| Advisory opinion request regarding whether Leigh Anne Fontenot, a Hydraulics Engineer with the Department of Transportation and Development, can accept engineering work referred to her by Eric Conner. |
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Leigh Anne Fontenot is the Hydraulics Engineer for the Department of Transportation and Development (DOTD) for District 7, which includes the parishes of Calcasieu, Jefferson Davis, Beauregard, Allen and Cameron. Permit applications are submitted to DOTD for new developments, whether commercial or private, on state routes, including state highways, interstate feeder roads, and U.S. highways. First, the developments are reviewed by the Hydraulics Engineer and the Traffic Engineer. Then the District Administrator must approve the permit before it is issued by the Permits Specialist. As the Hydraulics Engineer, Ms. Fontenot is responsible for reviewing all permit applications for developments in District 7 and verifying the development will not negatively impact state roadways or property.
Eric Conner is a self-employed engineer that submits permit applications on behalf of property owners for projects such as commercial developments and small to medium sized subdivisions. Ms. Fontenot typically receives one to three permit applications from Mr. Conner per month, which constitutes approximately one-eighth of the permits she reviews. In addition to the small amount of state related work, Mr. Conner also designs metal buildings, the associated structural design, foundation, parking lot, and drainage for small developments off state routes.
When Mr. Conner is too busy to take on additional work, he would give the client Ms. Fontenot's name and contact information. She would perform the work directly for the client and be compensated directly by client. Additionally, Ms. Fontenot may be asked to perform Drainage Impact Analysis for developments that are designed by Mr. Conner. In this situation, she would act as a consultant engineer and bill Mr. Conner for her services and he would include her fee as a separate line item in the bill he submits to the client. Ms. Fontenot would perform all work outside of work hours, using her personal computer and programs, and she would not work on projects that require permits from DOTD.
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La. R.S. 42:1111C(2)(d) provides that no public servant and no legal entity in which she exercises control or owns an interest in excess of twenty-five percent, shall receive any thing of economic value for or in consideration of services rendered, or to be rendered, to or for any person during her public service unless such services are neither performed for nor compensated by any person from whom such public servant would be prohibited by R.S. 42:1115(A)(1) or (B) from receiving a gift.
La. R.S. 42:1115B provides that no public employee shall solicit or accept, directly or indirectly, anything of economic value as a gift or gratuity from any person or from any officer, director, agent, or employee of such person, if such public employee knows or reasonably should know that such person:
(1) Conducts operations or activities which are regulated by the public employee's agency.
(2) Has substantial economic interests which may be substantially affected by the performance or nonperformance of the public employee's official duty.
La. R.S. 42:1102(22)(a) defines "thing of economic value" to mean money or any other thing having economic value, except promotional items having no substantial resale value; pharmaceutical samples, medical devices, medical foods, and infant formulas in compliance with the Food, Drug, and Cosmetic Act, 21 U.S.C. 301 et seq., provided to a physician, health care professional, or appropriate public employee for the administration or dispensation to a patient at no cost to the patient; food, drink, or refreshments consumed by a public servant, including reasonable transportation and entertainment incidental thereto, while the personal guest of some person, and, with reference to legislators and employees in the legislative branch of state government only, reasonable transportation when organized primarily for educational or informational purposes, including food and drink incidental thereto, and includes but is not limited to:
(i) Any loan, except a bona fide loan made by a duly licensed lending institution at the normal rate of interest, any property interest, interest in a contract, merchandise, service, and any employment or other arrangement involving a right to compensation.
(ii) Any option to obtain a thing of economic value, irrespective of the conditions to the exercise of such option.
(iii) Any promise or undertaking for the present or future delivery or procurement of a thing of economic value.
(b) In the case of an option, promise, or undertaking, the time of receipt of the thing of economic value shall be deemed to be, respectively, the time the right to the option becomes fixed, regardless of the conditions to its exercise, and the time when the promise or undertaking is made, regardless of the conditions to its performance.
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Adopt the proposed advisory opinion.
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| Assigned Attorney: |
Haley Williams |
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