We have received a request for definition of the scope of activities allowable by a former attorney (the Requestor) in the Department of Transportation (DOT) whose new law firm is engaged solely in government contract claims work.
The Requestor is a former Assistant Attorney General in DOT, whose duties related solely to serving as an advocate for the State in contract disputes. His assignments included claims involving heavy construction projects, including the Baltimore subway contract for the Laurens Street Station and Line. He defended the State in claims filed by a construction company that is the prime contractor for both the Laurens Station and also the Mondawmin Street Station and Line. The Requestor was also involved in claims actions involving the Hart-Miller Island site, defending the Maryland Port Administration (MPA) in several major claims filed by the primary contractor for construction of the main sand dike at Hart-Miller Island. According to his supervisor, DOT Chief Counsel, the Requestor's activities involved an advocacy role in particular claims disputes under particular contracts. The Requestor did, however, get involved in other activities to some extent relating to the Hart-Miller program. These activities included, in part, review of a contract and drafting a letter to a disappointed bidder.
The Requestor's new employer is a Washington, D. C. law firm that was recently established solely to do claims and disputes involving government contracts. One of the firm's clients is the company that was responsible for both the Lauren and Mondawmin projects, which has retained the firm to handle its claims under the Mondawmin contract. The Requestor indicates that each of these projects is treated as a totally different contract, even in the dispute and settlement phase, and states (and DOT Counsel agrees) that he was never involved in the Mondawmin project. Both the Requestor (in conversations subsequent to his request) and his firm, however, have indicated an intention that he will not work on claims involving the Mondawmin Station and Line contract, given his significant State involvement with the company in his State duties regarding the Laurens project claims. The Requestor has further stated his intention not to represent the Hart-Miller contractor or any of its subcontractors in prosecuting claims against the MPA (or the contractor that designed the Hart-Miller Island project and is administering the contract).
The Hart-Miller Island project, however, is a substantial undertaking that is to involve many contracts in addition to the original prime contractor. Some of these were instituted prior to the Requestor's departure (such as the interior dike contract and the unloading equipment and facilities contracts) and others are still to be developed. The Requestor believes it is likely that he would be approached to represent some of the contractors in claims against the MPA under these contracts, and has requested our opinion regarding his obligations under the post-employment provisions in §3-103(b) of the Public Ethics Law (Article 40A, §3-103(b), Annotated Code of Maryland, the Ethics Law).1 Section 3-103(b) prohibits a former employee of the State from assisting or representing parties 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."
We have considered this provision on several occasions, but have not specifically addressed issues involving attorney representation in litigation or quasi-judicial situations. We have generally concluded that §3-103(b) does not prohibit affiliation by former employees with firms that have contractual relationships with their former agencies (Opinion No. 81-15).2 More specifically, we have:
allowed employment on a general planning grant project, as distinguished from a former employee's State duties on a particular grant (Opinion No. 80-1); prohibited work on a local consulting contract specifically implementing a grant for which the employee was responsible (Opinion No. 81-15); permitted a former employee to establish a firm to bid on a contract directly with his agency that was developed while he was an employee, but in which he participated only on some isolated technical issues (Opinion No. 82-3); permitted service as a consultant on a contract that involved the general subject matter of an individual's State employment, but which was initiated after his termination (Opinion No. 82-17); and advised a former tax assessor that he could represent a new employer as to any tax assessment matters that did not relate to those in which he participated in any way (Opinion No. 82-24).
In applying §3-103(b) of the Law in these cases, we considered the concepts of "matter" and "participation" as they have been used and interpreted under §3-101 of the Ethics Law. In these cases we have generally followed the definitions applied under the Code of Ethics (predecessor to the Ethics Law). 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, specifically reading the language of §3-103(b) calling for "significant participation" in a "specific" matter, we have applied this 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 a key issue in Opinions under §3-103(b) is identification of the "matter" involved, this is sometimes difficult in the absence of specific facts as to an individual's past and proposed future activities. The Requestor here has identified two projects (Laurens and Mondawmin) involving the same contractor, and indicated that he will not be involved in them. One of them represents an actual pending fact situation, as the company has retained the Requestor's firm to represent it in other claims. He has also indicated he would not represent the prime contractor against whom he litigated Hart-Miller Island claims, though there are apparently no immediate situations involving his or his firm's representation of this entity.
The Requestor has also identified other agency contract actions in his inquiry where there do not appear to be any currently pending issues. Two of these contracts were in process while the Requestor was a DOT employee and he was involved in them. The third contract was not to be bid or executed until some time after termination of his State employment, though he was aware of it and the circumstances surrounding it. Though we are inclined to view these various contracts as separate matters (both from each other and the primary Hart-Miller contract in which he participated), and we recognize that the Requestor's major duties involved litigating claims (none of which had arisen under the three referenced contracts), we find it impossible to definitively assure the Requestor that he can engage in activities relating to these contracts in absence of specific facts regarding the proposed action.
This is so because we believe that application of our tentative conclusions and general principles developed in other post-employment cases could vary significantly depending on the relationship of a particular proposed private activity to particular actions taken by the Requestor as an employee. For example, his participation as a litigator in claims pertaining to the primary contract required his involvement in negotiations regarding a follow-on contract, to help the agency avoid claims flowing from the timing relationship of the two contracts. In this situation, his representation of the follow-on contractor in claims relating to the particular issues that he addressed as a State employee could come within the §3-103(b) prohibition even though his primary involvement was with the first contract.
This is just one example of how application of the statutory criteria of "significant participation" in a specific "matter" often requires an understanding of specific facts of a real situation. We are therefore able at this time to provide the Requestor only with the general guidelines and discussion set forth above. He should continue to keep in mind the various matters in which he participated as a State employee and avoid any representation or assistance regarding these matters for any party other than the State. If a specific situation arises that would involve his provision of services of any kind in connection with a matter related to those with which he was involved for the State, then he may request an opinion or advice as to whether his State activities regarding the matter constituted significant participation.
Herbert J. Belgrad, Chairman
Jervis S. Finney
Reverend John Wesley Holland
Betty B. Nelson
Barbara M. Steckel
Date: April 21, 1983
1 As the firm does not now represent and has never represented a party involved in a matter in which the Requestor worked, there would not appear to be an issue under the §3-101(a)(3) nonparticipation provisions.
2 Unless otherwise specifically referenced to the Maryland Register opinion citations are to Commission Opinions published in COMAR, Title 19A.