COMMISSIONERS

John H. Watson, ChairmanLewis G. Odom, Jr., Esq., Vice-ChairmanRussell Jackson Drake, Esq.J. Harold Sorrells

Raymond L. Bell, Jr., Esq.

Robert W, Ennis, IVCity AttorneyCity of TuscaloosaLegal Department2201 University BoulevardTuscaloosa, Alabama 35401

STATE OF ALABAMA

ETHICS COMMISSIONMAILING 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.aJalinc.net

June 6, 2001

ADVISORY OPINION NO. 2001-34

Revolving Door/Conflict Of InterestIFormerCity Clerk Of The City Of Tuscaloosa,Alabama, Employed As Part-Time DirectorOf A Non-Profit Organization IndirectlyFunded By The City Of Tuscaloosa,Accepting Re-Employment As City Clerk.

The former City Clerk ofthe City ofTuscaloosa, Alabama, who retired more thantwo years ago and who is currentlyemployed as the part-time Director oftheSister City Commission, a non-profitorganization funded indirectlyby the City ofTuscaloosa, may be rehired as City Clerk ofthe City of Tuscaloosa; provided, that he hasno involvementin either the funding of orappointments to the Sister City Commission,and that there is no use of City of Tuscaloosaequipment, facilities, time, materials, humanlabor, or other public property under hisdiscretion or control to assist him inperforming his duties as part-time Directorofthe Sister City Commission.

Robert W. Ennis, IVAdvisory Opinion No. 2001-34Page two

Dear Mr. Ennis:

The AlabamaEthics Commissionis in receipt of your request for an AdvisoryOpinion ofthis Commission, and this opinion is issued pursuant to that request.

QUESTION PRESENTED

May the City of Tuscaloosa's former City Clerk, who retired more than two years ago andwho currently serves as part-time Director of the Sister City Commission, a non-profitorganization which is funded indirectlyby the City of Tuscaloosa, accept re-employment as CityClerk of the City of Tuscaloosa while maintaininghis position as part-time Director of the SisterCity Commission?

FACTS AND ANALYSIS

The facts as have been provided to this Commissionare as follows:

The City of Tuscaloosa's former City Clerk retired several years ago (more than twoyears), and since then has been working part-time as Director of a non-profit organization knownas the Sister City Commission. In that capacity, he basicallycoordinates visits ftom the City'sSister Cities in Japan and Germany as well as visits ftom representatives of the City of Tuscaloosato those respective countries.

The Sister City Commission of the City of Tuscaloosa is not funded directly by the City,but is funded by the Convention and Visitors Bureau which is directly funded by the City ofTuscaloosa. Some members of each of the Board of Directors are appointed by the City Councilof the City of Tuscaloosa.

Recently, the City Clerk for the City of Tuscaloosa resigned and the former City Clerk hasapplied to the Civil Service Board for that position; however, he has inquired as to whether or nothe can retain his part-time job as Director of the Sister City Commissionwhile accepting anappointment to the full-timeCivil Service position as City Clerk of the City of Tuscaloosa.

Mr. Ennis points out that, as City Clerk, this individualwould have no authority to makeappointments to either board nor control, in any manner, the funding of the parent organization orthe Sister City Commission.

Robert W. Ennis, IVAdvisory Opinion No. 2001-34Page three

The AlabamaEthics Law, Code of Alabama. 1975, Section 36-25-1(24) defines a publicofficialas:

"(24) PUBLIC OFFICIAL. Anyperson elected to public office, whether or notthat person has taken office, by the vote of the people at state, county, ormunicipal level of government or their instrumentalities, includinggovernmentalcorporations, and any person appointed to a position at the state, county, ormunicipal level of government or their instrumentalities, includinggovernmentalcorporations. For purposes of this chapter, a public official includes the chairs andvice-chairs or the equivalent officesof each state politicalparty as defined inSection 17-16-2."

Section 36-25-1(23) defines a public employee as:

"(23) PUBLIC EMPWYEE. Any person employed at the state, county, ormunicipal level of government or their instrumentalities,including governmentalcorporations and authorities, but excluding employeesof hospitals or other healthcare corporations including contract employees of those hospitals or other healthcare corporations, who is paid in whole or in part ftom 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 36-25-13(b) states:

"(b) No public employee shall serve for a fee as a lobbyist or otherwise representclients, includinghis or her employer before the board, agency, commission,ordepartment, of which he or she is a former employee for a period of two yearsafter he or she leaves such employment. For the purposes of this subsection, suchprohibition shallnot include a former employee of the Alabamajudiciary who as anattorney represents a client in a legal, non-lobbying capacity."

Section 36-25-13(c) states:

"(c) No public official, director, assistant director, department or divisionchief,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 awardsshall enter into, solicit, or negotiate a contract, grant, or award with the

Robert W. Ennis, IVAdvisory OpinionNo. 2001-34Page four

governmental agency of which the person was a member or employee for a periodof two years after he or she leaves the membership or employment of suchgovernmental agency."

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

"(b) An essentialprinciple underlyingthe staffing of our governmental structure isthat its public officialsand public employees should not be denied the opportunity,available to all other citizens, to acquire and retain private economic and otherinterests, except where conflictswith the responsibilityof public officialsandpublic employeesto the public cannot be avoided."

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

"(8) CONFLICT OF INTEREST. A conflict on the part of a public officialorpublic employeebetween his or her private interests and the official responsibilitiesinherent in an office of public trust. A conflict of interest involves any action,inaction, or decision by a public officialor public employee in the discharge of hisor her officialduties which would materiallyaffect his or her financialinterest orthose of his or her familymembers or any business with which the person isassociated in a manner different ftom the manner it affects the other members ofthe class to which he or she belongs."

Section 36-25-5(c) states:

"(c) No public official or public employee shalluse or cause to be used equipment,facilities, time, materials, human labor, or other public property under his or herdiscretion or control for the private benefit or businessbenefit of the public official,public employee, any other person, or principal campaign committee as defined inSection 17-22A-2, which would materiallyaffect his or her financial interest,except as otherwise provided by law or as provided pursuant to a lawfulemployment agreement regulated by agency policy."

Section 36-25-5(a) states:

"(a) No public officialor public employee shalluse or cause to be used his or herofficial position or office to obtain personal gain for himselfor herself, or familymember of the public employee or familymember of the public official,or anybusiness with which the person is associated unless the use and gain areotherwise specificallyauthorized by law. Personal gain is achieved when the

___n_ _._______

Robert W. Ennis, IVAdvisory Opinion No. 2001-34Page five

public official,public employee, or a familymember thereof receives, obtains,exerts control over, or otherwise converts to personal use the object constitutingsuch personal gain."

As the former City Clerk has been retired ftom that position for more than two years,there is no prohibitionunder the "Revolving Door" provisions of the Alabama Ethics Law in hisbeing rehired to that position.

In addition, as he is not involved in the funding of or appointments to either the Sister CityCommission or the Convention and Visitors Bureau, there is no conflict of interest in hismaintaininghis part-time employment as Director of the Sister City Commission;provided, thatall work done in conjunction with that position is done on his own time, and that there is no use ofCity of Tuscaloosa time, labor, facilities,etc., to assist him in performing those job functions.

Based on the facts as provided and the above law, the former City Clerk of the City ofTuscaloosa, Alabama, who retired more than two years ago and who is currently employed as thepart-time Director ofthe Sister City Commission,a non-profit organization funded indirectlybythe City of Tuscaloosa, may be rehired as City Clerk of the City of Tuscaloosa; provided, that hehas no involvement in either the funding of or appointments to the Sister City Commission, andthat there is no use of City of Tuscaloosa equipment, facilities,time, materials, human labor, orother public property under his discretion or control to assist him in performing his duties as part-time Director of the Sister City Commission.

CONCLUSION

The former City Clerk of the City ofTusca1oosa, Alabama,who retired more than twoyears ago and who is currently employed as the part-time Director of the Sister City Commission,a non-profit organization funded indirectlyby the City of Tuscaloosa, may be rehired as CityClerk of the City of Tuscaloosa; provided, that he has no involvementin either the funding of orappointments to the Sister City Commission,and that there is no use of City of Tuscaloosaequipment, facilities, time, materials, human labor, or other public property under his discretion orcontrol to assist him in performing his duties as part-time Director of the Sister City Commission.

Robert W. Ennis, IVAdvisory OpinionNo. 2001-34Page six

AUTHORITY

By 5-0 vote of the Alabama Ethics Commission on June 6, 2001.

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alrAlabamaEthics Commission