5T ATE OF ALABAMA

ETHICS COMMISSIONMAILING ADDRESS

P.O. BOX 4B40MONTGOMERY, AL

36103-4840

STREET ADDRESS

RSA UNION

100 NORTH UNION STREETSUITE 104

MONTGOMERY, AL 36104COMMISSIONERS

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

Helen Shores Lee, Esq.John H. Watson

Lewis G. Odom, Jr., Esq.

James L. Sumner, Jr.Director

Hugh R. Evans, IIIAssistant DirectorGeneral Counsel

TELEPHONE (334) 242-2997

FAX (334) 242-0248

August 5, 1998

ADVISORY OPINION NO. 98-41

The Honorable James D. MartinCommissionerDepartment of Conservation &

Natural Resources64 North Union StreetMontgomery, Alabama 36130

Conflict Of Interests/Individual Serving AsA Member Of The Conservation AdvisoryBoard When His Firm Is Employed UnderContract With The Department OfConservation And Natural Resources ToProvide Engineering Services To TheDepartment.

An engineering firm that is associated with amember of the Advisory Board ofConservation, may obtain new business withthe Department of Conservation & NaturalResources; provided, all work is obtainedthrough competitive bid; that thecommission member not vote, attempt toinfluence or otherwise participate in anybusiness dealings between his firm and theDepartment of Conservation & NaturalResources including, but not limited to, hisbeing involved in actually performing thework; that no confidential informationobtained in the course of his service as amember of the Advisory Board ofConservation is used in any manner that

James D. MartinAdvisory Opinion No. 98-41Page two

would provide a benefit to his firm; that themember of the Advisory Board ofConservation not use his position as acommission member to obtain furtherbusiness for his firm; and provided further,that a copy of each contract, regardless ofthe amount, shall be filed with theCommission within 10 days after thecontract has been entered into.

An engineering firm that does business withthe Department of Conservation & NaturalResources may continue to perform acontract after one of its members isappointed to the Advisory Board ofConservation; provided, the contract isperformed as originally written and thatthere are no change orders in the contract.

Dear Commissioner Martin:

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.

QUESTION PRESENTED

Mayan individual, whose firm is employed under contract with the Department ofConservation and Natural Resources to provide engineering services to the Department, serve asa member of the Conservation Advisory Board?

FACTS AND ANALYSIS

Raymond Jones has recently been appointed by the Governor to the ConservationAdvisory Board. The Advisory Board of Conservation has 13 members. The Governor,Commissioner of Agriculture & Industries and the Director of Agriculture Extension Services atAuburn University are members ex-officio. The Governor appoints the ten other members anddesignates one of them as chairman. Appointed members must have training in one or moreactivities of the Department and serve six-year staggered terms. Members are compensated forexpenses as provided by law.

James D. MartinAdvisory Opinion No. 98-41Page three

The Board serves in an advisory capacity and assists in formulating policies of thedepartment, examining rules promulgated by the Commissioner and assists in giving publicity tothe department's activities.

The State Parks Division is currently involved in a program to renovate parks throughoutthe State of Alabama. Engineering services are frequently required in accomplishing thisrenovation. Selection of engineering firms is not done on a competitive bid basis, but rather, theConservation Commissioner, James D. Martin, chooses firms based upon recommendations ofthe Department's Engineering Section and Parks Division.

Commissioner James D. Martin is questioning whether or not Mr. Jones can serve as aConservation Advisory Board member when his firm is employed under contract with thedepartment to provide engineering services to the department.

The chairman of the Advisory Board of Conservation is appointed by the Governor.There is no plan for Mr. Jones to be appointed as chairman; however, he could foreseeably beappointed chairman in the future should he continue to serve on the Advisory Board.

The Alabama Ethics Law, Code of Alabama, 1975, Section 36-25-9(c) states:

"No member of any county or municipal agency, board, or commission shall vote orparticipate in any matter in which the member or family member of the member has anyfinancial gain or interest."

Section 36-25-5(a) states:

"No public official or public employee shall use or cause to be used his or her officialposition or office to obtain personal gain for himself or herself, or family member of thepublic employee or family member of the public official, or any business with which theperson is associated unless the use and gain are otherwise specifically authorizedby law. Personal gain is achieved when the public official, public employee, or afamily member thereof receives, obtains, exerts control over, or otherwiseconverts to personal use the object constituting such personal gain."

Section 36-25-1(2) states:

"BUSINESS WITH WHICH THE PERSON IS ASSOCIATED. Any business of whichthe person or a member of his or her family is an officer, owner, partner, Board ofDirector member, employee, or holder of more than five percent of the fair market valueof the business."

James D. MartinAdvisory Opinion No. 98-41Page four

Section 36-25-1 (8) states:

"CONFLICT OF INTEREST. A conflict on the part of a public official or publicemployee 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 or public employee in the discharge of his or her official duties whichwould materially affect his or her financial interest or those of his or her family membersor any business with which the person is associated in a manner different from themanner it affects the other members of the class to which he or she belongs."

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

"(b) It is also essential to the proper operation of government that those best qualified beencouraged to serve in government. Accordingly, legal safeguards againstconflicts of interest shall be so designed as not to unnecessarily or unreasonablyimpede the service ofthose men and women who are elected or appointed to doso. An essential principle underlying the staffing of our governmental structure isthat 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 36-25-11 states:

"Unless exempt pursuant to Alabama competitive bid laws or otherwise permitted by law,no public official or public employee, or a member of the household of the publicemployee or the public official, and no business with which the person is associated shallenter into any contract to provide goods or services which is to be paid in whole or in partout of state, county or municipal funds unless the contract has been awardedthrough a process of competitive bidding and a copy of the contract is filed withthe commission. All such contract awards shall be made as a result of original bidtakings, and no awards from negotiations after bidding shall be allowed. A copyof each contract, regardless of the amount, entered into by a public official, publicemployee, a member of the household of the public employee or the publicofficial, and any business with which the person is associated shall be filed withthe commission within 10days after the contract has been entered into."

Section 36-25-2(3) states:

"No public office should be used for private gain other than the remuneration provided bylaw."

James D. MartinAdvisory Opinion No. 98-41Page five

Section 36-25-8 states:

"No public official, public employee, former public official or former public employee,for a period 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 in financial gain other than his or herregular salary as such public official or public employee for himself or herself, afamily member of the public employee or family member of the public official, orfor any other person or business."

On September 3, 1997, the Ethics Commission rendered Advisory Opinions Nos. 97-14(a) and 97-14(b) which held:

A097-14(a):

"An architectural firm that is associated with a member, who is not chairman ofthe Alabama Historical Commission, may obtain new business with the AlabamaHistorical Commission; provided, the commission member not vote, attempt toinfluence, or otherwise participate in any business dealings between his firm andthe Alabama Historical Commission, nor advise members of his firm on businessdealings with the commission; that no confidential information obtained in thecourse of his service as a member of the Alabama Historical Commission be usedin any manner that would provide a benefit to his firm; and further, that themember of the Alabama Historical Commission not use his position as acommission member to obtain further business for his firm."

A097-14(b):

"An architectural firm that is associated with a member of the Alabama HistoricalCommission may not obtain new business with the Alabama HistoricalCommission while the member serves as chairman of the Historical Commission,but may finish up old business contracts which were previously in existence priorto this member becoming chairman; and provided further, that he not vote,attempt to influence, or otherwise participate in the discussion of any mattersrelating to those business contracts with the architectural firm of which he isassociated."

The appropriate restrictions would be as follows:

1) That all work is obtained through competitive bid;

James D. MartinAdvisory Opinion No. 98-41Page six

2) That the commission member not vote, attempt to influence or otherwise participate inany business dealings between his firm and the Department of Conservation & Natural Resourcesincluding, but not limited to, his being involved in actually performing the work;

3) That no confidential information obtained in the course of his service as a member ofthe Advisory Board of Conservation is used in any manner that would provide a benefit to hisfirm;

4) That the member of the Advisory Board of Conservation not use his position as acommission member to obtain further business for his firm;

5) That a copy of each contract, regardless of the amount, shall be filed with theCommission within 10 days after the contract has been entered into; and,

6) That the contract is performed as originally written and that there are no change ordersin the contract.

CONCLUSION

An engineering firm that is associated with a member of the Advisory Board ofConservation, may obtain new business with the Department of Conservation & NaturalResources; provided, all work is obtained through competitive bid; that the commission membernot vote, attempt to influence or otherwise participate in any business dealings between his firmand the Department of Conservation & Natural Resources including, but not limited to, his beinginvolved in actually performing the work; that no confidential information obtained in the courseof his service as a member ofthe Advisory Board of Conservation is used in any manner thatwould provide a benefit to his firm; that the member of the Advisory Board of Conservation notuse his position as a commission member to obtain further business for his firm; and providedfurther, that a copy of each contract, regardless of the amount, shall be filed with the Commissionwithin 10 days after the contract has been entered into.

An engineering firm that does business with the Department of Conservation & NaturalResources may continue to perform a contract after one of its members is appointed to theAdvisory Board of Conservation; provided, the contract is performed as originally written andthat there are no change orders in the contract.

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James D. MartinAdvisory Opinion No. 98-41Page seven

AUTHORITY

By 5-0 vote of the Alabama Ethics Commission on August 5, 1998.

Hen~ChairAlabama Ethics Commission

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