82.17

OPINION NO. 82-17

An opinion has been requested as to whether a former official of the Governor's Commission on Law Enforcement and the Administration of Justice (LEAJ) may participate as a consultant on a contract with the LEAJ that involves use and analysis of data and programs that he managed while an LEAJ employee.

This issue arises out of an LEAJ contract action for the procurement of consultant services for a classification study and a ten-year facilities plan. The procurement was undertaken pursuant to specific legislative mandate enacted in the 1980 Legislative Session, and was part of continuing efforts at many levels of State government to deal with prison population overcrowding in the State. The legislation appropriated funds for a study to be conducted under the management of the LEAJ, by contract with an independent consultant. LEAJ personnel indicate that neither it nor its staff were involved in the legislative efforts to mandate the study or to assign responsibility for it to the LEAJ, though the agency has, of course, been involved in various aspects of the issue as part of its overall responsibilities in the area of corrections.

Designed to address the problem of overcrowding in Maryland's prisons, the study's general purpose was to determine the level of security necessary in confining prisoners and the nature and extent of rehabilitation activities to be undertaken with regard to a particular system. The study was also to deal with projections and determinations as to the physical, educational, social and other demands on the correctional system both now and in the future. Using existing data and evaluating current information systems, the contractor was, as Task 1 of the effort, to develop recommendations for establishment of criteria and management of data to improve the prisoner classification system for Maryland. Task 2 of the study involved using these classification criteria to project prison population estimates over the next ten years and to develop a facilities plan and assessment of the effects of different sentencing on prison populations.

LEAJ staff indicate that the proposed contractor was selected as a result of a competitive process in which five submissions were received in response to a Request for Proposals (RFP) prepared and issued by the agency after enactment of the legislation. The proposed contractor in its materials identified as a consultant (to be used for 5 days in connection with Task 1) a former employee of the LEAJ (the Consultant), who is an expert in criminal justice information systems. At the LEAJ he served as Chief of the Statistical Analysis section, where he was responsible for developing and maintaining a "timely comprehensive plan for criminal and juvenile information and for statistical analysis development." He was thus intimately and regularly involved in the LEAJ's efforts regarding the correctional information system and in using, maintaining and analyzing the information and information systems that are the subject of the study. The Consultant terminated his LEAJ employment, however, in December 1979; he was not in any way involved in the legislative activity that resulted in the study mandate or in LEAJ's procurement process and selection of the proposed contractor.

The issue raised by this request is application of the post-employment prohibitions in §3-103(b) of the Maryland Public Ethics Law (Article 40A, §3-103(b), Annotated Code of Maryland, the Ethics Law). This section prohibits a former employee of a State agency from assisting or representing "another 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 an official or employee." The Consultant is a former employee of LEAJ and he would be assisting a party other than the State in a contract involving the State, apparently for compensation. The issue, then, is whether the matter is one in which he significantly participated as a State employee.

This request raises an issue previously addressed by the Commission regarding the post-employment provisions of the Maryland ethics program. The former employee was substantially involved in activities relating to the subject matter of the contract; he worked with the data and the data systems that are being used and evaluated in the study; had he not left LEAJ, he would have been involved in LEAJ's participation in the development of policies and procedures regarding the subject matter of the study. However, he does not appear to have been involved in any specific matters relating to the legislation and the procurement effort; he was plainly not involved in any way in this particular contract.

We have considered the concepts of "matter" and "participation" in connection with application of the disqualification provisions of §3-101 of the Ethics Law and have generally followed the definitions applied under the Code of Ethics (predecessor to the Ethics Law, see COMAR Title 19). Thus we have viewed the term "matter" to include "any proceeding, application, submission, request for ruling, or other determination, contract, claim, case or other such particular matter...." "Participation" has been read to include acting or failing to act in one's official capacity, "personally and substantially, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise." Opinion No. 80-17.

Also, following the language of §3-103(b) calling for "significant" participation in a "specific" matter, we have applied the prohibition where the official participation involved considerable responsibility and authority, and where there was near identity between the matters involved. Opinion No. 81-15. The prohibition was found not to apply where the former employee was only tangentially involved in a general grant program and his subsequent employment involved specific grants developed by an implementing grantee. Opinion No. 80-1.

Though there may be situations where a narrow reading of the post-employment provisions would allow post-government activities that could raise appearance problems, we believe that this application is consistent with the intent and spirit of the Ethics Law. We believe that this approach reflects the need to balance an individual employee's rights to seek employment outside the Government and the effect on the Government's ability to attract qualified personnel if post-employment rules are so restrictive that State service becomes unattractive and unusable in subsequent career plans. Further, the language of the provision would be viewed as compelling a narrow application despite potential appearance problems. In rejecting the time-limited "no appearance" approach to post-employment regulation, the Legislature appears to have mandated a narrower application to specific definable matters; in fact, the examples provided in the provision itself (the Law says "case, contract, or other specific matter") would reinforce the conclusion that application of the limitation is to come into play only where the private activities involve discrete, clearly defined matters in which the individual participated as a State employee.1

Applying this approach, we conclude that the "specific matter" here is the action on the specific contract mandated by the Legislature and the subject of this particular procurement action. In our view, this matter is distinguishable from the general studies and activities on which the Consultant worked as an LEAJ employee, even though we recognize that his contractual duties would involve working with and building upon a data base with which he was significantly involved in his State employment. We therefore conclude that the Consultant's participation in this contract as proposed would not constitute a violation of §3-103(b) of the Ethics Law.

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

Date: May 10, 1982

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1 See our Opinions No. 80-1 and 81-15 for a discussion of various post-employment provisions.