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

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

October 2, 2002

ADVISORY OPINION NO. 2002-45

Ms. Merceria L. LudgoodAssistant County AttorneyOffice of Mobile County Attorney205 Government StreetMobile, Alabama 36644-100I

Conflict Of Interests/Construction CompanyAssociated With Director Of Inspection AndFlood Plains Administrator For MobileCounty Doing Business In UnincorporatedAreas Of Mobile County.

A construction company associated with theDirector of Inspection and Flood PlainsAdministrator for Mobile County may notconduct business in unincorporated areas ofMobile County, when all work done by thatconstruction company would be inspectedand approved by inspectors under theDirector's supervision.

Dear Ms. Ludgood:

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

Maya construction company, which is partially owned by the Director of Inspection andFlood Plains Administrator for Mobile County, do business in unincorporated areas of MobileCounty?

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Ms. Merceria L. LudgoodAdvisory Opinion No. 2002-45Page two

FACTS AND ANALYSIS

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

Thad Montgomery is the Director of Inspection and Flood Plains Administrator forMobile County. As Director of Inspections, Mr. Montgomery supervises all inspectors, whetherelectrical, building or air conditioning. He does not personally perform inspections. His office ischarged with enforcement of the Southern Building Codes and the National Flood InsuranceProgram in all unincorporated areas of Mobile County. All permits are issued by the Office ofBuilding Inspection.

T.E. Montgomery Construction Company is incorporated. Mr. Montgomery and his wife,Mary, constitute the Board of Directors. Their son, Robbie Montgomery, assumed managementof the company on June 14, 1997,when his father assumed his position with Mobile County.During the intervening five years, the company has performed no work in the unincorporatedareas of Mobile County because Thad Montgomery's employees would be required to performinspections on projects performed by his company. Thad Montgomery receives income from thecompany but does not participate in its day-to-day operations. The income is in the nature ofretirement, although the company does not have a formal retirement program.

Under the factual situation described above, the question is asked as to whether or notT.E. Montgomery Construction Company, Inc. is prohibited from undertaking construction jobsin the unincorporated areas of Mobile County.

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."

Section 36-25-1(2) defines a business with which the person is associated as:

"(2) BUSINESS WITH WHICH THE PERSON IS ASSOCIATED. Any business ofwhich the person or a member of his or her family is an officer, owner, partner,

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Ms. Merceria L. LudgoodAdvisory Opinion No. 2002-45Page three

board of director member, employee, or holder of more than five percent of thefair market value of the business."

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."

The Commission has addressed this issue on several occasions in the past.

On May 1,2002, the Commission rendered Advisory Opinion No. 2002-20, which heldthat:

"The Utility Service Supervisor for the Shelby County Water and Sewer Systemmay not maintain secondary employment constructing water main extensions andwater systems within subdivisions and developments under contract with thedeveloper in instances where these systems and extensions will eventually beinspected by Shelby County and accepted into the Shelby County grid system orinspected by Shelby County pursuant to its Management Contract, and eventuallyaccepted into the Westover Water Authority System."

"The Utility Service Supervisor for the Shelby County Water and Sewer Systemmay maintain secondary employment constructing water main extensions andwater systems in areas outside of Shelby County or areas which do not fall under

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Ms. Merceria L. LudgoodAdvisory Opinion No. 2002-45Page four

his jurisdiction and authority with the Shelby County Water and Sewer System orthe Westover Water Authority System."

On March 1,2000, the Commission rendered Advisory Opinion No. 2000-15, which heldthat:

"A County Engineer employed by the Clebume County Commission may act as aconsultant on engineering projects outside of Clebume County that are beyond hisjurisdiction as Clebume County Engineer . . ."

Likewise, on August 5, 1998, the Commission rendered Advisory Opinion No. 98-42,which held that:

"A forester with the Wildlife Section of the Game and Fish Division of theDepartment of Conservation and Natural Resources may provide forestry serviceson his own time on properties outside the jurisdiction of the Department ofConservation and Natural Resources. . ."

On January 10, 1996, the Commission rendered Advisory Opinion No. 96-10, which heldthat:

"A Compliance Officer II with the Plumbers and Gas Fitters Examining Boardmay not operate a plumbing business while employed with the Plumbers and GasFitters Examining Board."

The Commission went further to state that:

"There is an inherent conflict of interest for a public employee, charged withenforcing rules and regulations, to also operate a business in the industry that he isregulating. In other words, the regulated being the regulator."

In the facts before the Commission, T.E. Montgomery Construction Company is abusiness with which Thad Montgomery is associated. He is a member of the Board of Directorsand derives income ITomthe business. At the same time, Mr. Montgomery is charged withoverseeing all inspections on all projects done in unincorporated Mobile County.

Based on the facts as provided and the above law, a construction company associatedwith the Director of Inspection and Flood Plains Administrator for Mobile County may notconduct business in unincorporated areas of Mobile County, when all work done by thatconstruction company would be inspected and approved by inspectors under the Director'ssupervIsIon.

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Ms. Merceria L. LudgoodAdvisory Opinion No. 2002-45Page five

CONCLUSION

A construction company associated with the Director of Inspection and Flood PlainsAdministrator for Mobile County may not conduct business in unincorporated areas of MobileCounty, when allwork done by that construction company would be inspected and approved byinspectors under the Director's supervision.

AUTHORITY

By 4-0-1 vote of the AlabamaEthics Commission on October 2,2002.

sChairAlabamaEthics Commission