80.25

OPINION NO. 80-25

The Commission has been requested to provide advice as to whether a Program Director (the Requestor) in the Water Resources Administration may engage in outside employment designing water distribution systems and preparing water or sewage feasibility studies for private consultants under contract to developers.

The Requestor is the Program Director of the Waterway Construction Program in the Water Resources Administration (WRA), Department of Natural Resources. He manages and supervises others in a permitting/licensing program involving wetlands construction, stream crossings, sediment control, dam safety, and flood management. His program office does not issue or impact on permits for sewage treatment plants or water treatment plants. He was formerly a WRA Division Chief in the non-point source program.

Under a recent reorganization of the State's water programs, responsibility for issuing permits to sewage treatment plants was transferred from the Department of Natural Resources (DNR) to the Department of Health and Mental Hygiene (the Health Department or DHMH). Under this reorganization (Exec. Order 01.01.1980.04 and 1980 Session Laws Ch. 815), the State's entire sewage treatment program was transferred to DHMH. All authority relating to planning, awarding grants, setting funding priorities and issuing and enforcing sewage treatment plant permits is now vested in DHMH. Responsibility for managing the State's water supply program, including permitting water treatment plants, has been and continues to be lodged in DHMH.

The Waterway Construction Program, in which the Requestor is involved, was retained in the Department of Natural Resources. Also, the sediment control program, originally to be transferred to DHMH, was ultimately retained in DNR, with responsibility for it assigned to the Waterway Construction Program. The DNR has general implementation responsibility in this area, with, however, the bulk of the actual permit and plan approval being the responsibility of local governments. DNR apparently is not the actual approver of plans or the permit issuer except where the land involved is government property or where government property will be impacted by the sediment control plan. However, it is the agency responsible for developing criteria which must be met in sediment control plans; it also approves local programs and has some potential enforcement authority; and also certifies and conducts training programs that must be attended by employees of the developer who are to be involved in implementing the sediment control plan.

The Requestor engages in outside employment as a consultant to firms dealing with private builders or contractors. He indicates that he expects to be employed solely by such firms and not directly employed by any developer. He indicates that he does not solicit business, but has contacts with consulting firms who contract with him to complete specific design aspects of developmental work, involving primarily water distribution systems and possibly sewer line systems for hook-up to a main sewage system. Permits and approval for water distribution systems are required by local subdivisions and/or the Health Department. Sewage feeder lines, though subject to the approval of the local sub-division or the entity responsible for sewage treatment, are not a factor in the permitting process for sewage treatment plants (which in any case is now handled in the Health Department).

Though the Requestor will himself be working on matters no longer under the authority of his agency, he notes that his outside employer will have some responsibilities related to sediment control activities contemplated in connection with a project. He indicates that generally in these situations the consultant has full responsibility for the front-end work, that is, all of the design and preliminary development work, including land excavation planning as well as the water supply and sewage aspects on which he will be working. He indicates that this responsibility usually involves applying for and acquiring the permits connected with the project. The final development plan with the proper permits, etc, is then presented to the developer, who in turn hires sub-contractors to do the job.

Section 3-103(a) of the Law is the provision that deals directly with outside employment by State employees and officials.1 It prohibits an employee or official from being employed by or having an interest in any entity that is under the authority of or has contractual dealings with his agency. Thus, it would prohibit the Requestor's consulting activities if they involve employment by an entity subject to the authority of his agency.

The Requestor's outside employment is with a consulting firm, not with the actual developer of a given project. Thus, even though the consultant may be preparing documents that relate to sediment control activities of the Requestor's agency, the consultant apparently has no proprietary or ownership interest in the project nor would he appear to be the party ultimately responsible for implementing and complying with any approved sediment control plan. Thus, to the extent that any party could be viewed as under the authority of the DNR's sediment control program, it would be the owner/developer of the particular project, rather than the Requestor's consultant employer.

It should further be noted that the Requestor here is not to be involved in sediment control activities on behalf of the consultant who is his employer. This situation can therefore be distinguished from the situation in the Commission's Opinion No. 80-18, which also involved outside employment with a consultant rather than a developer. We held there that such employment constituted employment by an entity subject to the authority of the individual's agency, because the individual was actually drafting documents that would themselves be submitted to his agency for review. In this situation the Requestor indicates that he will not be involved in any aspect of the consultant's activities that will ultimately be within the substantive purview of his agency.

We thus believe that the relationship between the Requestor's outside activities and his agency responsibilities is too remote to be considered as within the proscription created by §3-103(a) of the Law. Under these circumstances he need not be viewed as employed by an entity subject to his agency's authority. However, in advising the Requestor that his particular activities would not violate the employment prohibitions of §3-103(a), we note that he should take extreme care to avoid being involved in any way in his employer's activities relating to sediment control. He should especially take care to avoid advising his outside employers or actually participating in preparation of applications or other background or documentation materials relating to the consultant's activities in the sediment control area. He should also avoid any direct employment (or activities that appear to result in such employment) with the owner/developer who has ultimate legal responsibility for compliance with the State's sediment control laws.

Herbert J. Belgrad, Chairman
   Jervis S. Finney
   Reverend John Wesley Holland
   Barbara M. Steckel

Date: November 20, 1980

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1 Other sections of the Law potentially involved here are 3-101 and 3-104. Section 3-101 would not appear to be of concern since it seems unlikely that matters involving the Requestor's private activities would come up in the context of the waterway construction program. With regard to §3-104, the Requestor indicates that the consultants with whom he deals are aware that he is a State employee, but that he does not solicit business or advertise his availability. Application of §3-104 would not appear to be warranted unless some intentional use of his State position is evidenced. In this situation, a finding under §3-104 based only on the fact that one's State employment is known would not appear to be warranted.