83.38

OPINION NO. 83-38

A request has been presented for an opinion as to whether a Deputy Director of the Drug Abuse Administration (DAA or the Administration) may have business relationships with an individual who through a private college has contractual dealings with the administration.

The DAA is a unit of the Department of Health and Mental Hygiene (DHMH) and was originally established in 1969. It is charged with responsibility for developing a State comprehensive drug abuse control plan and surveying and analyzing the needs of the State for prevention and control of drug abuse and for the treatment of drug abusers. The agency monitors all drug abuse treatment programs in the State and administers a grant program which provides funding for various treatment projects. It may fund programs through local departments as well as by direct grants to private non-profit projects. Administration awards for Fiscal Year 1983 exceeded $8.5 million.

The Requestor is the Deputy Director of DAA responsible for the operation of the Office of Grants and Administration. His duties and responsibilities include directing, administering and supervising all aspects of the Office's work, including responsibilities for State and federal grants, federal liaison activities, budget and fiscal planning, legal and other support services, interagency coordination (including liaison with the Governor's Advisory Council on Drug Abuse), and third party payment programs. The Requestor prepares and submits grant proposals and negotiates contracts with State and federal agencies and makes specific recommendations to the agency Director regarding funding of each program.

This request involves a business relationship between the Requestor and an individual (the Professor) who is a Professor in the School of Hygiene and Public Health at the Johns Hopkins University (Johns Hopkins or the University). The relationship began in 1978 with the incorporation by the two of a firm organized to conduct opinion polls and do market penetration surveys (the Corporation). At about the same time that this business was established, the DAA began to implement a statutorily mandated program for treatment of compulsive gamblers. (See Health-General Article, §19-801, et seq., Annotated Code of Maryland.) Following a competitive bidding process a contract was awarded to Johns Hopkins University to establish and operate a compulsive gambling treatment center; the Professor was named as principal investigator/director of the project. In his capacity as Deputy Director in charge of DAA grants and administration, the Requestor was significantly involved in the preliminary staff activities involving this contract, as well as its execution and implementation. During the four years that Johns Hopkins operated the project, he also participated in meetings, reviews, recommendations and other activities related to the on-going effort.1

The issue presented here is whether the Requestor's private business relationship with a person who is involved in a contract with his agency would give rise to violations under the Ethics Law. Taking into account all of the circumstances presented here, we conclude that it does not. We are informed, for example, that the Corporation's activities involve opinion polling not related to the DAA, DHMH, or the University's contractual relationship with the Administration. Also, the Corporation has apparently never contracted with or had any contractual negotiations with either the University, the Administration, or DHMH. As the entity with which the Requestor is affiliated is the Corporation, and not the Professor, or Johns Hopkins, we are unable to conclude that the relationship is barred by the Law's prohibition in §3-103(a)(1)(i) against holding any interest or employment in an entity under his or his agency's authority or having contractual dealings with his agency. In our view, the entity contracting with his agency is Johns Hopkins, not the Professor, or the Corporation.

Nor do we believe that the Requestor's affiliations with the Corporation raise issues under the inconsistent employment provisions of §3-103(a)(1)(ii) or the non-participation provisions of §3-103 of the Ethics Law. Though he apparently provided services to the Corporation that would result in an employment relationship, the firm's direction to political and other polling activities unrelated to his DAA duties would, in our view, tend to negate the likelihood of his official judgment being impaired by his activities with the Corporation as contemplated by §3-103(a)(1)(ii). Also, though the Requestor plainly participated in matters involving the Johns Hopkins compulsive gambling treatment center contract, there is no evidence that he, either alone or through the Corporation, had an interest in this matter, as set forth in §3-101(a). This section further lists several types of relationships with private entities (including owning a financial interest or being an officer or employee) that would require disqualification, but only if the private entity were "involved as a party" in the matter. We do not believe that the Professor's personal participation, as a University employee, in the Johns Hopkins/DAA project means that another corporation with which he and the Requestor are affiliated is a party in the matter.

Our general conclusion is therefore that the circumstances of the relationships presented here do not come within the types of conduct proscribed for officials and employees under the Ethics Law. We wish to clarify, of course, that our view is based strictly on the facts presented to us and set forth here. Also, our view relies on the absence of any indication that the Requestor took any action for the benefit of either the Corporation or the Professor personally (see §3-104 of the Law) or that he used any confidential official information to advance his own, the Corporation's or the Professor's economic aims (§3-107 of the Law), and also on the Requestor's assurances that he in fact took no such actions.

*Mr. Finney was a member of the Ethics Commission at the time this request was considered and decided, but resigned prior to issuance of the formal Opinion.

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

Date: November 29, 1983

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1 The project was recently re-bid and the contract awarded to another entity. We have proceeded with this request, however, even though this particular relationship no longer exists, in order to clarify application of the Public Ethics Law (Article 40A, Annotated Code of Maryland, the Ethics Law) to this type of situation. Also, the Requestor maintains his corporate affiliation with the Professor, whose University has many significant and on-going contractual and other dealings with DHMH.