0»COMMISSIONERS

Henry B. Gray III, ChairmanCamille S. Butrus, Vice-ChairmanHelen Shores Lee, Esq.John H. Watson

Lewis G. adorn, Jr., Esq.

Benjamin C. MaumeneeAttorney at Law23 N. Section StreetFairhope, Alabama 36532

S1 A1E 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

Hugh R. Evans, IIIAssistant Director

General Counsel

July 1, 1998

TELEPHONE (334) 242-2997

FAX (334) 242-0248

ADVISORY OPINION NO. 98-37

Outside Employment/ConflictOf Interests/Police OfficerPerforming SecurityConsulting Work On His Off-Duty Hours.

A Police Officer may perform securityconsulting work during his off-duty hours~provided, he not use his position, or themantle of his office as a Police Officer, toobtain business opportunities or conduct hisprivate business~ that he not use or cause tobe used equipment, facilities,time, materials,human labor, or other public property underhis discretion or control to assist him inconducting or securing the securityconsulting work; that he perform the securityconsulting work on his own time, whether itis after hours, on weekends, etc.; andprovided further, that he not use anyconfidential information obtained in thecourse of his employment as a Police Officerto benefit his security business.

The requestor of this opinion is advised thatthere may be Departmental Policies orGuidelinesthat regulate outside employmentwhich may prohibit such outsideemployment.

Benjamin C. MaumeneeAdvisory Opinion No. 98-37Page two

As other statutes may be applicableotherthan the AlabamaEthics Law, the requestorof this opinion is advised to contact theOffice of Attorney General for an AdvisoryOpinion.

Dear Mr. Maumenee:

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

OUESTION PRESENTED

Maya full-time law enforcement officer perform security consultingwork on his off-duty hours without violating the AlabamaEthicsLaw?

FACTS AND ANALYSIS

Benjamin C. Maumenee represents JimmieFlanagan, a police officer in lower Alabama,who would like to become involved in a business venture, but is unsure whether or not there areany conflicts involved due to his position as a policeman. Therefore, he has requested anAdvisory Opinion from the Ethics Commissionin this regard.

Mr. Flanagan has been a full-timelaw enforcement officer for over 25 years and desires tocontinue in that capacity for the immediatefuture. Mr. Flanagan desires to found and helpmanage a business venture in the private sector where he will be directly involved in theownership of the business primarily,with little or no direct involvementwith the day-to-dayoperations.

The business entity will offer and provide pre-employment and employee backgroundinvestigations through such agencies as credit bureaus, public domain, court records, etc., toprivate businesses, as well as security consulting (evaluate operations in businesses and suggestways to minimize"risk exposure" and the potential for loss). The business entity would alsodevelop and implement training of the business entity's employees.

Mr. Flanagan's direct involvementwith security consultingwould generallyentailconferring with and designing programs for national chain store accounts, and all these activities

Benjamin C. MaumeneeAdvisory OpinionNo. 98-37Page three

would be done during off-duty hours.

The AlabamaEthics Law, Section 36-25-1(23) states:

"(23) PUBLIC EMPLOYEE. Any person employed at the state, county, ormunicipal level of government or their instrumentalities, includinggovernmentalcorporations 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 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 limitedto 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) states:

"(2) BUSINESS WITH WInCH THE PERSON IS ASSOCIATED. Any businessof which the person or a member of his or her familyis an officer, owner, partner,board of director member, employee, or holder of more than five percent of thefair market value of the business."

Section 36-25-1(8) states:

"(8) CONFLICT OF INTEREST. A conflict on the part of a public officialorpublic employeebetween 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 officialor public employee in thedischarge of his or her officialduties which would materiallyaffect his or herfinancial interest or those of his or her familymembers or any business with whichthe person is associated in a manner different ftom the manner it affects the othermembers of the class to which he or she belongs."

Section 36-25-5(a) states:

"(a) No public officialor public employee shalluse or cause to be used his or herofficialposition 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 thepublic official,public employee, or a familymember thereof receives, obtains,

Benjamin C. MaumeneeAdvisory OpinionNo. 98-37Page four

exerts control over, or otherwise converts to personal use the object constitutingsuch personal gain."

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 business benefit of thepublic official,public employee, any other person, or principal campaigncommittee as defined in Section 17-22A-2, which would materially affect his or herfinancial interest, except as otherwise provided by law or as provided pursuant to alawful employmentagreement regulated by agency policy."

Section 36-25-8 states:

''No public official,public employee,former public officialor former publicemployee, for a period consistent with the statute of limitationsas contained in thischapter, shalluse or disclose confidentialinformation gained in the course of or byreason of his or her position or employment in any way that could result infinancialgain other than his or her regular salary as such public officialor publicemployee for himselfor herself, a familymember of the public employee or familymember of the public official, or for any other person or business."

Based on the facts as presented and the above referenced law, a Police Officer mayperform security consultingwork during his off-duty hours; provided, he not use his position, orthe mantle of his office as a Police Officer, to obtain business opportunities or conduct his privatebusiness; that he not use or cause to be used equipment, facilities,time, materials, human labor,or other public property under his discretion or control to assist him in conducting or securing thesecurity consulting work; that he perform the security consultingwork on his own time, whetherit is after hours, on weekends, etc.; and provided further, that he not use any confidentialinformation obtained in the course of his employment as a Police Officer to benefit his securitybusiness.

It should be noted that there may be Departmental Policies or Guidelines that regulateoutside employmentwhich may prohibit such outside employment.

Further, as other statutes may be applicable other than the AlabamaEthics Law, therequestor of this opinion is advised to contact the Office of Attorney General for an AdvisoryOpinion.

Benjamin C. MaumeneeAdvisory OpinionNo. 98-37Page five

CONCLUSION

A Police Officermay perform security consulting work during his off-duty hours;provided, he not use his position, or the mantle of his office as a Police Officer, to obtain businessopportunities or conduct his private business; that he not use or cause to be used equipment,facilities, time, materials, human labor, or other public property under his discretion or control toassist him in conducting or securing the security consulting work; that he perform the securityconsulting work on his own time, whether it is after hours, on weekends, etc.; and providedfurther, that he not use any confidential information obtained in the course of his employment as aPolice Officer to benefit his security business.

The requestor of this opinion is advised that there may be Departmental Policies orGuidelines that regulate outside employmentwhich may prohibit such outside employment.

As other statutes may be applicableother than the AlabamaEthics Law, the requestor ofthis opinion is advised to contact the Office of Attorney General for an Advisory Opinion.

AUTHORITY

By 4-0 vote of the Alabama Ethics Commission on July 1, 1998.

HeChairAlabamaEthics Commission