South Carolina State Ethics Commission
5000 Thurmond Mall, Suite 250
Columbia, South Carolina 29201

SEC AO2001-005                                                                                                 January 17, 2001

SUBJECT: OFF-DUTY EMPLOYMENT

SUMMARY: A Department of Transportation engineer is advised that he may provide consulting services to local engineering design firms while off-duty; however, he must adhere to the off-duty guidelines and other sections of the Ethics Reform Act.

QUESTION: A Department of Transportation engineer asks whether he may provide off-duty consulting services on private development projects to local engineering design firms.

DISCUSSION:

The State Ethics Commission’s jurisdiction is limited to the applicability of the Ethics, Government Accountability, and Campaign Reform Act of 1991 (Act no. 248 of 1991; Section 2-17-5 et seq. and Section 8-13-100 et seq., as amended, 1976 Code of Laws of South Carolina). This opinion does not supersede any other statutory or regulatory restrictions or procedures which may apply to this situation. Failure to disclose relevant information may void the opinion.

In prior advisory opinions, the State Ethics Commission has advised that a public employee may engage in outside employment consistent with established guidelines: (1)that no public materials or equipment are utilized, except as provided by Section 8-13-700(A), (2) such work is engaged in on the employee's own time, (3) the work does not interfere with the needs of the agency, and (4) the public position is not utilized to obtain or continue the employment.

In addition to the off-duty guidelines, the State Ethics Commission calls attention to Section 8-13-700(B). If the DOT engineer is required to take an official action as a

public employee which will affect the economic interests of an engineering design firm for whom he is consulting, then he must follow the recusal procedures of Section 8-13-700(B), which provides:

(B) No public official, public member, or public employee may make, participate in making, or in any way attempt to use his office, membership, or employment to influence a governmental decision in which he, a member of his immediate family, an individual with whom he is associated, or a business with which he is associated has an economic interest. A public official, public member, or public employee who, in the discharge of his official responsibilities, is required to take an action or make a decision which affects an economic interest of himself, a member of his immediate family, an individual with whom he is associated, or a business with which he is associated shall:

(1) prepare a written statement describing the matter requiring action or decisions and the nature of his potential conflict of interest with respect to the action or decision;

(3) if he is a public employee, he shall furnish a copy of the statement to his superior, if any, who shall assign the matter to another employee who does not have a potential conflict of interest. If he has no immediate superior, he shall take the action prescribed by the State Ethics Commission;

Further, the Commission calls attention to Section 8-13-720, which provides:

No person may offer or pay to a public official, public member, or public employee and no public official, public member, or public employee may solicit or receive money in addition to that received by the public official, public member, or public employee in his official capacity for advice or assistance given in the course of his employment as a public official, public member, or public employee.

Finally, the Commission calls attention to Section 8-13-725, which provides

No public official, public member, or public employee may use or disclose confidential information gained in the course of or by reason of his official responsibilities in any way that would affect an economic interest held by himself, a member of his immediate family, an individual with whom he is associated, or a business with which he is associated.

A public employee must not receive additional compensation from his off-duty employment, if he is being paid to provide those services through his public employment. Finally, a public employee must not use or disclose confidential information he gains in his public employment to affect the economic interest of himself, an immediate family member, an individual with which he is associated, or a business with which he is associated.

Provided such work is done consistent with the off-duty guidelines and discussed sections of the Ethics Reform Act, the Commission knows of no reason why the DOT engineer could not provide consulting services on private development projects to local engineering design firms.

CONCLUSION:

Accordingly, the Commission believes that the DOT engineer may provide off-duty consulting services on private development projects to local engineering design firms, as long as he adheres to the off-duty guidelines, the recusal provisions of Section 8-13-700(B), dual payment prohibitions of Section 8-13-720 and the confidentiality provisions of Section 8-13-725.

KEY WORDS: off-duty employment

ANNOTATIONS: Section 8-13-700(B), 720 and 725