84.06

OPINION NO. 84-6

An inquiry has been received concerning whether the Executive Director of the Inmate Grievance Commission (IGC) may serve as a consultant on an out-of-State project being bid on by an architectural firm that has substantial A/E contracts with his agency.

The Requestor is Executive Director of IGC, a unit within the Department of Public Safety and Correctional Services (DPSC). The IGC is charged with the responsibility of hearing grievances filed by inmates in the Maryland correctional facilities and Patuxent Institution. A grievance, which may be filed by any inmate, is considered in a three-stage process. It is reviewed on a preliminary basis by the Executive Director, who may dismiss it if he finds it to be wholly lacking in merit. Grievances not dismissed at this stage are heard by a panel consisting of at least three of the seven commissioners. The Executive Director may be involved at this stage in presenting materials and information to the Commission panel, though the Requestor indicates that he does not make recommendations as to disposition. Determinations that a grievance is meritorious are referred to the Secretary of DPSC for final decision. Negative decisions at this stage result in dismissal. At any stage where there is a dismissal, there is no administrative review; appeal is directly to the Circuit Court. Final meritorious decisions result in a written order, drafted by the Commission or by staff. Copies of these orders are sent to the inmate and his representative, as well as other official entities, including the Secretary.

This request involves Requestor's proposed outside employment as a consultant to VVKR, a Baltimore architectural-engineering (A/E) firm that is involved in the prison construction program in Maryland. According to personnel in the Department of General Services (DGS), capital construction (including prisons) involves three basic stages. First, a program is developed by the user agency (in this case DPSC) that defines the uses and functions of the building and its parts. This program may be developed in-house or through a contractor. Apparently VVKR has never contracted with the State to develop a DPSC program, though occasionally A/E firms do this. The second stage of the process is the selection of the A/E contractor. This is done by the Professional Services Selection Board (PSSB), and results from bids based on the program submitted by the user agency. According to DGS, the A/E does not change the program, either in the bid process or contract implementation. Usually the original program would be the basis of the entire project.

The A/E selection process includes participation by the user agency in the technical and price proposal team, and the presentation and recommendation to the PSSB is usually made by the user agency. The A/E contract is signed, however, only by the Secretary of DGS. The third stage of the process is award of a construction contract. This award is based on bids responding to specifications developed under the A/E contract, and also results in a contract signed by the builder and the DGS Secretary. The A/E contractor continues to be involved, performing a field inspection role until construction is complete. The user agency is not a party to either the A/E or construction contracts.

The proposed outside employer here, VVKR, is an A/E firm that has had and now has A/E contracts with the State to design prison facilities. It is the A/E for a major prison in Hagerstown, Maryland, and the Ethics Commission 1982 list of entities doing business with the State lists disbursements of approximately $1,019,823 from various construction fund accounts. The project on which the Requestor would be working for VVKR, however, involves the Lorton prison complex, a District of Columbia correctional facility located in Lorton, Virginia. The firm is bidding on a study contract with Fairfax County, Virginia. The project is apparently a multi-dimensional approach, under which the contractor is to include analysis of functional aspects of building use as well as architectural design.

The Requestor is an attorney and formerly a correctional officer in the Baltimore City Jail. He also served as manager of the inmate legal services office. He was approached by a former Commissioner of Corrections in DPSC, who is now employed with VVKR. The Requestor's work on the Lorton contract would be to provide input on the inmate discipline portion of the project. He would make on-site visits, do some additional research through correspondence, and provide a written report on the inmate discipline and grievance process in the facility. His duties would be limited solely to VVKR's Lorton contract.

This request raises potential outside employment issues under §3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law). The employing entity (VVKR) contracts with the State on a project involving the Requestor's agency, DPSC. The contract is with DGS, however, and based on our Opinion No. 83-30,1 there therefore appears to be no contractual relationship here between VVKR and DPSC. Nor does DPSC have any formal regulatory authority over the entity. We therefore conclude that there is no basis for applying the strict language of subsection 3-103(a)(1)(i), and that the only issue is thus whether the proposed employment with VVKR would be barred under the §3-103(a) (1)(ii) prohibition against any employment that would impair an individual's impartiality and independence of judgment.

We have considered the impairment provision on several occasions, generally viewing it as a complement to the more restrictive language of §3-103(a)(1)(i). In fact, to some extent, the impairment provision, as it was recommended by us to the Legislature, was intended to deal with situations like this one where a contractual relationship was technically with another agency, but was so related to the individual's duties that a potential for conflict of interest existed. Thus, in implementing this section, we have generally looked to the relationship of the individual's duties to his private employer, and have considered the principles regarding appearance of conflict set forth in §1-102 of the Ethics Law. We have not required the specific finding of an actual present conflict of interest in order for the impairment provision to bar employment (Opinion No. 81-28). In two recent requests, however, employment has been allowed based on the conclusion that the individual's particular official duties did not involve the outside employer.

In the situation being considered here, neither the Requestor nor his immediate agency employer, the IGC, are directly involved in the prison construction process, either in program development or A/E selection, though grievance decisions may occasionally touch upon the prison facility as a factor in the grievance. These decisions, however, according to the Requestor, are on a case-by-case basis, and the IGC does not function as a general advisor on institutional policy issues. The Requestor states that he has never had occasion to be involved with any facility, and would not be impacted in his IGC duties by a relationship with VVKR. This view is generally supported by the DPSC General Counsel, as well as by the DPSC Deputy Secretary, who is the Requestor's immediate supervisor.

Under all these circumstances, and given the limited nature of this employment relationship, we do not believe that the relationships between the Requestor's duties and his outside employer raise the type of impairment concerns intended to be addressed in §3-103(a)(1)(ii). We therefore advise the Requestor that the outside employment, as currently described to us, would not violate the Ethics Law.

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

Date: February 29, 1984

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1 10:22 Md. R. 2011 (October 28, 1983). Except as otherwise expressly cited to the Maryland Register, citations are to Ethics Commission Opinions published in COMAR Title 19A.