STATE OF ALABAMA

ETHICS COMMISSION' :...

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P.O. BOX4840MONTGOMERY.AL

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COMMISSIONERS

Lewis G. Odom, Jr., Esq.. ChairmanRussell Jackson Drake, Esq., Vice-ChairmanJ. Harold Sorrells

Raymond L. Bell, Jr., Esq.Linda L. Green

James L. Sumner, Jr.Director

TELEPHONE (334) 242-2997

FAX (334) 242-0248WEB SITE www.ethics.aIalinc.net

May 1, 2002

ADVISORY OPINION NO. 2002-20

Mr. Frank C. Ellis, Jr.Attorney at LawWallace, Ellis, Fowler & HeadPost Office Box 587Columbiana, Alabama 35051

Conflict Of InterestslUtility ServiceSupervisor With Shelby County Water AndSewer System Maintaining OutsideEmployment Constructing Water MainExtensions And Water Systems InDevelopments Under Contract WithDeveloper, When Those Systems Will BeInspected By And Accepted By ShelbyCounty For Maintenance.

The Utility Service Supervisor for theShelby County Water and Sewer Systemmay not maintain secondary employmentconstructing water main extensions andwater systems within subdivisions anddevelopments under contract with thedeveloper in instances where these systemsand extensions will eventually be inspectedby Shelby County and accepted into theShelby County grid system or inspected byShelby County pursuant to its ManagementContract, and eventually accepted into theWestover Water Authority System.

Mr. Frank C. Ellis, Jr.Advisory Opinion No. 2002-20Page two

The Utility Service Supervisor for theShelby County Water and Sewer Systemmay maintain secondary employmentconstructing water main extensions andwater systems in areas outside of ShelbyCounty or areas which do not fall under hisjurisdiction and authority with the ShelbyCounty Water and Sewer System or theWestover Water Authority System.

Dear Mr. Ellis:

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.

OUESTION PRESENTED

May the Utility Service Supervisor for the Shelby County Water and Sewer Systemmaintain secondary employment constructing water main extensions and water systems withinsubdivisions and developments under contract with the developer in instances where thesesystems and extensions will eventually be inspected by Shelby County and accepted into theShelby County grid system or inspected by Shelby County pursuant to its Management Contract,and eventually accepted into the Westover Water Authority System?

FACTS AND ANALYSIS

The facts as have been presented to this Commission are as follows:

Frank C. Ellis, Jr. is the County Attorney for Shelby County, Alabama. Shelby County isgoverned, in addition to general State law, by the Shelby County Civil Service Act, which is setforth in Act No. 93-664. The pertinent portion relating to conflicts of interests is attached to therequest for an opinion. Also enclosed with the request for an opinion, is a description for theUtility Service Supervisor.

Shelby County is a political subdivision of the State of Alabama and currently operates apublic water and sewer system within Shelby County. Shelby County has hired an employee intothe above described county position entitled "Utility Service Supervisor (Field Supervisor)." In

Mr. Frank C. Ellis, Jr.Advisory Opinion No. 2002-20Page three

this capacity, this employee for Shelby County participates in and supervises a field crew, whichconsists of approximately three (3) additional persons who are charged with the responsibility ofmaking new connections, installing, maintaining water mains and sewer mains to the ShelbyCounty Water and Sewer System. The Field Supervisor will, from time-to-time, be called uponto inspect or participate in inspections of previously installed water and sewer lines and forinspecting new lines which have been constructed in subdivisions and other developments andare awaiting acceptance by and connections to the Shelby County Water and Sewer System.These inspections are currently being performed primarily for Shelby County by a consultingengineering firm although this is, of course, subject to change from time-to-time at the directionof Shelby County. The Supervisor and these three (3) employees will have responsibility forresponding to defects and problems in these and other parts of the systems after they are acceptedby Shelby County, discovering the cause of problems, and responsibility therefor, and makingreports and repairs as they deem necessary.

The Utility Service Supervisor (Field Supervisor) was formerly employed by WestoverWater Authority, during which time he had secondary, "after-hours" employment where heinstalled water mains, extensions, and lines within new subdivisions and developments. It isanticipated that if this after-hours, secondary employment continues, these extensions and mains,once installed, will, in some instances, be either directly accepted into the Shelby County systemor into the system of the Westover Water Authority, which is managed by Shelby Countypursuant to a Management Contract.

Shelby County would like guidance as to whether or not this Utility Service Supervisormay continue his after-hours, secondary employment, now that he is an employee of ShelbyCounty.

The Alabama Ethics Law, Code of Alabama. 1975, Section 36-25-1(23) defines a publicemployee as:

"(23) PUBLIC EMPLOYEE. Any person employed at the state, county, ormunicipal level of government or their instrumentalities, including governmentalcorporations and authorities, but excluding employees of 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 municipalfunds. For purposes of this chapter, a public employee does not include a personemployed on a part-time basis whose employment is limited to providingprofessional services other than lobbying, the compensation for which constitutesless than 50 percent of the part-time employee's income."

Mr. Frank C. Ellis, Jr.Advisory Opinion No. 2002-20Page four

Section 36-25-2(b) in pertinent part states:

"(b) An essential principle underlying the staffing of our governmental structureis that its public officials and public employees should not be denied theopportunity, available to all other citizens, to acquire and retain private economicand other interests, except where conflicts with the responsibility of publicofficials and public employees to the public cannot be avoided."

Section 36-25-1(8) defines a conflict of interest as:

"(8) CONFLICT OF INTEREST. A conflict on the part of a public official orpublic employee between his or her private interests and the officialresponsibilities inherent in an office of public trust. A conflict of interest involvesany action, inaction, or decision by a public official or public employee inthe discharge of his or her official duties which would materially affect his or herfinancial interest or those of his or her family members or any business withwhich the person is associated in a manner different from the manner it affects theother members of the class to which he or she belongs."

Section 36-25-5(a) states:

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

Section 36-25-9(a) states:

"(a) Unless expressly provided otherwise by law, no person shall serve as amember or employee of a state, county, or municipal regulatory board orcommission or other body that regulates any business with which he is associated.Nothing herein shall prohibit real estate brokers, agents, developers, appraisers,mortgage bankers, or other persons in the real estate field, or other state-licensedprofessionals, from serving on any planning boards or commissions, housingauthorities, zoning board, board of adjustment, code enforcement board, industrialboard, utilities board, state board, or commission."

Mr. Frank C. Ellis, Jr.Advisory Opinion No. 2002-20Page five

The Ethics Law prohibits individuals who are employed in a regulatory capacity fromhaving outside employment or financial interests in a business or enterprise which they regulate.If they were allowed to do so, they would, in effect, be inspecting their own work.

Because of this prohibition and the conflict of interests it creates, the Utility ServiceSupervisor for the Shelby County Water and Sewer System may not maintain secondaryemployment in the industry or business that he is called upon to regulate as part of his official jobresponsibilities within the jurisdiction of the Shelby County Water and Sewer System or theWestover Water Authority. He would not, however, be prohibited from maintaining secondaryemployment in areas outside of his jurisdiction.

Based on the facts as provided and the above law, the Utility Service Supervisor for theShelby County Water and Sewer System may not maintain secondary employment constructingwater main extensions and water systems within subdivisions and developments under contractwith the developer in instances where these systems and extensions will eventually be inspectedby Shelby County and accepted into the Shelby County grid system or inspected by ShelbyCounty pursuant to its Management Contract, and eventually accepted into the Westover WaterAuthority System.

However, the Utility Service Supervisor for the Shelby County Water and Sewer Systemmay maintain secondary employment constructing water main extensions and water systems inareas outside of Shelby County or areas which do not fall under his jurisdiction and authoritywith the Shelby County Water and Sewer System or the Westover Water Authority System.

CONCLUSION

The Utility Service Supervisor for the Shelby County Water and Sewer System may notmaintain secondary employment constructing water main extensions and water systems withinsubdivisions and developments under contract with the developer in instances where thesesystems and extensions will eventually be inspected by Shelby County and accepted into theShelby County grid system or inspected by Shelby County pursuant to its Management Contract,and eventually accepted into the Westover Water Authority System.

The Utility Service Supervisor for the Shelby County Water and Sewer System maymaintain secondary employment constructing water main extensions and water systems in areasoutside of Shelby County or areas which do not fall under his jurisdiction and authority with theShelby County Water and Sewer System or the Westover Water Authority System.

Mr. Frank C. Ellis, Jr.Advisory Opinion No. 2002-20Page six

AUTHORITY

By 5-0 vote of the Alabama Ethics Commission on May 1,2002.

Lewis G. Odom, Jr., EsquireChairAlabama Ethics Commission