85.14

OPINION NO. 85-14

The former Director of the Power Plant Siting Program (PPSP) has requested an opinion as to whether he may serve as program manager on a contract involving an acid rain deposition study between his new employer and the PPSP.

The former Director is currently employed by Martin Marietta Environmental Systems (MMES), a private company that has an "integrator" contract with the Power Plant Siting Program. The PPSP is a unit within the Maryland Energy Administration, part of the Department of Natural Resources (DNR). The Power Plant Siting Program is established in the Natural Resources Article, Subtitle 3, Annotated Code of Maryland, It is defined in §3-301(d) as "a continuing research program for electric power plant site evaluation and related environmental land use considerations." The Program is funded by the Environmental Trust Fund and does environmental impact assessments as to existing power plants as well as to future plants at proposed sites. It also identifies, evaluates and acquires property that is held by the State as suitable for the construction and operation of power plants.

The PPSP also has a substantial research program addressing environmental and socio-economic aspects of power plant siting and operation. The agency has a large contract program, with a substantial amount of the work being done through "integrator" contractors. Under this contract process, each contract covers a general subject area and, according to agency personnel, results from a competitive bidding process. This competition is based on a qualifications statement that identifies a list of types of studies and technical projects that would be anticipated over the life of the agreement (five years). The bidders respond with a description of their technical qualifications and personnel cost quotations by category of job (such as program manager, senior scientist, etc.). The winning bidder signs a letter agreement with the PPSP contracting officer for the program area, after the award is approved by the Director of the agency and the Administrator of the Energy Administration.

The integrator contract does not include any money commitment, or any commitment by the agency to contract exclusively with that contractor. The agreement does, however, bind the contractor to the quoted rates (with a percentage escalation provision) for the five-year period of the agreement. The PPSP staff work closely with the integrator contractor personnel in implementing studies and defining future projects. The statements of work for the efforts to be included in annual contracts are drafted by the contractor's staff, based on general definition of the project by PPSP staff. The price of the contract is then negotiated and it is processed through the agency and the Energy Administration to the Department of Budget and Fiscal Planning (DBFP), and is finally approved by the Board of Public Works. The agency's budget analyst at the DBFP describes it as a sole source follow-on contract, and this is the basis on which the agency's annual integrator agreements were approved for fiscal year 1986. The former Director indicates that he participated in this process as a member of the ad hoc review panel that was involved in the selection of MMES as the integrator contractor for air and noise programs in 1983. He has also been involved in reviewing prior annual integrator agreements with the company, and worked with company staff on substantive matters, though much of the daily interaction with integrator personnel is with PPSP program staff.

According to the former Director, his employment opportunity with the company developed in a very short time frame following the death of an MMES senior scientist in late January. The former Director indicates that he met with MMES officials on February 15, accepted a position on February 25th, and terminated his PPSP employment in mid-March. The former Director and other agency personnel (including the Energy Administrator, the former Director's successor as PPSP Director, and the agency's program staff Director for air and noise) indicate that he notified the Energy Administrator of his dealings with MMES on February 15, and thereafter did not participate in any matters relating to the MMES integrator contract. According to agency staff, this would have had the effect of excluding him from participation in the contract for fiscal year 1986. Program personnel indicate that the former Director was involved in a meeting in early February discussing some very general ideas for the coming year's contract, but according to these individuals, nothing took shape as a particular project until later, after the former Director had removed himself from participation.

Agency staff describe the annual contract process as one which typically comes about very quickly near the end of the fiscal year. They say that the purpose is to wait until the legislative session is close enough to over so that budget amounts are stabilized. Also, they want to maintain maximum flexibility in defining the program details. During this particular year, in addition, a bill to control acid rain was introduced in the Maryland Senate on February 1. At a March 7 hearing the agency took the position that substantive control was premature at this time and that additional study of the sources of acid rain was necessary. The bill received an unfavorable report. The decision to include an acid rain study in the MMES contract was apparently at least in part a response to this legislative activity. The Energy Administrator indicates that the former Director provided him with copies of reports and various PPSP materials on acid rain, but did not participate in drafting the Department's testimony on the bill. The agency position on the bill was established at departmental levels within DNR.

The former Director is a physicist and applied mathematician who has had experience dealing with acid rain issues both in his PPSP position and prior to coming to State government. He is now heading up the MMES study section on acid rain, which involves mostly federal work. He states that he was not in any way involved, as a PPSP employee, in developing the statement of work on acid rain for the FY 1986 MMES contract. He says all of the plans for projects in this year's contracts were still at the staff level in very rough form at the time he withdrew from these activities. He did, however, begin work on this project, on behalf of MMES, almost immediately upon his taking on his current duties at the company. He worked with PPSP staff in developing the statement of work, which was submitted in mid-April and approved by the Board of Public Works at its recent June meeting.

This request as presented raises post-employment issues under §3-103(b) of the Public Ethics Law (Article 40A, §3-103(b), Annotated Code of Maryland, the Ethics Law). This provision bars any former official or employee from assisting or representing "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." The former Director has assisted or represented and proposes to assist or represent MMES, a party other than the State, in a contract involving the State. The question is whether this contract is one in which he participated significantly as a State official or employee.

We have considered this provision on several occasions, generally concluding that §3-103(b) does not prohibit affiliation by former employees with firms that have contractual relationships with their former agencies (Opinion No. 81-15). (See also our Opinions No. 82-17 and No. 85-9, for a more detailed discussion of our prior Opinions on this issue.) In the situation presented here the former Director participated in some way in the initial selection of MMES as the integrator contractor for air and noise programs. The annual contracts, however, are negotiated and executed as separate contractual actions. They are based on individual annual budget determinations and statements of work negotiated in connection with annual program determinations. The annual contracts are reviewed and processed by the agency, DBFP personnel, and the Board of Public Works as a single annual item. No funds are committed except in connection with each particular annual agreement. Under the circumstances, for purposes of §3-103(b), we believe that the "matter" on which the former Director proposes to assist MMES is the FY 1986 annual contract, and this is a separate matter from the original integrator contract.

We note further the information provided by PPSP and Energy Administration personnel that the former Director notified the Energy Administrator of his pending employment change, and of his intention not to participate in any way in the MMES annual contract. All of the personnel involved have advised that the former Director was scrupulously careful in meeting this intention, indicating that the annual MMES contract was not developed or defined in any specific way until after the former Director had left the agency and his successor was selected. According to these individuals, no materials had been developed or presented to the Director's office for review prior to his termination. Under all of these circumstances, we do not believe that the former Director participated substantially in the matter on which he is currently working for his private employer. We therefore advise him that his representation of MMES and participation on its behalf on the acid rain project would not be in violation of the post-employment prohibition of §3-103(b) of the Ethics Law.

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

Date: August 5, 1985