82.33

OPINION NO. 82-33

An advisory opinion has been requested as to whether an individual employed by the Department of General Services (DGS) may have secondary employment within State service with the Physical Plant Department of the University of Maryland.

This request is presented by an individual (the Employee) who is an Assistant Project Officer in the Office of Engineering and Construction, In-House Design Team, in DGS. It concerns the propriety under the Public Ethics Law (Article 40A, Annotated Code of Maryland) of his being employed at the University of Maryland while on annual leave from his DGS employment. The Department of General Services is established by Article 41, §231, Annotated Code of Maryland, and has general responsibility for such State services as engineering and construction of public buildings, facilities acquisition and management, and such central services as: purchasing, telecommunications, printing and publications, and inventory management.

The Employee works for the Division of Design and Approval in the Office of Engineering and Construction. This Division provides architectural, engineering and site planning services to State agencies on matters involving the design, construction, alteration, and repair of State and State-aided facilities. The Employee works on "in-house" projects, where a Division architect or engineer develops an initial design based on the needs expressed in a requesting agency's capital improvement program, and then draws up plans and specifications for directing the scope of the work. Following advertisement of the project and appointment of a construction contractor by the Board of Public Works, in-house staff conduct monthly progress meetings to ascertain that the work is on schedule and in accordance with contract documents.

The University of Maryland is an agency of State government. Thus DGS is, as a general matter, responsible for design and construction of capital facilities at the University. Major construction projects involving the University would therefore be handled by the Employee's Division. The University, however, does have authority to undertake renovations on its own, and occasionally employs engineers to assist on these projects. The Office of Engineering and Construction in DGS has review responsibility for evaluating the workmanship of such projects, and thus the performance of engineers providing these services to the University.

The Employee was aware of a maintenance backlog at the University and of some difficulty it had had in recruiting personnel. He was known to staff of the Physical Plant Department of the Baltimore Campus, through dealings that he had with the campus in the course of his official DGS duties. The Employee contacted the Senior Engineer in the Physical Plant Department, indicating his availability to provide engineering services to the University while on annual leave from his DGS job. He sought DGS approval for this secondary employment under personnel regulations regarding secondary employment within State service, but proceeded to do the work, with reimbursement held up pending permission from DGS and Ethics Commission action on this opinion request. His services included maintenance work involving air conditioning, ventilation, and space accommodation projects. DGS personnel have expressed some reservations about these activities, since an engineer's work on this type of project at the University is reviewable by staff members doing in-house work in the Division of Engineering and Construction.

The issue presented in this request is application of the employment provisions of §3-103(a)(1)(i) of the Ethics Law,1 which bars employment with an entity that is under the authority of or contracts with one's agency. The Employee's Division has authority to undertake construction at the University, and has review responsibilities as to the workmanship of work done by individuals directly for the University. The Division could thus impact on the payment by the University for services and also on whether particular individuals would receive additional work. Under these circumstances we are unwilling to conclude that the University, as another State agency, is not under the authority of DGS. <>/P1>

However, we believe that the circumstances and timing of this situation bring it within our application of §3-103(a) as interpreted in our Opinion No. 81-7. We concluded there that the term "entity" as used in §3-103(a) (now §3-103(a)(1)(i)) included only entities other than State agencies, and that secondary employment with another State agency was not employment prohibited by the section. (See also Opinion No. 82-32.) Thus, we conclude, and have so advised the Employee, that his secondary employment with the University did not violate §3-103(a), and that compensation for these services could be accepted by him. However, we wish to reiterate our remarks made to the Employee at the time this request was considered, that we do not wish our conclusion to be construed as an approval or disapproval of this type of activity, especially given the relationship between the University and the Employee's Division.2

Moreover, we wish to clarify that this advice relates to the particular facts of this request and the Law in effect at the time of its consideration. Section 3-103(a) of the Ethics Law was amended in 1981 (see footnote 1) to include a prohibition against "any other employment that would impair the official's or employee's impartiality and independence of judgment." (Section 3-103(a)(1)(ii). We do not in this Opinion make any determination as to whether dual employment with two State agencies that have a supervisory authority or contractual relationship could be viewed as "inconsistent" under this amended version of section 3-103(a).

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

Date: July 21, 1982

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1 Comparable to §3-103(a) of the Law which was in effect at the time this request was considered. The Law was amended, without change to the precise language of this prohibition, in Laws of 1981, Ch. 796, effective June 1, 1981.

2 The Employee should also be aware that the provisions of §3-101 of the Ethics Law require his disqualification from participation in any matters before DGS that involve another employer.