86.23

OPINION NO. 86-23

An opinion has been requested as to whether an energy resource officer in the Maryland Energy Office (part of the Department of Natural Resources, DNR) may engage in private consulting for groups in other States involved in auto and truck recycling.

The Requestor works in the energy conservation program of the Maryland Energy Office. The energy conservation program was established pursuant to the federal National Energy Policy and Conservation Act, which mandated and funds the State Energy Conservation plan. Under this plan, the Energy Office sponsors a variety of programs directed at energy consumers in the residential, commercial, industrial, transportation and government areas. The Office is charged with the responsibility to identify and analyze the energy conservation requirements for the State and to develop and coordinate plans and policies for the management and conservation of State's energy resources. The Office is also responsible for allocation and distribution of oil and gas when there is an energy shortage and to coordinate energy related policies and activities among agencies in State and local government. The Office's activities include education and communications programs to disseminate informative materials to the general public in energy conservation. (Natural Resources Article, §11-102, Annotated Code of Maryland.) The program includes doing information and promotional work in the auto and truck recycling area as a means of conserving energy.

The Director of the Energy Office indicates that the agency has no regulatory authority in the recycling area, or any substantial grant authority. They have done some grant work in the past but federal dollars for this are decreasing; one grant (2-3 years ago) was to the Maryland recyclers association. (This industry seems to be regulated primarily by the Department of Transportation pursuant to Transportation Article, Title 56.) The Office's activities are primarily in the area of information and education, and include efforts in marketing and promotion of auto and truck recycling. Promoting the use of recycled auto and truck parts is an aspect of the waste management approach to conservation of energy resources. Technical assistance and promotional activities in auto and truck recycling represent one of several programs in the waste management part of the conservation plan. The Requestor is responsible for these waste management activities, as well as for procurement projects under the conservation plan, and for assisting in the management of the institutional buildings project.

The Requestor's position description lists several specific duties that reflect activities with agencies in other states, and also significant interaction with the recycling industry generally and Maryland auto and truck recyclers particularly. According to his position description the Requestor has contacts with those in and out of Maryland, including weekly contacts with the Maryland association and quarterly discussions with the national organization, the Automotive Dismantlers and Recyclers Association. His duties also include "providing technical assistance to public and private individuals and organizations outside Maryland in understanding hazardous waste regulations and starting recycling programs." The Requestor's information and public relations duties include giving speeches and lectures and otherwise participating in meetings of community, consumer and trade associations, and also preparing materials for distribution and articles for publication in magazines. According to the Requestor, he has been involved in legislative activity in providing information and technical materials to the Maryland Legislature. He has testified and provided background material. Also, the Energy Office may provide technical information to other states, but Maryland personnel have not gotten involved in taking policy positions as to legislation in other states.

The Requestor says that, in addition to his work with local Maryland and national auto and truck recyclers associations, generally there is a lot of contact and coordination with program offices in other states and with private recycling organizations in other states. In particular, requests for information and technical assistance had been received from auto and truck recycling organizations in two other states. Neither of the entities is registered to lobby in Maryland or appears to do other business in the State. The request was for information about the Maryland program, which apparently was provided to them by the Requestor as part of his official duties. The request also resulted in a proposed contractual arrangement between the Maryland Energy Office and at least one of these private entities. The contract called for provision of additional assistance regarding the hazardous waste aspects of the recycling process, along with general promotional and marketing assistance regarding auto and truck recycling. The Requestor, whose Energy Office duties include working with Maryland recyclers in interpreting and complying with hazardous waste regulations (issued by the Department of Health and Mental Hygiene), was identified as the agency's principal investigator under the contract.

Review of the proposed contract presented several issues—that it appeared to obligate the State to provide legal advice to a private entity regarding another State's law, that there were some inappropriate costs to be absorbed by the Energy Office, and that the hazardous waste area is a controversial one that could result in liability of the State to private litigation. Based on the staff time involved, and on the considerations regarding potential legal liability, the agency decided that the assistance requested by these entities in other states was not something that it should undertake in this type of contract, and that the Requestor could not be assigned to it as part of his official duties. The Requestor has been directly approached by these entities to provide these services on his own as a private consultant. He is a political science graduate who has developed most of his expertise in this field in connection with his employment in the Maryland Energy Office.

The question presented here involves application of the outside employment and use of prestige of office provisions in §§3-103(a)(1) and 3-104 of the Public Ethics Law (Article 40A, 3-103(a)(1) and 3-104, Annotated Code of Maryland, the Ethics Law). Section 3-103(a)(1)(i) prohibits an official or employee from being employed by or having a financial interest in an entity which is under his or his agency's authority or has contractual dealings with it. The entities involved in the Requestor's proposed activities are recycling associations in other states that do not do business in Maryland and are not regulated by the Energy office or DNR. Nor, apparently, do they contract with the Requestor's agency. It is therefore our view that the strict employment prohibition of §3-103(a)(1)(i) does not apply here. Section 3-103(a)(1)(ii), however, further bars any other employment that would impair the individual's impartiality or independence of judgment, and the prestige provision of §3-104 prohibits an official or employee from using the prestige of his office for his own personal gain or that of another. In our view these provisions do apply to the factual circumstances presented by the Requestor.

In fact, we believe that the issues presented here are basically the same as those recently considered in connection with the consulting work of an amusement ride safety inspector, which involved consulting activities covered by the impairment and prestige provision of the Law. (Opinion No. 86-14.) In that Opinion we set out our approach to the impairment provision of §3-103(a)(1)(ii) as intended to apply where there are no regulatory or contractual relationships, but where the private employment circumstances present concerns about the person's ability to carry out his State job impartially. Based on a review of several earlier Opinions on this provision, we summarized the factors to be considered in applying it as follows:

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

The §3-104 prestige provision has been viewed by us as applying to bar speaking, consulting and other private activities that flow directly and immediately from the person's State job. In Opinion No. 86-14 we summarized the considerations for applying this provision 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, contacts 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 relationships; and

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

This particular situation presents a different combination of circumstances than earlier Opinions, with some similarities and some clear differences. Nevertheless, weighing all of the circumstances here in view of the factors developed for considering §3-103(a)(1)(ii) and 3-104, we believe that this activity is not allowable under the Ethics Law. We recognize that the Requestor's agency does not have regulatory or significant contractual authority in the recycling area, and has specifically determined that this would not be part of his official duties. We are concerned, however, that the Requestor does have regular and continuing coordination duties that would involve counterpart energy agencies in other states and possible interaction with specific recycling and consumer entities in those jurisdictions. He also continues to deal with auto and truck recyclers and the Maryland and national auto and truck recyclers associations that can be expected to have dealings with comparable entities in these other states.1

More importantly, however, we believe that this situation is very like the one that we considered in our Opinion No. 81-44. In that Opinion the employee had taken a consulting job with a city referred to him by his supervisor for advice. Though there was some question as to whether the activity could have been done as part of his official duties, we advised as a general matter that

employees who take advantage of information and contacts developed directly in the course of their official duties, to establish private contractual relationships, violate the Ethics Law's prohibition against the use of one's office for one's own private gain.

The Requestor's potential for the private contract work grew so directly from his State activities that we believe it must be viewed as coming within this proscription. Also, we are concerned that some of the reasons that the agency considered in determining not to do this as an agency project (especially regarding the controversial nature of hazardous waste regulation) could raise issues regarding the Requestor's ability to undertake this activity without impact on his State duties as contemplated in §3-103(a)(1)(ii).

It is therefore our conclusion that the proposed relationship between the Requestor and these private associations arose so directly from his State duties and relates so closely to them that it is prohibited by the §3-104 prestige provision and raises serious questions under the impairment provisions of §3-103(a)(1)(ii). The Requestor is therefore advised not to undertake this activity.

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

Date: September 24, 1986

* Mr. Belgrad was a member and Chairman of the Commission when this request was considered and decided, but resigned prior to issuance of the formal Opinion.

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1 For a discussion of a similar situation see our Opinion No. 85-18.