82.18

OPINION NO. 82-18

An opinion has been requested as to whether an employee of the Toll Facilities Administration (TFA) may engage in part-time secondary employment with an entity that has a contract with the Maryland Transportation Authority (the Authority).

This request is presented by an individual (the Employee) who is employed in the TFA, and has served as an electrical foreman and also temporarily as Chief Maintenance Officer. He works on the John F. Kennedy Highway (the Highway) and is responsible for a variety of maintenance activities on the Highway and various facilities associated with it. The Employee noted that occasionally his duties involve work at restaurant facilities on the Highway. For example, he might inspect equipment at the facility to insure it is properly maintained. Also, he may be at the facility to install new State equipment or in connection with the State's responsibilities for maintenance of the exterior of the building.

The Employee here has requested advice concerning outside part-time employment with a corporation that operates a restaurant on the Highway (the Corporation), pursuant to a contract between it and the Authority. The Employee indicates that his employment with the Corporation would involve maintenance of equipment and other general work. He states that he knew the manager of the facility through another person, and learned that the facility had trouble keeping maintenance personnel. He indicates that he might occasionally do work at the restaurant during his lunch time or immediately before or after work, because of the convenience of his being on the Highway.

This request involves application of the outside employment provisions of §3-103(a) of the Maryland Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law). 1 Subsection 3-103(a)(1)(i) prohibits any official or employee from being employed by any entity that has or is negotiating a contract with his agency, or which is directly subject to the authority of the particular employee. We believe that this provision acts to bar the part-time employment activities presented by the Employee, for two reasons.

First, the outside employer has a contract with the Authority. This agency is established in §4-201 of the Transportation Article, Annotated Code of Maryland, and has general supervision over Maryland transportation facilities projects, including the Kennedy Highway. This general supervision includes the financing, construction, operation, repair and maintenance of transportation facilities projects. The Secretary of the Department of Transportation (who is also chairman of the Authority) is responsible for providing the Authority with staff. TFA, the employee's direct employer, is another entity within the Department of Transportation that is assigned the responsibility of staffing and administering the toll facilities under the jurisdiction of the Authority. Under these circumstances, we believe that the Corporation-Authority contract regarding the restaurant is a contract with the Employee's agency as contemplated in §3-103(a)(1)(i) of the Ethics Law.

Second, the Employee has indicated that his responsibilities may include inspection of the Corporation's restaurant equipment to ensure that it is being properly maintained. This could be the same equipment on which he may work in his private capacity as the Corporation's maintenance officer. We believe that this situation brings the Employee within the Ethics Law proscription against employment with an entity that is subject to his official authority.

We therefore conclude that the outside employment proposed here by the Employee is prohibited by §3-103(a)(1)(i) of the Ethics Law.2

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

Date: May 10, 1982

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1 As amended, Ch. 796, Laws of 1981, effective June 1, 1981. Though additions were made to §3-103(a) in 1981, including a prohibition against any employment that would impair an individual's impartiality or independence of judgment, the substantive provisions cited and discussed here are the same as those in effect when this request was presented and considered, prior to June 1, 1981. Since this matter can be resolved without considering this additional provision, it is not being addressed here.

2 Since submission and consideration of this request the Ethics Law was amended to add regulatory exception authority to section 3-103(a). Regulations defining exception criteria are now being considered by the Commission. (See Notice of Proposed Action, 8:26 Md. R. 2122 (December 28, 1982) and 9:8 Md. R. 839-840 (April 16, 1982). However, given the impact of the Employee's official duties on his proposed outside employer, we do not believe that such regulations would overcome the bar established by § 3-103(a) in this case.