STATE OF ALABAMA

ETHICS COMMISSIONMAILING ADDRESS

P.O. BOX 4840MONTGOMERY.AL

36103-4840

STREET ADDRESS

RSA UNION100 NORTHUNIONSTREET

SUITE 104MONTGOMERY.AL 36104James T. Pursell, Chainnan

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

Helen Shores Lee, Esq.H. Dean Buttram, Jr.. Esq.

James L. Sumner, Jr.Director

June 11, 1997TELEPHONE (334) 242-2997

FAX (334) 242-0248

ADVISORYOPINION NO. 97-25

Lindsay MothershedEnvironmental Scientist illDepartment of Environmental Management83037 Tallassee Hwy.Eclectic, Alabama 36024

Conflict Of InterestslEnvironmentalScientist ill With The Alabama DepartmentOf Environmental Management ContractingWith Alabama Consulting Firm To DoBusiness In Another State.

An Environmental Scientist ill with theAlabama Department of EnvironmentalManagement may enter into secondaryemployment with an Alabama consultingfirm to do consulting work in another state;provided, all consulting work is done on hisown time whether it is after hours or onannual leave; that no State of Alabamaequipment, facilities, time, materials, humanlabor, or other public property under hisdiscretion or control is used in a manner toaffect his consulting work outside the Stateof Alabama; that the consulting work doneoutside the State of Alabama is not related toany work or business he regulates in thecourse of his employment with ADEM; andfurther, that the Environmental Scientist,when performing consulting businessoutside the State of Alabama for aconsulting firm located in Alabama, not useany confidential information obtained in thecourse of his employment to benefit theconsulting firm located in Alabama or anyother regulated business.

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Lindsay MothershedAdvisory Opinion No. 97-25Page two

Should the consulting fmn employing theEnvironmental Scientist ill with ADEM

engage in any business within the State ofAlabama, the Environmental Scientist IIIwith ADEM may not do consulting work forthe fmn in the seventeen counties that heregulates in his official capacity withADEM, when the consulting firm is doingbusiness with a fmn that is regulated byADEM. Nor may he engage in regulatingthe regulated entity employing theconsulting fmn.

Dear Mr. Mothershed:

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

Mayan Environmental Scientist ill with the Alabama Department of EnvironmentalManagement do consulting environmental work for a consulting firm located in the State ofAlabama, when the work is going to be performed in another state?

FACTS AND ANALYSIS

Lindsay Mothershed is currently employed with the Department of EnvironmentalManagement and works in the Montgomery Office. His duties involve the management of bothmedical and solid wastes. As an Environmental Scientist III, he supervises two field inspectorswho are responsible for solid waste matters in 17 counties. In May, 1997,he will have 20 yearsof service credit with the Retirement System.

Recently, a consulting fmn located in Alabama made an inquiry concerning thepossibility of his doing some environmental work in another state. While he recognizes aconflict of interests would exist ifhe were to do any work for this consulting firm involving afacility located in Alabama, his inquiry is based on performing services outside the State ofAlabama.

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Lindsay MothershedAdvisory Opinion No. 97-25Page three

Mr. Mothershed works in the Solid Waste Branch of the Land Division as anEnvironmental Scientist III. This is an entry level supervisory position and he has twosupervisors in this branch (Section Chief and Branch Chief) which have review authority of allhis work. The Solid Waste Branch is a sub-group of the Land Division and it is the Chief of theLand Division that signs any pennits which are issued by the Solid Waste Branch.

In the field of Solid Waste, Mr. Mothershed supervises two employees, who performperiodic inspections at pennitted disposal facilities to determine compliance with Division 335,Branch 13 of the ADEM Administrative Code. These two employees work in designatedterritories and collectively do work in seventeen counties. They are also responsible forinvestigating the unauthorized disposal of solid waste (dumps). Issues dealing with thecollection, transportation, and storage of solid waste are regulated by the Department of PublicHealth.

In the field of Medical Waste, Mr. Mothershed is currently responsible for draftingpermits for the transportation and treatment of medical waste and the development of newregulations. Any draft permits he prepares are subject to review and, if issued, the DivisionChief signs them. Mr. Mothershed also investigates complaints regarding the mis-managementof medical waste. There are other agencies, most notably, OSHA, who have regulationsregarding certain aspects of the medical community for which he has no authority for regulatoryinvolvement.

Recently, he discussed various types of work that the consultant may want him toperform. Since this is a new company that is trying to get established in Alabama, Mr.Mothershed states that it would be impossible to list all such activity. Currently, the company isprimarily working out of State. Most of their work now consists of water and air related issues.ADEM does not regulate consultants, only companies and persons who are subject to theDepartment's regulations.

Mr. Mothershed further states that due to the degree of his work being subject to review,and the limited amount ofpennitting activity he performs, he would like to know if he couldwork in areas and for companies and organizations for which he does not have any directinvolvement in Alabama as well as in other states.

He states in his request that the work would be done on time when he would not beworking for the State of Alabama, and it would not involve the use of any equipment or vehiclesbelonging to the State.

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Lindsay MothershedAdvisory Opinion No. 97-25Page four

The Alabama Ethics Law, Code of Alabama, 1975, Section 36-25-5(a) states:

"ea)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.n

Section 36-25-5(c) states:

n(c) No public official or public employee shall use or cause to be usedequipment, facilities, time, materials, human labor, or other public property underhis or her discretion or control for the private benefit or business benefit of thepublic official, public employee, any other person, or principal campaigncommittee as defined in Section l7-22A-2, which would materially affect his orher financial interest, except as otherwise provided by law or as provided pursuantto a lawful employment agreement regulated by agency policy.n

Section 36-25-1 (24) states:

n(24)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.n

Section 36-25-1(8) states:

n(8) CONFLICT OF INTEREST. A conflict on the part ofa 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 her

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Lindsay MothershedAdvisory Opinion No. 97-25Page five

financial 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."

The Alabama Ethics Law strictly prohibits an employee of the State of Alabama doingsecondary work for a firm or business that they regulate during the course of their primary jobresponsibilities. In the request before the Commission, however, the work would be doneoutside the State of Alabama.

Based on the facts as provided and the above law, an Environmental Scientist ill with theAlabama Department of Environmental Management may do consulting environmental work fora firm located in Alabama, when the work is to be done outside the State of Alabama; provided,the following conditions are met:

(1). That all consulting work be done on his own time whether it be after hours or on annualleave;

(2). That no State of Alabama equipment, facilities, time, materials, human labor, or otherpublic property under his discretion or control be used in a manner to affect his consultingwork outside the State of Alabama;

(3). That the consulting work done outside the State of Alabama is not related to any work orbusiness he regulates in the course of his employment with ADEM; and further,

(4). That the Environmental Scientist, when performing consulting business outside the Stateof Alabama for a consulting firm located in Alabama, not use any confidentialinformation obtained in the course of his employment to benefit the consulting firmlocated in Alabama or any other regulated business.

(5). Should the consulting firm engage in any business within the State of Alabama, theEnvironmental Scientist III with ADEM may not do consulting work for that firm in theseventeen counties that he regulates through ADEM, when the consulting firm is doingbusiness with a firm that is regulated by ADEM. Nor may he engage in regulating theregulated entity employing the consulting firm.

Lindsay MothershedAdvisory Opinion No. 97-25Page six

CONCLUSION

An Environmental Scientist III with the Alabama Department of EnvironmentalManagement may enter into secondary employment with an Alabama consulting fIrm to doconsulting work in another state; provided, all consulting work is done on his own time whetherit is after hours or on annual leave; that no State of Alabama equipment, facilities, time,materials, human labor, or other public property under his discretion or control is used in amanner to affect his consulting work outside the State of Alabama; that the consulting work doneoutside the State of Alabama is not related to any work or business he regulates in the course ofhis employment with ADEM; and further, that the Environmental Scientist, when performingconsulting business outside the State of Alabama for a consulting fIrm located in Alabama, notuse any confIdential information obtained in the course of his employment to benefit theconsulting fIrm located in Alabama or any other regulated business.

Should the consulting fIrm employing the Environmental Scientist ill with ADEM engagein any business within the State of Alabama, the Environmental Scientist ill with ADEM maynot do consulting work for the firm in the seventeen counties that he regulates in his offIcialcapacity with ADEM, when the consulting fIrm is doing business with a firm that is regulated byADEM. Nor may he engage in regulating the regulated entity employing the consulting firm.

AUTHORITY

By 3 - 0 vote of the Alabama Ethics Commission on June 11, 1997.

Jimes T. Pursellhair

Alabama Ethics Commission

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