82.03

OPINION NO. 82-3

A request has been received concerning whether the Farm Supervisor for the 17th Century Plantation at St. Mary's City may bid as a private contractor on the 17th Century Inn now in the planning stages.

This request is presented by an employee of the St. Mary's City Commission (the Employee), which was established in 1966 to develop and manage historic St. Mary's City. The program is being developed in accordance with a master plan prepared in 1970, and has several projects, including a 17th Century Tobacco Plantation, the old State House, the Dove, a nature park, and the 17th Century Inn. The program is funded predominantly by State appropriated funds, with its capital construction activities coordinated by the Department of General Services (DGS) under Statewide construction procedures. The Plantation and Inn projects are both items included in the original master plan, with design, planning, and site decisions made substantially before the subject of this request became an employee at St. Mary's City.

The Employee is currently employed at the St. Mary's City Commission with the title of "Farm Supervisor." His actual work with St. Mary's City has been to be the construction manager for the 17th Century Plantation project. He has special expertise (developed partly through his State employment) in the design and construction of 17th century structures, especially the carpentry aspects. The Plantation project, which was built by the State without outside contractors, is now almost complete. The Employee indicates that, rather than remain as curator of the Plantation, he wants to continue to do construction-type work, and is interested in bidding, probably as a subcontractor, on work related to the proposed 17th Century Inn project. He states that he has not been involved in any substantial way in the planning for the Inn, and also states that the basic planning and decision-making of which he is aware is a matter of public record.

The Executive Director of the St. Mary's City Commission confirms that the Employee has not been involved in the Inn project. The basic planning and site selection, etc. was done at a higher management level and also well before his employment with the agency. The Director states that the architectural work on the Inn has been done by a private architect under a contract processed and executed by DGS through the State's bidding process. The St. Mary's City Commission has other employees, including specialists in 17th century architecture, who have been the primary contacts with DGS in the planning process for the Inn in the preliminary planning and design. He states that the Employee's only input may have been occasional and isolated technical advice regarding construction. Final decisions regarding how the Inn will be constructed and who the contractors will be is a DGS decision.

This request raises issues under §3-103(a) and (b) of the Public Ethics Law (Article 40A, §3-103(a) and (b), Annotated Code of Maryland, the Ethics Law). The first question is whether the Employee may properly participate in the Inn construction under §3-103(b). This section prohibits a former official or employee from assisting or representing another party other than the State 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. The St. Mary's City Commission appears to treat each of its projects separately. Thus we also view the Inn project as a "matter" under §3-103(b) of the Ethics Law. However, based on the facts provided to us by the Employee and the Executive Director, we do not believe that his participation in the Inn project has been sufficient enough to be "significant" participation as contemplated by §3-103(b). Thus we conclude that the Employee's participation in the Inn project as a former employee would not constitute violation of §3-103(b) of the Ethics Law.

The remaining question raised by this request is whether the Employee must leave the agency prior to submitting a bid on the Inn project. Section 3-103(a)(1)(i) of the Ethics Law prohibits an employee from having an interest in or being employed by an entity that has or is negotiating a contract with his agency. We view "negotiating" as including the act of seeking a contract through the competitive bidding process, as the submission of a bid constitutes the making of an offer that initiates the negotiation process. We also believe that the Employee's proposed contractual activities must be viewed as involving a relationship with an "entity" as contemplated by §3-103(a)(1)(i). Section 1-201(d) of the Ethics Law defines "business entity" to include any entity, regardless of form. We have consistently treated sole proprietorships and individual business endeavors as business entities. Thus the Employee would appear to have either an employment or interest relationship with a private bidding entity, whatever its form, and would therefore be prohibited by §3-103(a)(1)(i) from being simultaneously employed by the St. Mary's City Commission while bidding on an agency project.

We therefore advise the Employee that he may participate on the Inn project as a former State employee. He must, however, terminate his State employment prior to taking any action bringing him into contact with his agency in furtherance of his private interest in obtaining work on the Inn. He and his employers should also take great care to avoid any official involvement or activities on his part relating to the Inn project, and should also be aware of the provisions of §§3-104 and 3-107 of the Ethics Law. These sections prohibit, respectively, the intentional use of the prestige of one's office for one's own personal gain or that of another, and also the disclosure or use of confidential agency information for one's own economic benefit.

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

Date: January 12, 1982