No. 09-I-1 State Ethics Commission Official Advisory Opinion January 2009
The Indiana State Ethics Commission (“Commission”) issues the following advisory opinion concerning the State Code of Ethics pursuant to IC 4-2-6(b)(1).
Summary
42 IAC 1-5-5 Outside employment (IC 4-2-6-5.5)
42 IAC 1-5-6 Conflicts of interest; decisions and voting (IC 4-2-6-9)
An Administrative Secretary with the ATC sought advice on whether it was appropriate for her to seek outside employment with a private party as the instructor of a server training course that is mandated by the ATC. SEC found that, due to the nature of the Secretary’s official duties with the ATC, no conflict of interest would arise in her obtaining outside employment to deliver a server training course with a private company that is regulated by her state employer.
Background
A state employee who is currently employed as an Administrative Secretary with the Alcohol and Tobacco Commission (“ATC”) would like to pursue an outside employment opportunity with a private company to provide a server training course that is being mandated by the ATC.
Beginning in 2010, a server training course will be mandated for all alcoholic beverage servers in the state of Indiana. Ind. Code 7.1-3-1.5. The ATC is currently drafting administrative rules to allow private party providers to conduct training for alcoholic beverage servers. The ATC is of the opinion that performing server training in a private setting is incompatible with an ATC employee’s duties because the ATC will be issuing permits to the private companies to perform the training.
Issues
Does a conflict of interest under IC 4-2-6-5.5 arise for the Administrative Secretary if she seeks outside employment with a private company that is regulated by the ATC to deliver a server training course while still employed by the ATC?
Relevant Law
IC 4-2-6-5.5: Conflict of interest; advisory opinion by inspector general
IC 4-2-6-9: Conflict of economic interests
Analysis
A. IC 4-2-6-5.5, Conflict of Interest, Outside Employment
In this case, a conflict of interest under IC 4-2-6-5.5 would not arise for the Administrative Secretary if she seeks outside employment with a private company to deliver a mandatory server training course. Although the Administrative Secretary would be moonlighting with a company that is regulated by the ATC, her outside employment would not trigger the provision of IC 4-2-6-5.5. More specifically, because the Administrative Secretary does not have discretionary authority within the ATC, her outside employment would not require her to recuse herself from matters that are central or critical to the performance of her official duties. Similarly, she would not appear to be required to disclose confidential information in her outside employment. Finally, while the amount of compensation that the Administrative Secretary would receive for moonlighting is unknown at this point, it is unlikely that the Administrative Secretary would not appear to be in a position to secure unwarranted privileges because of her employment with the ATC.
B. IC 4-2-6-9, Conflicts of Interest, Decisions and Voting
Should the Administrative Secretary seek outside employment with a company to provide server training, she must ensure compliance with IC 4-2-6-9. In this case, the Administrative Secretary would be prohibited from participating in any decision or vote in which she or the company for which she would work for had a financial interest in the outcome of the matter.
Conclusion
Subject to the foregoing analysis, the Commission finds that a conflict of interest under IC 4-2-6-5.5 would not arise for the Administrative Secretary if she seeks outside employment to deliver a server training course with a private company that is regulated by her state employer.