83.18

OPINION NO. 83-18

We have been asked for an advisory opinion as to whether the Human Resources Director (the Director) for the Maryland Port Administration (MPA) may engage in outside employment as a construction business development officer with a private construction management services firm.

The Director is an MPA employee responsible for the planning, development and direction of the agency's equal opportunity/affirmative action, training, contract compliance, minority business enterprise, and human relations programs. His job includes general resources planning within the agency, conducting needs analyses, and developing training and other employee development programs. He is also responsible for MPA's internal Equal Employment Opportunity (EEO) program. He is not involved in labor relations work and has not been involved in decisions about whether to use agency or contractual personnel for particular tasks. The Director, is, however, responsible for the "external" EEO program, which includes participation in contract negotiation and review to ensure a proposed contractor meets the requirements of the minority business enterprise program. The Director's office is also responsible for the EEO contract compliance program, directed at assuring that MPA contractors maintain compliance with EEO provisions in their contracts.

This request involves the Director's intention to become a part-time employee of Construction Management Services, Inc. (CMS), a new company whose focus is on providing a variety of services to small construction companies. The firm's owner describes its goals as providing management skills to small contractors to help them to be more sophisticated in their dealings with prime contractors and owners of construction projects. The firm intends to market its services throughout the mid-Atlantic region, and has a two-fold approach: it will provide actual "hands on" construction management services, and it will provide seminar-type training courses. The Director would be involved in the second activity. He would be responsible for developing training modules and actually conducting seminars. Unlike the "hands on" part of CMS approach, however, the training effort is not expected to involve interaction with particular companies. Rather, it would involve presentations that would be made to many individuals from entities all over the company's target region.

Construction Management Services does not now do business with MPA or its parent department, the Department of Transportation (DOT). Nor does it appear on the Ethics Commission print-out of entities doing business with the State. This, however, may be primarily a function of its newness, as the firm's owner indicates his expectation to contract with State agencies to do on-site construction management. These services involve primarily construction supervision and inspection responsibilities, acting as a site owner's representative in assuring that contractors live up to their construction obligations. The CMS owner indicates that his construction expertise is in projects such as highways, dams, and subways, and he would anticipate his firm's bidding on construction management jobs within DOT, though not with MPA. He states that he has done business with MPA as an individual, serving as a consultant managing the agency's Hart-Miller Island project. It was in connection with this project that the Director and the CMS owner met and originally worked together. The Director was working with contractors on minority business contract compliance and the CMS owner was the construction manager for the project. Construction Management Services was established after he completed his responsibilities with the Hart-Miller Island prime contract.

The Agency's Director of Administrative Services, the Director's immediate supervisor, indicates that he does not believe that there would be a problem, even from an appearance stand-point, with the Director's being affiliated with CMS. Though he realizes that potentially some of the personnel attending seminars developed by the Director could be employed by MPA contractors or otherwise involved with agency activities, he does not believe, given the Director's MPA duties and the proposed general approach of his CMS training duties, that this would raise conflict of interest issues.

Since this request involves outside employment, the primary issue is application of § 3-103(a) of the Public Ethics Law (Article 40A, § 3-103(a), Annotated Code of Maryland, the Ethics Law). This prohibition has two aspects. Section 3-103(a)(1)(i) is a restrictive provision, barring employment with any entity that is under an employee's authority or that of his agency, or that has or is negotiating a contract with his agency. Commission outside employment exception regulations (COMAR 19A.02.01) apply to this bar. Section 3-103(a)(1)(ii) further bars any other employment that would impair an employee's impartiality or independence of judgment.

CMS does not now have a contract with MPA, DOT or any other State agency, nor would it appear to be under the authority of either MPA or DOT. It would thus apparently not come within the strict prohibition of § 3-103(a)(1)(i), at this time. Thus, we believe the Director's employment with CMS would not, under current conditions, be barred by the strict prohibitions of § 3-103(a)(1)(i). The entity's owner, however, indicates that he anticipates dealing with the State, and, given his expertise, probably with DOT. The Director should thus be aware that § 3-103(a)(1)(i) would come into play if CMS either negotiates or enters into a contract with any component of DOT. Though exceptions established in this provision could apply, especially if CMS's relationship is with a DOT entity unrelated to the Director's official duties, whether this is so and how other provisions of the Law would apply would depend upon the particular facts of the firm's relationship to DOT, and would require Commission action based on the particular situation.

An additional question remains of whether this activity would be inconsistent employment under § 3-103(a)(1)(ii). We have generally interpreted this provision as applying where the other strict prohibitions of § 3-103(a)(1)(i) may not be involved, but where the relationship between private and official duties raises clear and serious questions about the employee's ability to carry out his State duties impartially and independently. We do not believe that the facts of this situation result in a sufficiently clear relationship between private and official duties to warrant application of this provision to the Director's CMS employment.1 We therefore conclude that the provisions of § 3-103(a) do not apply to absolutely bar this employment. The Director, however, should take care to avoid any situation where he advertises himself as an MPA official (see §3-104 of the Law), and also to avoid relationships with seminar participants that may be contractors with his agency, particularly with regard to issues that might involve his agency.

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

Date: June 27, 1983

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1 See our Opinions No. 82-49, No. 82-46, No. 82-37 and No. 82-21 regarding our interpretation of § 3-103(a)(1)(ii).