A Planner in the Regional Planning Council (the Requestor) has requested an opinion as to whether he may engage in outside employment providing data processing services to the Baltimore Office of the Equal Employment Opportunity Commission, a Federal agency (EEOC).
The Requestor is a Planner III within the Economic Research and Information Systems Division of the Regional Planning Council (RPC). His skills are in data processing and analysis; he indicates that his job involves creation of demographic and economic data estimates for internal RPC use, provision of socioeconomic data to the public upon request, and provision of technical assistance to local member jurisdictions' planning staffs and functional agencies.
The RPC is a planning agency covering Baltimore City and Anne Arundel, Baltimore, Carroll, Harford, and Howard Counties, and is described as "in effect a council of local governments with State participation." (Maryland Manual, 1981-1982, p. 273.) The RPC was established by Act of the Legislature and its authority and responsibilities are set forth in Article 78D, Annotated Code of Maryland. It is composed of 23 members representing the respective counties, several State agencies and four members appointed by the Governor.
The RPC responsibilities include preparation and adoption of a suggested general development plan, which may be adopted by any unit of government within the area; conducting research and studies; providing advice and recommended standards to units in the area; and developing recommended capital improvement methods. Any development in the area affecting more than one unit must be reviewed by the Council, though the unit agency or body responsible for the proposed development may proceed without RPC approval. The RPC appears not to be involved in regulatory or grant-making activity; it is assigned to the Department of State Planning for certain administrative matters. Basic responsibility for policy, direction, and operations remains with the membership of the Council. (Maryland Manual, 1981-1982, p. 273.)
The Requestor proposes to engage in outside employment providing data processing services to the Baltimore Area office of the EEOC on a contractual basis. The EEOC is a Federal agency responsible for enforcing the equal employment opportunity laws applying to private sector firms. It does not exercise any jurisdiction over State or local governmental agencies. The Requestor's efforts would be related to EEOC investigations regarding possible systematic discrimination, and would involve provision of data-processing services to manage and organize substantial employee records of private sector firms that are the subject of EEOC investigation.
The first issue presented here is whether the Requestor's proposed outside activity would constitute prohibited outside employment under §3-103(a)(1)(i) or (a)(1)(ii) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law). Section 3-103(a)(1)(i) prohibits an official or employee from being employed by an entity that is under the authority of or contracts with his agency. Section 3-103(a)(1)(ii) prohibits any other employment relationship that would impair the impartiality or independence of judgment of the official or employee. We do not believe that either of these provisions would apply to bar the outside activity contemplated by the Requestor. In this situation, it is difficult to envision how the employing entity, EEOC, could be either under the authority of or have a contractual relationship with RPC. This is so not only because of the Federal government enforcement function of the EEOC (as directed to the private sector), but also given the statutory mission of RPC. Nor, given the tangential relationship of the outside employer to Requestor's RPC job, do we believe that this work would be expected to impair his impartiality or independence of judgment.1
The other two issues presented here are participation questions arising out of §3-103(c) and 3-101 of the Law. Section 3-103(c) prohibits representational activities by State employees in matters before or involving any agency of the State, for a contingent fee. Though it would appear to be unlikely, the Requestor's data activities for EEOC could become part of a matter relating to a private party involving a State equal employment agency, thus raising issues under §3-103(c). It is not clear whether appearance as an expert witness regarding data compilation would constitute representation of a party for a contingent fee as contemplated by this section. However, the Requestor has indicated his intention to avoid such involvement with EEOC's use of his work product. Based on this representation we conclude that his proposed activity would not constitute a violation of §3-103(c) of the Ethics Law.
Section 3-101 of the Ethics Law is a disqualification provision, barring participation by State employees in matters in which they have an interest or where entities with which they are connected are involved as a party. This provision could come into play in this situation if a private entity whose employment records are the subject of the Requestor's private work somehow figured in a development plan, research project or other RPC activity. Depending on the facts, the situation could be one where his outside activities could be viewed as generating an interest in him in a matter involving the entity. Though this situation would not bar his outside employment as a general matter, he should be aware that he is required to disqualify himself under such circumstances pursuant to §3-101.
Herbert J. Belgrad, Chairman
Jervis S. Finney
Reverend John Wesley Holland
Barbara M. Steckel
Date: March 29, 1982
1 See our Opinion Nos. 81-45, 81-41 and 81-28 regarding the generally narrow application of this provision to situations raising clear and serious concerns regarding an official's ability to act impartially on his State job.