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STATE OF ALABAMA

ETHICS COMMISSION

Henry B. Gray III, ChainnanCamille S, Butrus, Vice-Chainnan

Helen Shores Lee, Esq.H. Dean Buttram, Jr., Esq.James T. Pursell

MAILING ADDRESS

P.O. BOX 4840MONTGOMERY, AL

36103-4840

STREET ADDRESS

RSA UNION100 NORTH UNION STREET

SUITE 104

MONTGOMERY, AL 36104 James L. Sumner, Jr.

Director

Hugh R. Evans, IIIAssistant DirectorGeneral Counsel

TELEPHONE (334) 242"2997

FAX (334) 242-0248

January 7, 1998

ADVISORY OPINION NO. 98-03

Kenneth 1. CushProfessional CivilEngineer IDepartment of Transportation1584A Stonehedge DriveAlexander City, Alabama35010

Conflict Of InterestslPublic EmployeeServing As Expert Witness.

A CivilEngineer I with the Department ofTransportation may not be paid to testify asan expert witness in a matter directly relatedto his primaryjob responsibilitiesand arisingin the course of the performance of his jobresponsibilities,nor may he be paid to testifyas an expert witness when the State ofAlabama or a Department of the State ofAlabama is a party to the litigation.

A CivilEngineer I may be paid to serve as anexpert witness on matters that are notdirectly related to his primaryjobresponsibilitiesand did not arise in thecourse of the performance of his jobresponsibilitiesand where the State ofAlabama or a State Department is not a partyto the litigationwhen such testimony is givenon his own time, whether it be after hours oron annual leave; and provided,

Kenneth 1. CushAdvisory OpinionNo. 98-03Page two

there is no use of state equipment, facilities,time, materials, human labor, or other publicproperty under his discretion or control tobenefit him in his service as an expertwitness.

Dear Mr. Cush:

The AlabamaEthics Commissionis in receipt of your request for an AdvisoryOpinion ofthis Commission, and this opinion is issued pursuant to that request.

OUESTION PRESENTED

May Kenneth 1. Cush, Professional CivilEngineer I with the Alabama Department ofTransportation, provide expert witness consulting services to private law firms in the area oftraffic engineeringdesign and operation?

FACTS AND ANALYSIS

Kenneth 1. Cush is a Professional CivilEngineer I with the AlabamaDepartment ofTransportation. He is interested in providing expert witness consulting services to private lawfinns in the area of traffic engineering design and operation.

Mr. Cush recognizes that he may not use his position as a CivilEngineer I to obtain theoutside employment, and that all work concerning the outside employment is to be done on hisown time, whether it be after hours or while on leave; and further, that he not use any publicequipment, etc., under his discretion or control to assist him in performing his outsideemployment as an expert witness; and also that, the consulting work may not be a part of hisnormal job responsibilitieswith the Department of Transportation.

The AlabamaEthics Law, Code of Alabam~ 1975, Section 36-25-1(23) states:

"(23) PUBLIC EMPLOYEE. Any person employed at the state, county, ormunicipal level of government or their instrumentalities,including governmentalcorporations and authorities, but excluding employeesof hospitals or other healthcare corporations including contract employees of those hospitals or other healthcare corporations, who is paid in whole or in part from state, county or municipal

Kenneth 1. CushAdvisory OpinionNo. 98-03Page three

funds. For purposes of this chapter, a public employee does not include a personemployed on a part-time basis whose employment is limitedto providingprofessional services other than lobbying,the compensation for which constitutesless than 50 percent of the part-time employee's income."

Section 36-25-1(8) states:

"(8) CONFLICT OF INTEREST. A conflict on the part of a public officialorpublic employeebetween his or her private interests and the officialresponsibilitiesinherent in an office of public trust. A conflict of interest involvesany action, inaction, or decisionby a public officialor public employee in thedischarge of his or her officialduties which would materially affect his or herfinancial interest or those of his or her familymembers or any business with whichthe person is associated in a manner different ftom the manner it affects the othermembers of the class to which he or she belongs."

Section 36-25-5(a) states:

"(a) No public officialor public employee shalluse or cause to be used his or herofficial position or office to obtain personal gain for himselfor herself, or familymember of the public employee or familymember of the public official,or anybusiness with which the person is associated unless the use and gain areotherwise specificallyauthorized by law. Personal gain is achieved when thepublic official,public employee, or a familymember thereof receives, obtains,exerts control over, or otherwise converts to personal use the object constitutingsuch personal gain."

Section 36-25-5(c) states:

"(c) No public officialor public employee shalluse 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 public official,public employee, any other person, or principal campaign committee as defined inSection 17-22A-2, which would materiallyaffect his or her financial interest,except as otherwise provided by law or as provided pursuant to a lawfulemployment agreement regulated by agency policy."

Kenneth 1. CushAdvisory OpinionNo. 98-03Page four

Section 36-25-2(b) states:

"An essential principleunderlyingthe staffing of our governmental structure is thatits public officialsand public employees should not be denied the opportunity,available to all other citizens, to acquire and retain private economic and otherinterests, except where conflictswith the responsibilityof public officialsandpublic employees to the public cannot be avoided."

There are certain individualswho, by the very nature of their training and expertise, areperfectly suited to serve as an expert witness in various types of civil litigation, and the mere factthat an individualworks for the State of Alabama does not necessarilyprohibit him from doing so;provided, certain guidelines are followed. Those guidelines are as follows:

1. That he not be paid to testifYas an expert witness in a matter relating to issues concerninghis direct job responsibilitiesand where the matter he is called to testifYabout arose in the courseof the performance of his job responsibilities;

2. That he not be paid to testifYas an expert witness when the State of Alabamaor aDepartment of the State of Alabama is a party to the litigation;

3. That he may be paid to testifYas an expert witness when such testimony is given on hisown time, whether it be after hours or on annual leave; and,

4. That there is no use of state equipment, facilities,time, materials, human labor, or otherpublic property under his discretion or control to benefit him in the service as an expert witness.

CONCLUSION

A CivilEngineer I with the Department of Transportation may not be paid to testifYas anexpert witness in a matter directly related to his primaryjob responsibilitiesand arising in thecourse of the performance of his job responsibilities,nor may he be paid to testifYas an expertwitness when the State of Alabama or a Department of the State of Alabamais a party to thelitigation.

A CivilEngineer I may be paid to serve as an expert witness on matters that are notdirectly related to his primaryjob responsibilitiesand did not arise in the course of theperformance of hisjob responsibilitiesand where the State of Alabama or a State Department isnot a party to the litigation when such testimony is given on his own time, whether it beafter

Kenneth 1. CushAdvisory Opinion No. 98-03Page five

hours or on annual leave; and provided, there is no use of state equipment, facilities,time,materials, human labor, or other public property under his discretion or control to benefit him inhis service as an expert witness.

AUTHORITY

By 4-0 vote of the AlabamaEthics Commissionon January 7, 1998.

HeChairAlabama Ethics Commission