(I)5T ATE OF ALABAMA

ETHICS COMMISSION

James T. Pursell, ChairmanHenry B. Gray III, Vice-ChairmanCamille S. Butrus

Helen Shores Lee, Esq.H. Dean Buttram, Jr., Esq.

MAILING ADDRESS

P.O. BOX4840MONTGOMERY,AL

36103-4840

STREET ADDRESS

RSA UNION100 NORTHUNIONSTREET

SUITE 104MONTGOMERY,AL 36104 E. J. (Mac) McArthur

Director

October 9, 1996 TELEPHONE (334) 242-2997

FAX (334) 242-0248

ADVISORY OPINION NO. 96-99

James R. Hyland209 Colgate DriveMontgomery, Alabama 36109

Conflict Of Interests/State ForestEntomologist Obtaining OutsideEmployment With Private Forester.

A Forest Entomologist employed in astaff role by the State of Alabamamay accept outside employment witha private forester; provided, there isno use of public property, time,labor, equipment, materials, that theForest Entomologist did not use hisposition to obtain the employment,and if the secondary employmentdoes not conflict with the publicemployment.

Further, a Forest Entomologist withthe State of Alabama may not seek oraccept outside employment with aprivate forester that he regulates or inan area he regulates.

Dear Mr. Hyland:

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.

James R. HylandAdvisory Opinion No. 96-99Page two

QUESTION PRESENTED

Maya Forest Entomologist with the State of Alabama, who serves in a staff role, seekoutside employment with a private forester as a sub-contractor?

FACTS AND ANALYSIS

James R. Hyland is a State Entomologist with the State of Alabama. He presently hastwo children in college and is desirous of earning additional income beyond his State salary.

His position with the State is a Forest Entomologist. He serves in a staff role with littlecontact with individual forest landowners except through an extension type role (writingbrochures, giving training sessions, etc.). His area of specialization is forest pest control ratherthan forest management.

He is interested in seeking outside employment working under the supervision of aprivate forester doing tasks such as timber marking, boundary line marking, timber volumeestimation, timber sale layout, etc. He will have no contact with the forest landowner, but willwork at the direction of a forester. He will be paid as a sub-contractor rather than a salariedemployee of the forester. This pay will be on commission, hourly, or on a per-acre basis. Allcorrespondence, forest management plan, etc. to the landowner will not include his name, butwill include the name of the forester with whom he sub-contracts.

The Alabama Ethics Law, Code of Alabama, 1975, Section 36-25-1(8) states:

"(8) CONFLICT OF INTEREST A conflict on thepart of a public official orpublicemployee between his or her private interests and the official responsibilities inherent inan office of public trust. A conflict of interest involves any action, inaction, or decisionby a public official orpublic employee in the discharge of his or her official duties whichwould materially affect his or herfinancial interest or those of his or her family membersor any business with which theperson is associated in a manner differentfrom themanner it affects the other members of the class to which he or she belongs.

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 is

James R. HylandAdvisory Opinion No. 96-99Page three

paid 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 36-25-2(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:

"(b)It is also essential to the proper 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 essentialprincipleunderlying 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 retainprivate economic and other interests, except where conflicts with theresponsibility ofpublic officials and public employees to the public cannot be avoided. "

Section 36-25-5(a) states:

"(a)No public official orpublic employee shall use or cause to be used his or her officialposition or office to obtainpersonal gainfor himself or herself, orfamily member of thepublic employee orfamily member of thepublic official, or any business with which theperson is associated unless the use and gain are otherwise specifically authorized by law.Personal gain is achieved when thepublic official,public employee, or afamily memberthereof receives, obtains, exerts control over, or otherwise converts to personal use theobject constituting such personal gain. "

Section 36-25-5( c) states:

"(c) No public official or public employee shall use or cause to be used equipment,facilities, time, materials, human labor, or other public property under his or herdiscretion or control for the private benefit or business benefit of the publicofficial, public employee, any other person, or principal campaign committee as defined

James R. HylandAdvisoryOpinionNo. 96-99Page four

in Section 17-22A-2, which would materially affect his or herfinancial interest, except asotherwise provided by law or asprovided pursuant to a lawful employment agreementregulated by agency policy. "

Section 36-25-5( e) states:

"(e)No public official or public employee shall, other than in the ordinary course ofbusiness, solicit a thing of valuefrom a subordinate orperson or business with whom heor she directly inspects, regulates, or supervises in his or her official capacity. "

The Ethics Commission has repeatedly ruled that public employees should not be deniedthe opportunity to accept outside employment; however, the conditions under which that publicemployee may accept outside employment are strictly limited.

A public employee may accept outside employment; provided:

(l). That all activities associated with the outside employment be conducted on his or herown time,

(2). That no public equipment, facilities, time, materials, human labor, or other publicproperty under his or her discretion or control be used for the private benefit of the publicemployee,

(3). That the outside employment opportunity did not arise because of his or her positionas a public employee,

(4). That his or her outside employment not conflict with his or her public employment,and

(5). That the outside employment not be in an area that the public employee regulates.

Based on the facts as provided and the above law, a Forest Entomologist with the State ofAlabama may accept outside employment with a private forester; provided, the above conditionsare met.

CONCLUSION

A Forest Entomologist employed in a staff role by the State of Alabama may accept

James R. HylandAdvisory Opinion No. 96-99Page five

outside employment with a private forester; provided, there is no use of public property, time,labor, equipment, materials, that the Forest Entomologist did not use his position to obtain theemployment, and if the secondary employment does not conflict with the public employment.

Further, a Forest Entomologist with the State of Alabama may not seek or accept outsideemployment with a private forester that he regulates or in an area he regulates.

AUTHORITY

By 4 - 0 vote of the Alabama Ethics Commission on October 9, 1996.

aIrAlabama Ethics Commission