The Ethics Commission has been requested to provide an advisory opinion as to whether employees of the Data Center, Department of Public Safety and Correctional Services (DPSC) may accept transportation and related expenses from a large data processing firm to attend a seminar sponsored by the company. This request raises issues under §3-106 of the Maryland Public Ethics Law (Article 40A, §3-106, Annotated Code of Maryland, the Ethics Law), which relates to solicitation and acceptance of gifts by State employees and officials.
The Requestor here is a manager in the Data Center of a large State department. He was invited to participate in a seminar covering "Component Technology Trends," "Large Systems Architecture" and "Operating Systems" at the Poughkeepsie, New York Education Center of a large corporation (the Corporation) that is a primary supplier of data processing equipment to his department. The expenses of the trip, including transportation and one night's lodging, were to be borne by the Corporation. The Requestor, based on informal advice from the Ethics Commission, decided not to participate in the seminar. The opinion request was continued, however, since invitations of this sort occur often, and formal Commission guidance was viewed as necessary by the Requestor.
Section 3-106(a)(1) of the Law prohibits employees from accepting gifts from any person who is doing or seeking to do business with his agency. Section 3-106(b) establishes certain exceptions to this general prohibition, allowing the acceptance, for example, of expenses of food, travel, etc. in return for the employee's participation in a panel or speaking engagement at a meeting sponsored by the donor. Sub-section 3-106(b)(4). This exception is not allowed, however, if the gift would tend to impair the employee's impartiality or independence of judgment; or, if the gift is of significant value, it would give the appearance of or would be viewed as designed to so influence the employee.
The Corporation is an entity doing business with the Requestor's agency; and the proffered transportation and lodging are gifts as contemplated by §1-201(o) of the Law. Gift is defined therein as "the transfer of anything of economic value regardless of form without adequate and lawful consideration." The Requestor was not invited to prepare a presentation, to participate as a panel member, or otherwise lead the seminar; he would be one of many general participants at the seminar. We believe that the quoted exception in subsection (b) must be viewed as involving more than just "audience" participation. This situation would thus not appear to come within the exception, and in our view acceptance is prohibited.
Moreover, the introductory provisions of subsection (b) are also relevant in situations such as this. The seminar invitations have been extended to data processing executives, rather than operations personnel; the seminar is to address trends in technology; participants are to be met by their "Account Representative"; and the seminar is being held at the "Marketing Support Center." All of these circumstances would seem to imply that the seminar is a part of the Corporation's marketing or sales program. It would therefore not be unreasonable to conclude that, whatever the actual effect on an employee's judgment, the intent is to influence his views in favor of the Corporation. The provisory language of subsection (b) would thus appear to prohibit acceptance of gifts of food or lodging, etc. in such situations.
We believe that the facts of this case reflect a relatively clear example of a situation where a private entity's marketing objectives compel the conclusion that the intention is to influence an official's views in favor of the entity. We recognize that there are many similar situations where a proposed gift of travel expenses is from a party not in any way involved with an official or employee or his agency, or where the gift would come clearly within §3-106(b)(4) or one of the other exceptions. Certainly, also, many cases will arise where none of the circumstances imply an intent or likelihood of influencing the impartiality or independent judgment of a State employee or official. In these situations such gifts may be accepted, provided (especially if travel is involved) that the proposed activity is consistent with relevant personnel and other regulations.
We recommend, however, that supervisors as well as officials and employees take great care when considering whether gifts of travel will be accepted, especially where the donor has business or regulatory relationships with the employing agency. In evaluating these situations the limitations on acceptance of gifts set forth in §3-106 of the Ethics Law should be read and applied in view of the purposes set forth in §1-102 that the public be assured of the independence and impartiality of public officials and that the conduct of the State's business not be subject to improper influence or even the appearance of improper influence.
Herbert J. Belgrad, Chairman
Jervis S. Finney
Reverend John Wesley Holland
Barbara M. Steckel
Date: March 10, 1981