5 minute read
Ethically Speaking
Do you want to retire, but want to remain active in your school or district?
Mark Boardman, Attorney Boardman, Carr, Petelos, Watkins & Ogle P.C.
The Alabama Ethics Commission has revised its position and now allows a retiree who held a position of authority with a board of education to accept part-time hourly employment with the same board of education, without waiting two years. The Ethics Commission has made a change for smart public policy reasons. This is great news for CLAS members and for boards of education.
These changes were made clear on December 2, 2020, in Ethics Commission Advisory Opinion 2020-07. This change renders incorrect my article in the Fall 2020 issue of CLAS School Leader. In that article, I addressed Advisory Opinions 2019-11, 2020-02, and 2020-03, which raised this possible change. As noted in the Fall 2020 article, the Ethics Commission then was applying an interpretation of the “two-year-revolving door” statute (found in Alabama Code Section 36-25-13(d)) which prevented an employee in a position of authority from immediately returning to work after retirement. That section prevents a person who exercises authority for a government agency to “enter into, solicit, or negotiate a contract, grant, or award with a government agency . . . for a period of two-years after he or she leaves . . . employment of such government agency.”
The Ethics Commission’s prior interpretation of the two-year revolving door statute lead to problems serving the public. For example, in Advisory Opinion 2013-04, a retired city administrator could not come back, after his retirement, to assist the city in its transition to a new city administrator. The Legislature responded by enacting a three-month “carve-out” on the two-year revolving door. For the first 90 days following retirement, the retiree, under that statute, may return to work for the same government unit provided that the retiree receives no more pay (when combined with retirement) than the retiree previously made. Prior to beginning work, the Director of the Ethics Commission must approve the retiree’s contract. Alabama Code Section 36-25- 13(d)(1)(2)(3) and (4).
The wise change in interpretation the Ethics Commission voiced in Advisory Opinion 2020-07 is that the two-year revolving door provision does not apply to agencies or government bodies which hire former employees. Instead, the Ethics Commission now holds that public employees who held a position of authority may later seek reemployment with a government agency that previously employed them without violating the two-year revolving door. The Code of Ethics Clarification and Reform Commission suggested this to the Ethics Commission. (You can obtain a copy of this report from the Legislative Services Agency.) But, like everything, certain conditions apply.
The Ethics Commission in Advisory Opinion 2020-07 allowed the retiring Vice-Chancellor of Teaching and Learning for the Alabama Community College System to come back to work to supervise the Teaching and Learning Division of ACCS on a part-time basis after his retirement.
In doing so, the Ethics Commission relied on Advisory Opinions 2020-03 and 2019-11, both of which were limited to the facts presented and were discussed in the Fall 2020 issue. In Opinion 2020-03, the former executive director of the Auburn Research and Technology Foundation and of Auburn University’s Office of External Engagement & Support was allowed to work as a consultant for new clients of his business, provided he had not audited, regulated, or investigated those clients or their activities before retirement, for economic development purposes with Auburn University. Had he audited, investigated, or regulated those clients while in government service, he would have to wait two years before representing them before his former employer. The ethics law also requires that he not disclose any confidential information obtained during his employment. (See “Ethically Speaking: The Use of Confidential Information,” CLAS School Leader, Winter 2021.)
The revolving door was also “cracked open” in Advisory Opinion 2019-11 where a City of Montgomery employee, who retired under the previous retirement system used by the City of Montgomery, was rehired after Montgomery joined RSA. The City employee held a position of authority before retirement. In recognition that the two-year revolving door statute, as originally interpreted, caused problems for government agencies in their service to the public, the Ethics Commission allowed a retired employee of the City from one department to be later employed by a separate City department. The Ethics Commission said this did not violate the two-year revolving door statute.
As a matter of good public policy, the Ethics Commission will now allow a retired superintendent, central office employee, principal, or other administrator to work again for the board from which that educator retired. But, as noted above, there are restrictions. The retired educator cannot use confidential information learned during employment to the detriment of the board of education. The retired educator cannot solicit the position from the board of education, but instead should be approached by administrators of the board. Thus, a person of authority cannot retire, with a wink towards the board to rehire that individual. The retired individual should be an at-will contractor, without a written contract. This means that the retiree has no guarantee of a future income and the school system could terminate the relationship immediately. (For the first 90 days, if there is a contract, that contract still must be filed with the Ethics Commission, by the carve-out statute discussed above.) The retired employee should be paid hourly, not under a flat fee arrangement. The retired employee should comply with all RSA rules, including the limitations on income. The retired employee or the school district should also consider seeking a formal or informal opinion from the Ethics Commission.
