84.33

OPINION NO. 84-33

An opinion has been requested by the Secretary of Transportation concerning whether the Department of Transportation (DOT or the Department) may enter into a contract with a former Secretary. The individual served as Secretary of DOT until June 1984. Prior to leaving the Department, the former Secretary had instituted a Management Improvement Program for the Motor Vehicle Administration (MVA), one of the Department's major operating administrations. The MVA is charged with implementing the State's vehicle laws, including vehicle titling and registration and driver licensing programs. Many of its programs involve public service functions, and the direction of the improvement program begun by the former Secretary was to improve the agency's responsiveness to public needs. The program was not completed when the former Secretary terminated his State employment.

The first phase of the three-phase program involved realignment of the MVA's functions and organizational structures, and has been completed and implemented. Phases II and III deal with an assessment of the agency's operating practices and an analysis of unit-manpower allocations. They particularly are designed to address the agency's paper transaction flow, its mechanisms for responding to public inquiries and the extent to which telecommunications concepts are or could be used by the MVA. These phases are apparently currently in the early stages of implementation. The Department indicates, however, that given certain mandated new programs (such as staggered registration), the only way the program can be implemented within the appropriate time frame is to use the services of the former Secretary to complete Phases II and III.

The Department therefore proposes a personal services contract with the former Secretary for the performance of up to twenty-five days of consultant services. The Department noted the former Secretary's involvement in the Management Improvement Program and his close familiarity with MVA's operating practices and program objectives. The former Secretary will perform defined tasks, working with regular MVA personnel, and prepare and submit a written report to the agency. The proposed contract is with the former Secretary as an individual, and not with any corporation or formally organized business entity. We are informed by Department representatives that the former Secretary has sold a private consulting business previously owned by him, and is not now affiliated with any private business.

The issue presented in this request is whether the proposed provision of services by the former Secretary to DOT would be barred by the post-employment prohibition of the Public Ethics Law. (Article 40A, Annotated Code of Maryland, the Ethics Law.) Under §3-103(b) of the Law a former official or employee "may not assist or represent another party 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 in several requests, but have never specifically addressed the question of whether an individual former employee may provide services, as an individual, to his agency as to general policy or program matters in which he may have been involved as an official or employee.

Section 3-103(b) specifically addresses situations where the assistance or representation involves "another party other than the State." In our view this language must be given some meaning, and we believe it reflects the legislative view that the Maryland post-employment bar should allow an agency in certain circumstances to procure personal services from former employees as to matters in which they may have been involved as employees. It is not a "revolving door" provision that forbids any contact with one's former agency. We do not wish to imply as a general matter that there would never be a situation where provision of services to a former agency would be barred by this provision. The bar could apply, for example, where there is an established intervening private business, where the situation involves a long term relationship that creates substantial and continuing economic benefits inconsistent with general State policy, or where the facts point clearly to use by the individual of a State position and access to information to generate future private work.

We do not believe, however, that the circumstances here, as described to us by DOT personnel (including the present Secretary), present a situation intended to be covered by §3-103(b). The former Secretary is providing personal services to the Department under circumstances very like an employment relationship. He is not affiliated with a private business, and this is not a matter, according to DOT representatives, that is amenable to the competitive procurement procedure. This is a one-time procurement that the Department indicates will not be extended. Moreover, the services deal with a general program in which the former Secretary was involved, but which the Department indicates are being procured here to meet specific time demands, and not as a result of contract or procurement plans contemplated when the individual was DOT Secretary.

Under all of these circumstances, we do not believe that the former Secretary's provision of services as set forth in this proposed contract would constitute assistance to or representation of "another party other than the State," as contemplated by §3-103(b). We wish to make clear that we do not comment on or in any way suggest our approval or disapproval of this approach from a general policy or management standpoint or as a matter of procurement practice or policy. We understand from the Department that this contract was approved through the Department of Budget and Fiscal Planning and other appropriate procurement channels prior to its ever being presented to this Commission for consideration. Our conclusion is based on the Department's assurances as to the development of this transaction and is limited solely to our determination that the direct provision of personal services to the State as set forth here does not involve services to or on behalf of another party as set forth in §3-103(b) of the Ethics Law.

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

Date: December 12, 1984