The State Ethics Commission has received a request for an opinion as to whether a former employee of the Department of State Planning (the Requestor) may assist a private consulting firm on a contract with a local entity funded by a grant in which she was involved as a State employee.
The Requestor is a former employee of the Department of State Planning. She was responsible for administration of the School Planning Assistance Program, through which grant funds were awarded to local boards of education to develop comprehensive plans for school facilities. Her request arises out of a grant for which she was responsible that was made approximately a year ago to a local board of education. She indicates that this grant was a specific grant to do a particular project, and that it was solely within her jurisdiction and responsibility.
Since leaving the Department of State Planning, the Requestor has become associated with a private consulting firm. The firm has been invited by a local board to submit a proposal on its contract to implement the grant. Though the firm is apparently large enough to do the contract without her services, its staff wishes to identify the Requestor in their proposal as participating in the effort as they believed use of her skills would have made them better able to perform under the contract. The proposal submission deadline was February 16, 1981. Though informally advised that a proposal without the Requestor would probably be allowable (with the possibility of adding her to the effort if the Ethics Commission found no conflict in her participation) the firm decided not to submit a proposal on the particular contract.
However, the firm is generally involved in substantive areas dealing with these types of grants and the Requestor believes that guidance is necessary in order for it to be prepared should future opportunities arise regarding grants for which she was responsible. She indicates that there were 13 grants involved in the program, all of which were made during a six-month period in the beginning half of 1980. Not all of these grants have been fully implemented, however, and the Requestor estimates that there are approximately 5 grants for which contractors have not been selected and in which her firm might be potentially involved. She believes that if the firm were contacted for any of these efforts the fact situation and issues would be identical to those raised in the request as originally presented. She states that, as a result of her particular skills in the subject area of these grants, her firm is interested in being involved in these efforts only if she is available to assist on them.
This request raises issues under §3-103(b) of the Maryland Public Ethics Law (Article 40A, §3-103(b), Annotated Code of Maryland, the Ethics Law), which prohibits a former official or employee from assisting or representing a party other than the State, for compensation, "in a case, contract, or other specific matter involving the State government if that matter is one in which he significantly participated as a State employee."1 This provision prohibits only assistance and representation by former employees. It does not, as a general matter, prohibit affiliation by former employees with firms that have contractual relationships with their former agencies. Thus, §3-103(b) would not appear to limit the activities of the firm itself in these situations if the Requestor does not participate in or assist it in any way in its preparation of a proposal or implementation of a contract.
However, the firm has indicated that it does not wish to undertake these contract efforts unless the Requestor is available to provide assistance. The question, then, is whether her participation in a particular contract comes under §3-103(b) as a specific matter involving the State in which she participated significantly as a State employee. We believe that it does. The Requestor was the manager of a program which required her significant and substantial involvement in particular grant awards made by a State agency to various local boards of education. Each grant was a specific grant for the single defined purpose of contracting for a study such as the one her firm would do. Given the specificity of the grant, the two matters (i.e., the grant and the contract) are near identical in substance. Moreover, any contractor with a local Board under a grant would be bound to operate within the terms and conditions of the State agency and according to policies and guidelines established by the grantor agency. A contract between her firm and a local board should thus be viewed as a matter involving the State in which the requestor participated as a Department of State Planning employee.
Further, we do not believe that the timing of these grants, as set forth by the Requestor, is a determining factor in these circumstances. The Requestor notes that these grants were made several months ago, all of them well before she had any thought of private association with this or any other potential contractor. She suggests in these circumstances that §3-103(b) should not apply, as the kind of self-dealing that the provision is to protect against would not have occurred.
§3-103(b), however, does not refer to matters based on the timing of when they occurred, but relies on whether the employee participated significantly in them. A major alternative post-employment approach to the provision adopted in Maryland is a prohibition of participation in any matter involving a former employee's agency, for a certain period of time after the termination of employment or the employee's participation in a program. We believe that the Maryland Legislature's adoption of §3-103(b) as written should be viewed as an intentional rejection of such a time-limited prohibition in favor of one that relies more on the character of a former employee's involvement in a matter. Participation thus would be prohibited even as to an action taken over a year ago.
We therefore conclude that the potential contract work proposed for the Requestor's firm, to the extent it constitutes implementation of grants awarded as a result of her activities with the School Planning Assistance Program, would be specific matters involving the State in which she participated significantly as a State employee. Her assistance and involvement in the firm's efforts, directly or indirectly, would thus in our opinion constitute a violation of §3-103(b) of the Public Ethics Law.
Herbert J. Belgrad, Chairman
Reverend John Wesley Holland
Barbara M. Steckel
Date: April 6, 1981
1 The Requestor, as a member of the faculty at the University of Maryland School of Social Work and Community Planning, is also currently a State employee. However, as her consulting work does not appear to relate in any way to her current employment, her request is being handled solely as a post-employment issue arising from her employment at State Planning.