STATE OF ALABAMA

ETHICS COMMISSIONMAILING ADDRESS

P.O. BOX 4840

MONTGOMERY. AL36103-4840

STREET ADDRESS

RSA UNION100 NORTH UNION STREET

SUITE 104

MONTGOMERY. AL 36104COMMISSIONERS

Nancy Edwards Eldridge, Chair

John H. Cooper, Esq.. Vice-ChairCameron McDonald Vowell. Ph.D.

Michael K.K. Choy, Esq.Linda L. Green

James L. Sumner, Jr.Director

TIilJEPHONE (334) 242-2997

FAX (334) 242-0248WEB SITE www.ethics.alalinc.net

October 4. 2006

ADVISORY OPINION NO. 2006-20

Kippy Tate, AlADirectorAlabama Building Commission3214 Tyler RoadMontgomery, Alabama 36110

Revolving Door/Former Director Of TheAlabama Building Commission SeekingEmployment In Architectural Field UponHis Retirement

The former Director of the AlabamaBuilding Commission may, upon hisretirement from public service, acceptemployment with an architectural firm;provided, that he did not personallyparticipate in the direct regulation, audit orinvestigation of that architectural firm for aperiod of at least two years prior to hisleaving service with the Alabama BuildingCommission.

For a period of two years after leaving theAlabama Building Commission, the formerDirector may not represent clients, includinghis new employer in any matters before theAlabama Building Commission.

Dear Mr. Tate:

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.

Kippy Tate, AlAAdvisory Opinion No. 2006-20Page two

QUESTION PRESENTED

May the Director of the Alabama Building Commission, who is a licensed architect, uponhis leaving the Building Commission, be employed in the architectural field?

FACTS AND ANALYSIS

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

Kippy Tate is a licensed architect, and has served as Director of the Alabama BuildingCommission since March of2000. In the event that he decides to leave public service, he wouldlike to fully understand how his future employment options may be limited by the applicableEthics laws and thus seeks this Advisory Opinion.

The Alabama Building Commission is a statutory entity created pursuant to AlabamaCode Section 41-9-140 et seq. and operates under the Alabama Building CommissionAdministrative Code. The primary function of the Alabama Building Commission involvespromulgating and enforcing the State Building Code through plan reviews, inspections andserving as the contract administrator for state-funded construction. As Director of the AlabamaBuilding Commission Technical Staff, Mr. Tate is routinely involved in the administration andapproval of contracts for the construction of public buildings in Alabama, the review andapproval of architectural plans and agreements to ensure compliance with the State BuildingCode and the Manual of Procedures for construction projects that come under the jurisdiction ofthe Alabama Building Commission, and renders binding decisions involving disputes arisingfrom construction contracts.

Mr. Tate states that architects on such public projects are employed by the public entitiesinvolved with the construction project, and the Alabama Building Commission does not contractwith such architects. According to Mr. Tate, the Alabama Building Commission does notparticipate in the direct regulation, audit or investigation of architects. The regulation ofarchitects is governed by the Alabama State Board for the Registration of Architects created bystatute.

Generally speaking, the Building Commission serves to ensure compliance with thestatewide building codes adopted and promulgated by the Building Commission.

The Building Commission gets involved in the review and approval of contracts betweenowners and architects, and contracts between owners and general contractors for State buildingsand school building projects. The Building Commission is not a contracting party to the

Kippy Tate, AlAAdvisory Opinion No. 2006-20Page three

contracts that it reviews and approves. The Building Commission routinely interacts witharchitects who represent the interest of owners constructing buildings in Alabama; however, theBuilding Commission does not participate in the negotiation ofthe contracts between the ownersand architects. The Building Commission does not approve contracts until applicable statestatues and the requirements of the Building Commission's Manual of Procedures are satisfied.

Mr. Tate states that the Building Commission reviews and approves plans for buildingswhich come under the jurisdiction of the Building Commission. If the work product of anarchitect does not meet the applicable standards, the Building Commission will not approvesubmitted plans until the regulations imposed by state statutes and the Building Commission'sManual of Procedures are met.

The Building Commission also facilitates dispute resolution involving contracts subjectto Building Commission review. The Director conducts hearings where parties to disputespresent their claims in writing and orally. The Director renders decisions resolving suchdisputes.

Mr. Tate inquires as to whether his tenure as Director of the Alabama BuildingCommission would prevent his employment by an architectural firm in Alabama under the"Revolving Door" provisions of the Ethics Law. He further asks, ifhe is permitted to becomeemployed by an architectural firm in Alabama within two years of leaving his position asDirector of the Building Commission, does Section 36-25-13 prevent him from representing aclient of any architectural firm before the Alabama Building Commission regarding any matterfor a period of two years.

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 ofthose 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:'

Kippy Tate, AlAAdvisory Opinion No. 2006-20Page four

Section 36-25-13(b) states:

"(b) No public employee shall serve for a fee as a lobbyist or otherwise representclients, including his 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 shall not include a former employee of the Alabama judiciary who asan attorney represents a client in a legal, non-lobbying capacity."

Section 36-25-13( c) states:

"(c) No public official, director, assistant director, department or division chief,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 awards shallenter into, solicit, or negotiate a contract, grant, or award with the governmental agencyof which the person was a member or employee for a period of two years after he or sheleaves the membership or employment of such governmental agency."

Section 36-25-13(d) states:

"(d) No public official or public employee who personally participates in thedirect regulation, audit, or investigation of a private business, corporation,partnership, or individual shall within two years of his or her departure from suchemployment solicit or accept employment with such private business, corporation,partnership, or individual."

The "Revolving Door" provisions of the Ethics Law prohibit certain activities by publicofficials and public employees for a period of two years after leaving their public employment.Specifically, a public official or public employee may not, for a period of two years after leavingemployment with the public entity, have business dealings back with that public entity on behalfof either himself/herself, his or her new employer or clients, for a period of two years. It does notmatter what the former public official's or public employee's job responsibilities were whileemployed with the public entity, nor does it matter what his or her current activities are. It is anacross-the-board prohibition that applies to everyone in the public sector equally.

Inaddition, the "Revolving Door" provisions of the Ethics Law prohibit individuals whohave personally participated in the direct regulation, audit or investigation of a private entity, orwho were involved in the contractual process between the public entity and a private entity fromaccepting employment with that private entity for a period of two years.

Kippy Tate, AlAAdvisory Opinion No. 2006-20Page five

On September 5, 2001, the Commission rendered Advisory Opinion No. 2001-46, whichheld that:

"An Environmental Planning Specialist III with ALDOT may not provideenvironmental consulting services to firms or other private entities with which hepersonally participated in the direct regulation, audit, or investigation ofthat entitywhile employed with ALDOT, for a period of two years after retiring, or for twoyears after having personally participated in the direct regulation, audit, orinvestigation of that private entity, whichever time period is longer."

Therefore, if it has been at least two years since Mr. Tate was personally involved with aspecific architectural firm, he would not be prohibited by the "Revolving Door" provisions fromaccepting employment with that firm.

While the Ethics Law does not define the term "regulate," the Ethics Commission hasalways used its commonly accepted definition in interpreting this statute.

Black's Law Dictionary. F{fih Edition, defines regulate as:

"To fix. establish or control; to adjust by rule, method or establish mode; to directby rule or restriction; to subject to governing principles or laws." (VirginianRailway Company v. System Federation No. 40, Railway Employees Departmentof American Federation ofLahor, C.C.A. Va., 84 F.2d. 641, 650.)

Black's Law Dictionary, Fifth Edition, defines regulation as:

"A rule or order prescribed for management or government."

"Regulation is rule or order having force of law issued by executive authority ofgovernment." (State ex reI. Villines v. Freeman, Ok!., 370 P.2d 307, 309.)

Therefore, for purposes of the Ethics Law, regulate involves a scenario where a publicofficial or public employee has the discretionary authority to determine or influence how aprivate entity conducts its business with the government, and whether or not that private entity iscomplying with established guidelines and principles. It would appear, for purposes of the EthicsLaw, that Mr. Tate's involvement with certain architectural firms would fall under the generallyestablished interpretation of the word "regulate."

While the Alabama Building Commission does not per se regulate architects andarchitectural firms, its authority under the Code of Alabama allowing them to promulgate and

Kippy Tate, AlAAdvisory Opinion No. 2006-20Page six

enforce the State Building Code through plan reviews and inspections, mediation, etc. puts theDirector of the Building Commission in a position where he can impact how an architectural firmconducts business with the State of Alabama.

Therefore, for a period of two years after leaving his position as Director of the AlabamaBuilding Commission, or for a period of two years since having personally participated in theregulation of a particular architectural firm, Mr. Tate may not accept employment with anarchitectural firm whose plans he has reviewed, whose work he has inspected, or whom he hashad dealings with in dispute resolution.

Based on the facts as provided and the above law, the former Director of the AlabamaBuilding Commission may, upon his retirement from public service, accept employment with anarchitectural firm; provided, that he did not personally participate in the direct regulation, auditor investigation of that architectural firm for a period of at least two years prior to his leavingservice with the Alabama Building Commission.

For a period of two years after leaving the Alabama Building Commission, the formerDirector may not represent clients. including his new employer, in any matters before theAlabama Building Commission.

CONCLUSION

The former Director ofthe Alabama Building Commission may, upon his retirement frompublic service, accept employment with an architectural firm; provided, that he did not personallyparticipate in the direct regulation. audit or investigation of that architectural firm for a period ofat least two years prior to his leaving service with the Alabama Building Commission.

For a period of two years after leaving the Alabama Building Commission, the formerDirector may not represent clients. including his new employer, in any matters before theAlabama Building Commission.

AUTHORITY

By 3-0 vote of the Alabama Ethics Commission on Octo_ber4, 2006.