| Advisory opinion request by Kenneth Ripberger, owner of KR Services, regarding the sale and donation of "Off-the-Charts" (OTC) software while he serves as a college instructor at Delgado Community College. |
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Mr. Ripberger is the sole owner and creator of the OTC software, which provides a new design methodology for HVAC residential systems to satisfy ICC Code. He currently lists OTC online on websites. He is the owner of KR Services, which is the sole-source provider of this product. He personally creates every OTC e-license for purchasers, who may or may not provide their personal name. When the product is purchased online, payment is made to an online contract payment company. The contract payment company then pays Mr. Ripberger the arranged percentage. He will still provide ongoing technical consulting to the new owner if a complete acquisition of OTC occurs.
Mr. Ripberger is the Department Chair of the HVAC training program at Delgado Community College (Delgado). He has the decision making authority to make purchases from a limited group of HVAC product suppliers from whom Delgado must have an existing purchasing agreement. Mr. Ripberger is also required to assist the dean in supervision and evaluation of HVAC Department Faculty. He would like to offer Delgado copies of the OTC software to any college workstation free of charge for educational use only.
Mr. Ripberger intends on selling OTC directly to any entity outside of Delgado's state agency region in Louisiana and other states. He also intends on using a reseller who will deliver to him numbered purchase orders. He will receive payments from the reseller for the purchase orders. The reseller will withhold from Mr. Ripberger the identity of individuals purchasing OTC within Delgado's state agency region. The reseller may also contract with HVAC supply vendors with whom he is currently authorized to make Delgado purchases, third party software vendors. However, Mr. Ripberger will not allow the reseller to sell OTC to individuals since OTC usage is only of benefit to licensed commercial contractors.
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La. R.S. 42:1111C(2)(d) provides that no public servant and no legal entity in which the public servant 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 his 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. 1115A(1) or (B) from receiving a gift.
La. R.S. 42:1115A(1) provides that no public servant shall solicit or accept, directly or indirectly, any thing 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 servant knows or reasonably should know that such person has or is seeking to obtain contractual or other business or financial relationships with the public servant's agency.
La. R.S. 42:1115B provides that no public employee shall solicit or accept, directly or indirectly, any thing 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 servant knows or reasonably should know that such person: 1) conducts operations or activities which are regulated by the public employee's agency or 2) has substantial economic interests which may be substantially affect by the performance or nonperformance of the public employee's official duty.
La. R.S. 42:1117 provides that no public servant or other person shall give, pay, loan, transfer, or deliver or offer to give, pay, loan, transfer, or deliver, directly or indirectly, to any public servant or other person any thing of economic value which such public servant or other person would be prohibited from receiving by any provision of this Part.
La. R.S. 42:1123(30) provides that a public servant, a legal entity in which he has a controlling interest, or a member of his immediate family, from donating services, movable property, or funds to his agency. Nothing herein shall be construed to allow a public servant to make an appointment of a person which is otherwise prohibited by this Chapter.
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Adopt proposed advisory opinion.
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| Assigned Attorney: |
Brett Robinson |
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