The Director of Port Promotion (the Director) of the Maryland Port Authority (MPA) has requested an opinion as to whether he may have outside employment writing articles about the Port of Baltimore for the Daily Record.

The Director indicates that his job involves developing public relations and promotional programs to market the facilities of the Port of Baltimore (the Port). He provides information to businesses and members of the public, manages an advertising program for the Port, prepares publications about the Port (including the monthly magazine, Port of Baltimore), and handles press releases and other news coverage for MPA activities. All public information about the Port or activities pertaining to it, according to the Director, is released in standard press releases issued by his office to all members of the press. He states that the Port actually gets little coverage from general circulation newspapers, as competition is tight for space in the business sections of these papers, and information about the Port is seldom viewed as appropriate to general news sections.

The Director has been offered the opportunity of employment with the Daily Record to provide articles to it on a more or less regular basis. The Daily Record is a newspaper of statewide circulation dealing primarily with business and legal information. The Director, who is a former newspaperman, indicates that he would provide the paper with finished professional copy dealing with information about the Port that is publicly available but not necessarily the subject of a news release. The materials provided to the Daily Record would include background information and analysis not normally included in a press release, and would be copy ready for the printer rather than simply a press release. Thus, according to both the Requestor and the MPA Administrator, the materials would reflect significant effort beyond what would be required in his State job or would be possible within the time constraints of his MPA duties.

The Director has already submitted and published three articles in the Daily Record, on a noncompensated basis. He wishes to continue this, but, given the amount of time involved, would only do so on a compensated basis. The Administrator agrees with this view, and indicates that he does not see a problem with this proposed activity. He confirms the Director's statement that this work would benefit the Port, providing it with expanded media coverage it would not otherwise receive. He would not anticipate problems with other newspapers, since the information is already available to them and not generally being used.

The MPA does contract with the Daily Record, in a very limited way, in that it uses the paper to advertise bid proposals for contracts over $25,000. This advertising space is purchased on a purchase order basis (or separate contract) for each advertisement. The MPA's contracting officer indicates that this business amounts to $1,200--$1,500 per year and that the agency does not do any other printing or promotional business with the paper. All of the promotional advertising for the Port is handled by the Director, who indicates that none of this advertising is placed in the Daily Record or any other local newspaper. Personnel in the procurement office of the Department of Transportation also indicate that it has no contracts with the Daily Record.

This request involves application of the outside employment prohibitions of §3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law). Section 3-103(a)(1)(i) of the Law prohibits outside employment with an entity that is under the authority of or contracts with an employee's State agency. The Daily Record appears not to be under MPA's (or DOT's) authority, but it has contractual dealings (albeit limited to intermittent purchase orders for advertising space) with the agency. These contractual relationships are intended to be addressed in §3-103(a)(1)(i) of the Law and, in our view, give rise to at least a technical application of that provision to the Director's situation. However, we believe that our outside employment exception criteria can be considered to overcome the bar to this employment otherwise created by §3-103(a)(1)(i). (COMAR 19A.02.01, 9:15 Md. R. 1517 (July 23, 1982).

These regulations became effective August 2, 1982, and were issued in implementation of exception authority set forth in §3-103(a)(1) of the Ethics Law. The content and approach of the exception criteria are set forth in some detail in our Opinion No. 82-40. Basically, they implement the statutory criteria that exception to the general prohibition be allowed "where such employment does not create a conflict of interest or appearance of conflict." The regulations list several circumstances where the relationship between an individual's State job and proposed outside activity would be so remote that a conflict of interest or appearance of conflict is unlikely even though a situation fits within the technical terms of §3-103(a)(1)(i). We have evaluated the Director's proposed submission of articles to the Daily Record in light of these exception criteria, and do not believe that his situation would raise issues under any of the provisions set forth in the regulations. We therefore conclude that the Requestor may be excepted from the prohibition of §3-103(a)(1)(i).

In evaluating this request, we have also considered whether the Director's affiliation with the Daily Record should be viewed as "inconsistent" employment under §3-103(a)(1)(ii). This section prohibits any employment that would impair an individual's impartiality or independence of judgment. We have generally viewed the provision as applying even where the technical authority or contractual relationships of §3-103(a)(1)(i) do not exist, but where there are relationships between official duties and the private entity that raise "clear and serious concerns" about the individual's ability to properly carry out his official duties. In evaluating application of subsection (a)(1)(ii) to the Director's request we note that the MPA Administrator believes that the affiliation with the Daily Record would provide benefits to the agency, and would also involve efforts not expected to be undertaken in the course of the Director's official duties.

We are also informed that the articles would be developed totally on the Director's private time, and that compiling and assembling information, as well as drafting and properly finishing the copy, would be done during hours not expected to be devoted to his duties as Director of Port Promotion. No State materials, services, etc. would be involved. Under these circumstances, and in view of the fact that MPA does not place its substantive advertising in the Daily Record, we do not believe that the Director's proposed submission of articles to the paper must be viewed as inconsistent employment under §3-103(a)(1)(ii) of the Ethics Law. We therefore advise the Director that he may undertake this employment without violation of §3-103(a), provided that his activities continue strictly within the framework of the circumstances described to us and set forth in this Opinion.

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

Date: September 22, 1982