86.18

OPINION NO. 86-18

An opinion has been requested as to whether and under what circumstances the Executive Director of the Maryland Interagency Committee on School Construction (IAC or the Committee) may do consulting in the school facility field with private architects or other entities. The Interagency Committee is established in the Education Article, §5-301 et seq., Annotated Code of Maryland, and has the responsibility for supervising school construction activities in the State. It includes representatives of the Department of Education (DOE), the Department of State Planning (DSP) and the Department of General Services (DGS), and is chaired by the State Superintendent of Schools. The agency also works closely with the Board of Public Works (BPW). The Requestor is the Executive Director, appointed by and reporting directly to the Committee through its Chairman. The agency functions administratively as part of the DOE.

Each school system in the State must submit to the IAC its capital improvement program for new construction and renovation of school facilities. A particular project would be presented several times for approval by the Committee, which is involved in all stages of the planning and construction process. The first, or planning, stage of the project is submitted with schematic drawings and given a functional evaluation and review. This stage of review does not involve any State funding, as planning activities are funded by the school districts. This part of the process, which includes hiring of architects and the development of detailed plans and specifications, must, however, be approved by the IAC (and BPW) in order for the project to be considered for funding.

The second stage of review involves the submission of design drawings and specifications as developed by the architect. All construction projects for capital improvements must be submitted by the school districts by December 7 in order to be eligible for funding during the next fiscal year. The IAC approves, defers or modifies the construction program for each county and develops a state-wide priority list with a funding request. This is submitted to and approved (sometimes with adjustments) by BPW. A bond bill reflecting the approved allocations is enacted by the General Assembly and the funds become available on July 1. Actual contracts are between the County School Board and the construction contractor, though IAC approval is required and the agency (primarily through its staff) continues to be involved in the construction monitoring and change order phases of the process.

The Requestor says that this process applies even where some of the funds are local, indicating that there is no set formula for the mix of State and county funding. According to the Requestor the IAC staff review is directed at evaluating such matters as enrollment projections, space needs, and site acquisition plans, and at determining facility priorities both within a particular county and among the various counties statewide. Interagency Committee personnel do technically and critically review the design drawings and there is a section in the agency's procedure guide dealing with the hiring of architects. The credentials of architects are not a part of the IAC's consideration, though the staff, including the Executive Director, are involved with architects in the monitoring process, and work closely with local school boards that select and contract with the architect.

According to the Requestor, his job duties are directed at the operational aspects of managing this program, and do not involve significant official interaction with counterparts in other states. His job description lists many general management and supervisory duties and substantial working relationships with entities and individuals at all levels and branches within State government. There is no defined job function, however, that directly calls for any interaction with other state governments. Apparently a few years ago, the Requestor went, as part of his official duties, to South Carolina to assist in a planning program, and on another occasion personnel from North Carolina came to Maryland. He states that these dealings with other states are infrequent and intermittent. The Requestor also indicates, however, that he participates in several professional associations, and attends their meetings and other activities as part of his State employment.

This request relates to the Requestor's interest in engaging in private consulting activities in the school facilities construction field. He states that he has in the past done some consulting jobs with other states or private entities. In two situations he served (or is serving) as a witness in litigation involving school construction allocation formulae. The Requestor has been with the Interagency Committee for 14 years. He came to the program just as he was completing a doctoral degree in educational administration. His Ph.D. dissertation was in facilities planning, and he says he has published several articles since finishing his degree. His practical work experience is primarily with the Maryland program, however, except for facility planning work done while he was teaching and completing his degree.

The Requestor indicates that school facility planning is not a very large field. He says that he expects to get business primarily informally through other people in the field that know of situations where his skills would be required. He indicates that this would include professionals and others that he meets or deals with at professional association meetings or in other contexts. He says he also pursues possible leads that show up in trade magazines or journals dealing with facility planning. He would plan to take jobs out of the State of Maryland or in other countries, and would not undertake any work with an architect involved in any Maryland project whether or not the project is funded by the State.

This request raises outside employment issues under §3-103(a) and possible prestige provisions under §3-104 of the Public Ethics Law (Article 40A, 3-103(a) and 3-104, Annotated Code of Maryland, the Ethics Law). Section 3-103(a) prohibits a person from being employed by or having an interest in an entity that is under his or his agency's authority or that has contractual dealings with his agency (subsection (a)(1)(i)), or from having any other employment that would impair his impartiality or independence of judgment (subsection (a)(1)(ii)). Section 3-104 bars the intentional use of the prestige of one's office for one's own economic gain or that of another. The architects involved in the school construction program apparently do not contract with the IAC. The Interagency Committee, however, does have significant and ongoing approval authority and control over the construction projects, and it is therefore our view that the architect, as a primary party to the transaction, would be under the Requestor's agency's authority for purposes of §3-103(a)(1)(i). A relationship with a firm working on a Maryland IAC approved project is thus barred by this section. If the Requestor proposed to engage in this activity, he could only do so if an exception were applied.

The Requestor's inquiry, however, is somewhat narrower in scope, as he has indicated that he would not anticipate undertaking any work with an architectural or other entity involved in any Maryland projects. The question, then, becomes whether the more generally applicable impairment or prestige provisions of §3-103(a)(1)(ii) and 3-104 would apply to bar consulting work as he proposes. Application of these provisions is discussed at length, with a review of prior Opinions, in our Opinion No. 86-14. In summarizing there the Opinions dealing with §3-103(a)(1)(ii), we defined the general approach of this provision as applying to situations where there are no contractual or regulatory dealings but where there are relationships between private and official duties that raise clear and serious concerns about a person's ability to hold the private employment and carry out State duties impartially. In particular, we identified the criteria for evaluating outside employment as:

1) that it was out-of-State or in a different geographic jurisdiction than the employee's agency or duties;

2) that the activity involved a subject matter or direction different from the employee's duties;

3) that it was not the type of undertaking that the person might be expected to do as part of State duties; and

4) that it did not involve individuals or matters with which the person would be interacting or impacting in his State job.

In Opinion No. 86-14 the bar of §3-104 was described as applying to activities that flow directly and immediately from one's official duties. Specifically, criteria for applying the prestige provisions of this section were summarized as involving:

1) how the employment was acquired or business under it is expected to be generated;

2) whether any part of the activity has been or would be expected to be on State time or as part of the person's State duties;

3) how the subject matter of the activity and the training and skill in it are related to State duties;

4) whether the outside activity involves efforts directly arising as a result of work performance, contracts or relationships that occur in connection with State responsibilities;

5) whether some particular aspect of the individual's State job would be impacted by the employment relationship; and

6) whether the outside employer would feel pressured or perceive an advantage in State dealings by hiring the State employee.

Applying these criteria to the situation presented by the Requestor, we do not believe that his proposed consulting work would be flatly prohibited by either of these provisions. Rather, we advise him that he may engage in consulting, but that this activity must be within certain constraints in order to be consistent with §3-103(a)(1)(ii) and 3-104 of the Law. Specifically, we believe that his activity is allowable, as long as it is outside the State of Maryland and does not involve any individuals or entities that are or expect to be involved in the Maryland School Construction Program. We also advise the Requestor to be careful to avoid any employment or consulting activities with any person or organization that has any declared or generally expressed intention to become involved in the Maryland School Construction Program. If such an intention were to be come evident after an employment relationship is established, then the affiliation must be discontinued immediately.

We recognize that the Requestor may acquire knowledge about jobs through individuals that he meets in connection with general professional activities, some of which he pursues as part of his official duties. We believe, however, that this situation is very similar to our Opinion No. 81-32, where we permitted the Administrator of State Documents to be paid for a seminar appearance that grew out of his work with the National Association of Secretaries of State. He had been affiliated with the Association by virtue of his State position, but the seminar activity did not relate directly to his official duties, and none of his State duties required or were related to his work with the National Association. Given the Requestor's current duties and his limited official dealings with other States' programs, we believe that the prestige provision of §3-104 would not be violated by his solicitation and acceptance of work as he describes his plans at this point.

Nor would there be a §3-104 problem if he included the fact of his State position as an ordinary part of a standard resume. He could not, however, accept or solicit private consulting work that results from a direct referral to him in his position as Executive Director of IAC. Also, if his official duties or his agency's direction change to include more coordination and collaboration with other states where he would be doing private work, of if his duties are altered to include provision of these kinds of services in other jurisdictions, then his situation would need to be re-evaluated.

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

Date: August 20, 1986