AO 99-012

June 24, 1999

Ms. Becky Keith

Human Resources Director/Ethics Liaison

Department of Transportation

Raleigh, North Carolina 27603-8003

Re: Department of Transportation

Secondary Employment

AO-99-012

Dear Ms. Keith:

I will be happy to respond to your June 10 request regarding a secondary employment situation at the Department of Transportation ("the Department" or "DOT"). Before I do, however, you need to be aware of several significant limitations on the scope of this response. First, according to both Executive Order 127 ("EO 127" or "the Order") and the Board of Ethics' ("BOE" or "the Board") "Rules and Regulations," the subject of your inquiry, Mr. W. E. Ratterree, is neither a covered "Public Official" nor an individual otherwise covered by EO 127. Thus, he is not subject to the Board's jurisdiction. See EO 127, §§3, 4(h), & 9; "Rules and Regulations," §VI. Furthermore, the Board's rules discourage advisory opinions to department ethics liaisons if the subject is covered by rules and regulations promulgated by the State Personnel Office and/or the individual department or agency. Section VI (a)(ii). According to the information provided to me, the issue of secondary employment appears to be covered in section 4 of the State Personnel Manual (effective August 1, 1978). The Board is not charged with interpreting or enforcing this provision. Finally, any conflict between a provision of the Order and other North Carolina law, including personnel laws, must be resolved in favor of the law. EO 127, §4(i). Your legal counsel is the appropriate person to interpret and resolve any discrepancies between the two.

With the foregoing limitations in mind, the following preliminary advisory opinion is issued by Board staff in the spirit of providing reasonable assistance to Public Officials or other State employees dealing with ethical questions and concerns. See EO 127, §4(a). Subject to the jurisdictional limitations mentioned above, this opinion may be relied upon until and unless it is formally modified or rescinded by the full Board. "Rules and Regulations," §VI(d)(i). Once the Board formally approves, modifies, or otherwise disposes of the preliminary opinion, all pertinent parties will be so notified.

All advisory opinions, both preliminary and final, are based upon the particular facts presented and issues raised in the specific request for an advisory opinion. As such, the scope of each opinion is limited to the request made and should only serve as a recommendation to the particular parties involved. It may, however, serve as a general guide to other individuals similarly situated.

I understand the basic facts to be as follows. Mr. Ratterree is a registered professional engineer1 who works in the Facilities Design Section of the Department. Among other things, Mr. Ratterree does structural design work for the Department. Structural design work is one of the major disciplines in the design of buildings. In July of 1998, Mr. Ratterree sought and was given permission to engage in secondary employment in the form of "hourly structural engineering consulting" work. Both the seeking and granting of this approval was conditioned upon there not being any "direct or indirect conflict of interest" between the primary and secondary employment. Mr. Ratterree's supervisor did not foresee any direct or indirect conflict of interest at the time he approved the secondary employment but stated that he would monitor the situation to ensure that no adverse impacts developed in the future.

One of the employers for whom Mr. Ratterree performs structural engineering work is Mr. Algie Stephens. Mr. Stephens leases several buildings to the Department, and this fact was known to Mr. Ratterree's supervisors before approval of the secondary employment. In response to a DOT proposal for leasing consolidated warehouse space, Mr. Stephens proposes to build a new facility for such purpose. He has asked Mr. Ratterree to perform structural design work on this project. Mr. Ratterree is not involved with the leasing, real property acquisition, management, or other aspects of Mr. Stephens' business. In addition to his structural engineering work, however, Mr. Ratterree does provide consultation in resolving structural construction problems. If I am mistaken about any of the foregoing facts, or if there is additional relevant information needed for a complete understanding of the issues involved, please let me know at once.

Public Officials must perform their official duties in a manner to promote the best interests of the public. EO 127, § 7. This encompasses avoiding not only conflicts of interest but also the appearance of conflicts of interest. Section 7 (b) of the Order addresses appearances of conflict of interest. An appearance of conflict exists when a reasonable person would conclude from the circumstances that the Official's ability to protect the public interest, or perform public duties, is compromised by personal interests. An appearance of conflict may exist even in the absence of a true conflict of interest.

At a minimum, performing outside structural engineering work on a building to be leased to the Department, Mr. Ratterree's primary employer for whom he performs the exact same services, would create the appearance of a conflict of interest. Moreover, there is the potential for an actual conflict of interest should a problem with the building arise. For example, if a structural problem develops which jeopardizes the Department's lease, Mr. Ratterree would find himself between the proverbial "rock and a hard place." He could find himself having to defend his outside work to his primary employer, potentially to the detriment of both. The Department, and thus the public, could lose the expertise and services of a key employee in this situation. Mr. Ratterree could even be forced to be a witness against the Department in a legal proceeding.

This is not to say that there is any "fault" in the present situation. Mr. Ratterree should be commended for his honest and forthright handling of the entire secondary employment situation. He appears to have proceeded "by the book." By the same token, by approving outside consulting work in general, Mr. Ratterree's supervisors probably did not envision the situation where the secondary employer would request assistance on a project directly for the primary employer. This is something appropriate personnel might want to consider in approving secondary employment in the future.

I hope this opinion adequately addresses the questions raised in your request, but if it does not, please do not hesitate to call on me for further discussion and analysis.

Sincerely,

Perry Y. Newson

Executive Director

cc: Mr. George F. Bason, Chairman

Acting Secretary David McCoy

Mr. Cameron W. Lee, Jr.

Mr. W. E. Ratterree

1 I have not examined, and this opinion does not encompass, any issues pertaining to the regulation of potential conflicts by appropriate engineering licensing authorities.