85.09

OPINION NO. 85-9

An inquiry has been presented by the Department of Health and Mental Hygiene (DHMH or the Department) concerning whether a former industrial hygienist at the Department may be a project director for his new employer on a contract in which his former agency is involved.

The subject of this request (the former Employee) served as an industrial hygienist in the Division of Environmental Disease Control in DHMH's Office of Environmental Programs. Prior to January 1985 his duties included reviewing the work of staff industrial hygienists, directing the Division's industrial hygiene consultation activities, participating in field studies, performing investigations and writing reports, and supervising the performance of industrial hygiene related activities on grants and contracts awarded to outside sources. On January 28, 1985 the position was upgraded and reclassified, based on "a very significant increase in the quantity and variety of projects undertaken by the Division," particularly in the development of programs and policies for controlling asbestos statewide.

The former Employee left his DHMH position on February 25, 1985 and began employment with a private consulting firm (the Firm) immediately upon leaving his State position. He works there as a senior industrial hygienist. He develops projects, supervises field technicians, and does technical survey work himself. He would be expected to be the Firm's project manager on contracts with the State and other entities relating to asbestos matters. He is not aware of any current contracts between the company and DHMH or the Department of General Services (DGS), and indicates he has not done any work for the company in connection with its preparation of a bid on a State asbestos survey contract. The Firm does not appear on the Ethics Commission list of entities doing business with the State.

This request arises from the fact that the Firm does anticipate bidding on a DGS contract to survey asbestos hazards in State buildings. The Division of Environmental Disease Control (the Division) is providing technical assistance and management expertise on the contract; Division staff have written the Request for Proposals (RFP), will assist in the selection of a contractor, and will provide technical oversight in its implementation. The study is being conducted pursuant to a gubernatorial directive requiring a survey of asbestos in State buildings. Its primary function is to collect data for use in a lawsuit filed by the Attorney General against asbestos manufacturers in September 1984. The program is budgeted in fiscal year 1986 for $4 million.

The Chief of the Division indicates that if he were still employed in the Division, the former Employee would be responsible for this project. She states, however, that DHMH involvement in the project as a contractual matter was just beginning to develop at the time that he left his Division position. The Division Chief does not believe that there were any rough drafts or other documentation developed prior to his departure. According to the Division Chief, the former Employee's only connection to this particular project is that a form he developed is being used in this study. She notes that the form was developed for another research project and it is not a significant part of this study. The former Employee states that he developed the form as part of an attempt to standardize survey forms generally, and did not work with it as a particular aspect of this specific procurement action.

According to the former Employee, he did participate in one very general discussion meeting set up by the Assistant Attorney General handling the litigation on February 20, 1985, after he had announced his employment with the Firm. He states that the meeting was a brainstorming session designed for the Attorney General's Office to get information from DHMH's technical staff about prior asbestos work. The Assistant Attorney General involved in the asbestos litigation confirms that at this point the discussion was very general. It was known that an outside contractor would be involved, and how much money was available in the budget, but no drafts or outlines of the RFP had been begun at the time of this first meeting. The former Employee was included to provide general information based on his past expertise and involvement with the Division's asbestos survey activities.

This request raises issues under the post-employment provisions of §3-103(b) of the Public Ethics Law (Article 40A, §3-103(b), Annotated Code of Maryland, the Ethics Law). This section bars a former official or employee from assisting or representing a party other than the State in a contract or other matter involving the State, if the person participated substantially in the matter as a State employee. The asbestos survey will result in a contract involving the State, and the former Employee's service as the Firm's project director on it would constitute assistance or representation of a party other than the State. In our view, the issue, then, is whether the asbestos survey contract is a matter in which he participated substantially as a State employee. Our prior advice regarding implementation of the post-employment provision has tended to focus on this same issue, concluding that §3-103(b) does not, as a general matter, prohibit affiliation by former employees with firms that have contractual relationships with their former agencies (Opinion No. 81-15).

More specifically, for example, we have prohibited work on a local consulting contract specifically implementing a grant for which the employee was responsible (Opinion No. 81-15); permitted a former employee to establish a firm to bid on a contract directly with his agency that was developed while he was an employee, but in which he participated only on some isolated technical issues (Opinion No. 82-3); and permitted service as a consultant on a contract that involved the general subject matter of an individual's State employment, but which was initiated after his termination (Opinion No. 82-17). In a request involving a former attorney involved in contract claims litigation, we were unable to provide specific guidance, since there was no defined issue and the relationship of the two particular contracts at issue was not clear (Opinion No. 83-12).

Apparently, one of the former Employee's forms was used in developing the survey plans in the RFP, and he was involved in one very preliminary factual discussion very early in the process. Also, as a DHMH expert in the area of asbestos, the former Employee had been involved in a general way with various aspects of the Department's and DGS' activities that preceded the lawsuit and the procurement action. We do not believe that these activities by the former Employee should be viewed as substantial participation in the contract for purposes of §3-103(b) of the Ethics Law. We believe that the former Employee's activities are more like those in our Opinions No. 82-3, where technical construction advice was found not to be substantial, and No. 82-17, where an individual's involvement in general matters relating to a contract was found not to be participation in specific issues relating to the particular post-employment project. All of these situations reflect a narrow approach to the application of the post-employment provision.

As to this particular situation, it appears to us that the significant Departmental efforts regarding this contract came about after the former Employee terminated his State employment. His connection with the project was peripheral and technical, and, in our view, not significant. We therefore advise him, based on all of the circumstances as described to us, that his participation in this proposal (and the contract, if the firm is successful) on behalf of his new employer would not result in a violation of the post-employment provision of §3-103(b).

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

Date: August 5, 1985