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STATE OF ALABAMA

ETHICS COMMISSION

COMMISSIONERS

Russell Jackson Drake, Esq., ChainnanJ. Harold Sorrells, Vice-Chainnan

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

Nancy Edwards Eldridge

MAILING ADDRESS

P.O. BOX4840MONTGOMERY,AL

36103-4840

STREET ADDRESS

RSA UNION100 NORTHUNIONSTREET

SUITE 104MONTGOMERY,AL 36104 James L. Sumner, Jr.

Director

TELEPHONE (334) 242-2997

FAX (334) 242-0248WEB SITE www.ethics.a\alinc.net

December 4, 2002

ADVISORY OPINION NO. 2002-50

Mr. Robert Gibbs LeeState Utilities EngineerAlabama Department of Transportation3230 Hernon RoadMontgomery, Alabama 36106-2632

Revolving Door/State Utilities EngineerWith The Alabama Department OfTransportation Accepting Employment WithPrivate Engineering Firm Whose Work HeHas Reviewed.

A State Utilities Engineer with the AlabamaDepartment of Transportation may not, for aperiod of two years after leaving theDepartment of Transportation or having lastreviewed a private engineering firm's work,accept employment with that privateengineering firm.

Dear Mr. Lee:

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.

Mr. Robert Gibbs Lee

Advisory Opinion No. 2002-50Page two

OUESTION PRESENTED

Maya State Utilities Engineer with the Alabama Department of Transportation acceptemployment with a private engineering firm whose work he has reviewed, but when he has hadno involvement in contract negotiations?

FACTS AND ANALYSIS

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

Robert G. Lee is a State Utilities Engineer with the Alabama Department ofTransportation (DOT). He has been so employed for the past six years. Mr. Lee is in charge of asection within the Design Bureau of DOT. His major duty is to review agreements and utilityrelocation plans for utilities that are in conflict with highway construction.

If a utility has facilities in the proposed right-of-way that are in conflict, the facilities arerequired to relocate. If the utility company does not have the staff to design relocation plans, itcan request to use a consulting engineering firm. Mr. Lee has the authority to approve ordisapprove that selection. He states that the approval is almost always based on whether the firmis licensed by the Board of Registration of Engineers and Land Surveyors. He states thatoccasionally, when a firm's past performance has been unsatisfactory, DOT will not approve thefirm. He states that this is extremely rare, and he has never made a recommendation to hire anyparticular firm.

Once approved, this firm works on a Utility Consultant Agreement. This is an agreementbetween the utility owner and the engineering firm. Mr. Lee's section reviews the agreement andmakes a recommendation for approval. The final approval is the responsibility of the OfficeEngineer and sometimes the Federal Highway Administration.

The engineering firm is also responsible for submitting an agreement between the utilityowner and DOT. Since the engineering firm works for the utility company, the utility pays theengineering firm, and for work that is reimbursable, DOT reimburses the utility company.

Mr. Lee has considered seeking employment with a private engineering firm. Hispreference is to find a position in highway design. Many of the engineering firms which engagein highway design, also perform utility relocation design work that has been reviewed by hisoffice.

Mr. Robert Gibbs LeeAdvisory Opinion No. 2002-50Page three

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 ofthe part-time employee's income."

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 36-25-13(c) states:

"(c) No public official, director, assistant director, department or division chief,purchasing or procurement agent having the authority to make purchases, or anyperson who participates in the negotiation or approval of contracts, grants, orawards or any person who negotiates or approves contracts, grants, or awards shallenter into, solicit, or negotiate a contract, grant, or award with the governmentalagency of which the person was a member or employee for a period of two yearsafter he or she leaves the membership or employment of such governmentalagency."

Section 36-25-13(d) states:

"(d) No public official or public employee who personally participates in thedirect regulation, audit, or investigation of a private business, corporation,partnership, or individual shall within two years of his or her departure from such

Mr. Robert Gibbs Lee

Advisory Opinion No. 2002-50Page four

employment solicit or accept employment with such private business, corporation,partnership, or individual."

The "Revolving Door" provisions of the Alabama Ethics Law prohibit a public official orpublic employee from accepting employment with a private business of which he or she haspersonally participated in the direct regulation, audit or investigation. Reviewing and approvingplans submitted by that business would fall within these categories.

In September of2001, the Commission rendered Advisory Opinion No. 2001-46, whichstated that:

"An Environmental Planning Specialist ill with ALDOT may not provideenvironmental consulting services to finns or other private entities with which hepersonally participated in the direct regulation, audit, or investigation of that entitywhile employed with ALDOT, for a period of two years after retiring, or for twoyears after having personally participated in the direct regulation, audit, orinvestigation of that private entity, whichever time period is longer."

Based on the facts as provided and the above law, a State Utilities Engineer with theAlabama Department of Transportation may not, for a period of two years after leaving theDepartment of Transportation or having last reviewed a private engineering finn's work, acceptemployment with that private engineering finn.

CONCLUSION

A State Utilities Engineer with the Alabama Department of Transportation may not, for aperiod of two years after leaving the Department of Transportation or having last reviewed aprivate engineering finn's work, accept employment with that private engineering finn.

AUTHORITY

By 5-0 vote ofthe Alabama Ethics Commission on December 4, 2002.