84.07

OPINION NO. 84-7

An advisory opinion has been requested from the Executive Director of the Commission on Correctional Standards (the Commission) concerning whether he may serve as a consultant on an out-of-State project being bid on by a firm that contracts with the State on a project involving his agency.

The Requestor is the chief executive officer for the Commission on Correctional Standards. This Commission is responsible for establishing standards for State and local correctional facilities, including prisons, jails and work release units. The agency's standards cover eight different areas: security and control, safety (such as fire safety and emergency medical capabilities), food services, housing and sanitation, inmate rights, classification, hearings, and record-keeping. The Requestor describes the standards as "very basic," dealing with fundamental life, health, safety and constitutional issues. The Commission is responsible for auditing and inspecting each facility annually. Where a facility does not meet the standards, a compliance plan is established and monitored, or other correctional action must be taken.

According to the Requestor, the Commission has exercised no authority in the area of construction and planning of correctional facilities. He states that the standards do not deal with building plant types of matters, but with the conduct of activities within a facility. For example, the food service standards deal with approved menus, provision of medical and religious diets, and housekeeping plans, rather than construction aspects of the kitchens. As another example, the security standards deal with general policies, such as controls on the use of force by guards, rather than facility design matters such as perimeter security or locking devices. Nor, says the Requestor, has his agency gotten into the area of regulating space, defining required areas for certain uses, setting out requirements for guard stations, or establishing over-crowding standards, though he agrees that the authority exists for such standards.

The Requestor indicates that there are no State standards for prison design and construction, and that the State generally relies upon nationally established standards in this area. He also indicates that he and his agency are not generally involved in Maryland's prison construction process, either at the State or local level. According to him, prior to establishment of the Commission, the State's Jail Inspector approved plans for local correctional facilities. The Commission, however, was advised by the Attorney General's Office that it has no authority to do this, even though its enabling statute includes "physical plant" as a category for approved standards. Thus, the Requestor says that, while it is to be hoped that designers or program planners take the standards into account, there is no mechanism for involvement of the Commission or its staff in the correctional facility design and construction process. He states that he has not been involved in any situations dealing with the use of the standards in prison construction, and, specifically, has assured us that he has never been consulted either by a private contractor or consultant, or by individuals within the Department of Public Safety and Correctional Services, with regard to the State prison facility currently under construction in Hagerstown, Maryland (Roxbury Prison).

The Requestor is interested in engaging in 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 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 (which, as to prisons, would be DPSC) 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 Requestor's proposed outside employer, 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 the Roxbury Prison in Hagerstown, 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 has been approached by a former DPSC official (now employed with VVKR) to participate as a consultant on this project. His role would be to evaluate the adequacy of training programs at the Lorton facility. The Requestor, who has a Masters Degree in education, has served the Maryland Correctional Training Commission and was also a training officer with the Air Force. He would do an on-site evaluation and data review, and provide a written report to VVKR.

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). This section generally prohibits an official or employee from being employed with an entity that contracts with or is regulated by his agency (subsection (a)(1)(ii)), or from having any other employment that would impair his impartiality or independence of judgment (subsection (a)(1)(ii)). The employing entity here (VVKR) contracts with the State on a project involving the Requestor's agency. The contract is with DGS, however, and based on our Opinion No. 83-30,1 there therefore appears to be no contractual relationship between VVKR and DPSC. Nor does DPSC have any formal regulatory authority over the entity. The 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 looked to the relationship of the individual's duties to his private employer, and have also considered the principles regarding appearance of conflict set forth in §1-102 of the Ethics Law. We have not generally required the specific finding of an actual present conflict of interest (Opinion No. 81-28) in order to bar employment under this provision. However, in two recent requests, employment has been allowed based on the conclusion that the individual's particular official duties did not involve the outside employer. (Opinions No. 83-39 and No. 83-30.)

In this situation, neither the Requestor nor his immediate agency employer, the Correctional Standards Commission, appear to be directly involved in the prison construction process, either in program development or A/E selection. In fact, the Requestor indicates that his Commission's standards do not deal with physical plant aspects of facility construction that would be likely to raise direct issues in the prison design and construction process. Nor apparently has he himself, or his agency, been consulted or otherwise directly involved in the Roxbury project currently involving VVKR, or generally in other prison construction activities. Under these circumstances, it is our view that the Requestor's proposed employment with VVKR would not come within the impairment prohibition set forth in §3-103(a)(1)(ii) of the Ethics Law, as his duties do not involve the outside entity.

We wish, however, to make it clear that our conclusion is limited solely to the particular facts presented in this request, both as to the Requestor's State duties and his proposed work for VVKR. We are concerned that there seems to be authority in the Requestor's agency that could impact on VVKR, though this authority appears not to have been exercised. Though the Commission has exercised no direct responsibility for facility planning or design, or selection of an A/E contractor, the standards established by the Commission could be a significant factor in building design. Moreover, the Commission clearly has authority relating to the building designed by VVKR, and its standards, and inspection and compliance programs, could at some point be the basis of conflicts as to the adequacy of building design. Thus, given the potential for activity by the Requestor and his agency that could result in future impact on VVKR, and the entity's status as a major and visible contractor on DPSC projects, we are not convinced that a continuing relationship by the Requestor with the firm would be appropriate. We therefore advise him that any future involvement with VVKR would have to be reviewed by us in view of the circumstances existing at the time. Moreover, he should be aware, of course, that if his duties or his agency's activities change during the pendency of the employment approved here, then reconsideration may also be necessary.

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.