that
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regulatory body trom soliciting or accepting a thing of value while the member or employee isassociated with the regulatory body other than in the ordinary course of business.
Likewise, the term "thing of value" includes employment.
While all public employees should have the same opportunities for secondaryemployment as private sector employees, there is a serious potential for a conflict of interestwhen that secondary employment is in the field that is regulated by the public employee's publicsector or primary employer.
There is great room for not only misuse of confidential information, but for an unknown
benefit being bestowed upon the secondary employer through its inside contact with ADEM, i.e.,its employment of the environmental scientist.
Based on the facts as presented and the applicable law, a former employer of an ADEMemployee may not offer outside employment to the ADEM employee to do asbestos sampleanalysis if the client on whose behalf the analysis is being done is regulated by ADEM.
However, should clients of the private environmental consulting firm not be regulated byADEM, the employment would be proper.
The ADEM employee should take great caution to determine whether or not the client onwhose behalf the analysis is being performed, is or is not regulated by ADEM.
CONCLUSION
A private environmental consulting firm may not offer outside employment to anEnvironmental Scientist with the Alabama Department of Environmental Management toperform analysis of asbestos samples when the client on whose behalf the sample analysis isperformed, is regulated by ADEM.
An Environmental Scientist with the Department of Environmental Management may notaccept outside employment to perform analysis of asbestos samples for a private environmentalconsulting firm when the client on whose behalf the sample analysis is performed, is regulated byADEM.
A private environmental consulting firm may offer to an Environmental Scientist for theAlabama Department of Environmental Management, and this public employee may accept
Mr. Donald H. Gunter
Advisory Opinion No. 96-31Page six
outside employment to perform analysis of asbestos samples when the client on whose behalf,the sample analysis is performed, is not regulated by ADEM.
AUTHORITY
By 3 - 1 vote of the Alabama Ethics Commission on March 6, 1996.
