86.24

OPINION NO. 86-24

An inquiry has been presented regarding whether a former architect (the Employee) in the Resident Life Department at the University of Maryland at College Park (UMCP) may participate for a private employer in Phase V of a seven-phase program with which he was involved while a University employee.

The request is presented by the Chancellor's Office at UMCP, and involves a program of the Department to renovate dormitory space on the campus. This program was developed in the mid-1970's in response to a need for substantial repair on pre-World War II dormitory buildings in the North Hill and South Hill areas of the campus. A comprehensive study was done of the problem in 1976, and it was recognized that complete renovation was required, given the age of the buildings and the serious inadequacy of basic functional facilities. In 1980 the Resident Life Department established a study group, including an administrator, a planner, and an architect (not at this point the subject of this request), and decided on a seven-phase program expected to take approximately 12 years to complete. More particularly, the phases are:

Phase I—New 400-bed facility and community center (Leonardtown), constructed in 1980-81, contractor—Dashiell (Salisbury, Maryland).

Phase II—Prototype renovation of Harford Hall, 1981-82, contractor—Dashiell.

Phase III—Renovation of 5 dormitories at South Hill and construction of a central utilities facility, 1982-84, contractor—Bank Building Corporation (St. Louis, Missouri).

Phase IV—Renovation of 5 additional dormitories, 1984-86, contractor—Triangle General (Severna Park, Maryland).

Phase V—Renovation of 2 dormitories at South Hill and 1 at North Hill, demolition of Annapolis Hall and construction of a new office and community center facility on the site, beginning now, contractor—Triangle General.

Phase VI and VII—Will include renovation of dormitories in North Hill and area and construction of a central utilities plant; planning for VI beginning now, but no determination yet as to what will be included.

All phases of the program have been constructed in what is described as a modified "design-build mode," as distinguished from the more standard construction process where an architect is contracted to do the design and generate detailed specifications, which become the bid documents for a construction contract. With the design-build approach there is only one bid process and one contract, which is generally based on general design descriptions (not detailed construction specifications). The contractor must demonstrate capability and be accountable for, construction engineering, architectural landscaping, interior and exterior design, and all disciplines required to complete design and construction of the renovation (or construction). University officials indicate that these projects are not pure "design-build" efforts, however, since significant design details are actually generated by the University.

The bidding document for this process is the Project Manual. According to the Director of Resident Life, the Manual may have 3 or 4 parts: 1) an administrative section that sets out the bidding procedures; 2) a section including a detailed description of the particular building and the contemplated renovation; and 3) a very detailed listing of materials needs by trade. A fourth section may be added if a particular phase has any additional project, such as a central utilities building. The original Project Manual for the UMCP renovation program was developed by the consultant who was part of the original Resident Life team, particularly in connection with the Phase II renovation prototype.

The Director indicates that developing the technique and methodology for redesigning from the existing double-loaded corridor to the apartment/suite configuration adopted in the program was the most difficult part of the program. This was done primarily in the prototype (Harford Hall) in Phase II. Apparently during the Harford Hall Phase the former Employee became a part of the team, but he actually was only minimally involved in developing the Project Manual, which became the bid specification document. This was primarily the consultant's job, and resulted in a detailed design description but not construction drawings. The Employee's primary job was to work with the contractor in execution of the project, which apparently required a significant amount of internal architectural work. According to the Director, he would also work with the consultant (in informal back-and-forth discussions) discussions) as to some of the detailed specifications, though the Director says that this happened only as to a limited number of specific items, such as detailed descriptions of the types of doors and hardware generally preferred by the University.

There was also an architectural assistant (the Assistant) in the program, who began as a student and has since graduated. As the program moved into Phases III and IV, the Director says that the division of labor became clearer, with the Employee working with the contractor in the construction aspect of one phase, while the Assistant did the planning and amendments to the Project Manual for the next phase. Though apparently there was some communication, since each phase reflected, to some extent, the experience gained in the prior phase, the Employee was less and less involved in actually supervising the Assistant. The Employee was responsible to sign-off on drawings and documents for the ongoing construction and the Assistant was reporting directly to the Director regarding planning for the next phase.

According to the Director, this was especially the case during 1984 through 1986, while Phase IV was being constructed. He says that the contractor for that Phase had teamed with an architectural firm that was not performing very well. During this period the Employee says that he worked even more substantially on the project from the University end and was ultimately instrumental in holding the project together. He indicates that he was at this time committed solely to Phase IV, and did not have any involvement with the Assistant's planning and drafting work on Phase V. In fact, the replacement for Annapolis Hall was designed from scratch by the Assistant. The bid documents for this phase were finalized in March 1986 and issued in the Maryland Register on March 27, 1986. The bid submission date was May 14 and negotiations were conducted with 3 bidders. The final award has not been made, but the selection of Triangle as the contractor was approved by the Board of Public Works at its July 23, 1986 meeting.

The Employee left the University on January 17, 1986 and began part-time employment with a local architectural firm, Probst-Mason, which at this point was not involved in the University's dorm renovation program. The bid process for Phase V of the program began in the Spring of 1986. The selected contractor for Phase V is the same as the Phase IV contractor, this time teamed with Probst-Mason. The individual who is President of Triangle General knew the Employee through his work on Phase IV and Probst-Mason is familiar with the Employee through its involvement with Phases I and II (an employee of the firm was the Maryland on-site representative for the North Carolina architectural firm involved in those Phases). Triangle General and Probst-Mason want the Employee to serve as a consultant to Probst-Mason on the Phase V effort; he assisted in preparation of the bid and was identified in the bid documents.

This request presents post-employment issues under §3-103(b) of the Public Ethics Law (Article 40A, §3-103(b), Annotated Code of Maryland, the Ethics Law).1 This provision prohibits a former employee from assisting or representing a party other than the State in any matter involving the State in which he participated significantly while a State employee. Though the Employee would be serving as a consultant to a sub-contractor, he would still be assisting a party other than the State in a contractual matter that clearly involves the State, and the transaction could therefore be subject to this provision. The Employee also was plainly involved significantly in Resident Life's dorm renovation program. The question in our view is thus whether the program is the "matter" or whether each individual phase is the "matter," and if the latter, whether the Employee has any significant participation in Phase V.

We have considered the post-employment provision on several occasions, and the identification of the "matter" has frequently been the central issue. In our Opinion No. 85-14, for example, we found that a general 5-year "integrator" qualifying contract action and the specific annual contracts executed under it were different matters. In Opinion No. 85-9, general expertise and management involvement in asbestos programs was found not to be significant participation in the specific asbestos survey contract action that came about after the individual left State employment. Also, an earlier Opinion, No. 82-3, involved a series of projects that were a part of a general program of the St. Mary's City Commission. In that situation the employee had been very involved in some projects, but had very limited and technical involvement as to a particular project at issue, and was advised that he could bid as a subcontractor on that project after termination of his State employment.2

It is our opinion that the situation presented here is very like the one addressed in Opinion No. 82-3. The individual phases here have been separate procurement matters growing out of a long range 12-year renovation program. In this sense we think they can each be viewed as a separate matter, even though each phase builds to some extent on prior phases. We recognize that the basic technique being applied in each succeeding renovation was developed early in the prototype effort at Harford Hall, and that there is some continuity of relationships here between Phases IV and V. We do not believe, however, that these facts require a conclusion that all of the phases, at least as they involve renovation, are the same matter.

In our view, the "matter" at issue here, for purposes of §3-103(b), is the Phase V contract between the University and Triangle General/Probst-Mason. Based on the information provided by the Resident Life Director and the former Employee, we do not think that the Employee's participation in this matter should be characterized as "significant" as contemplated by §3-103(b). According to the Director the Employee was involved in Phase IV while the Assistant was preparing the bid materials for Phase V. This preparation involved about 1-1/2 years of full-time effort, and the Employee's only involvement was occasional technical discussions with the Assistant as a fellow professional in a small office. The Assistant has indicated that as the Employee was in the field so much in connection with Phase IV, even this type of professional discussion was limited to a few times a month. In our view, this was not significant participation. Nor do we believe that the Employee's involvement in preparing the Project Manual for the prototype renovation in Phase II would be viewed as significant participation in Phase V, especially since this activity is described as having been very limited at that stage also.

In summary, based on the information provided by the University and the Employee, we conclude that the individual phases of the UMCP dorm renovation program are separate "matters" for purposes of the post-employment provisions of §3-103(b) of the Ethics Law. Further, we conclude that neither the Employee's dealings with the original Project Manual nor his work on Phase V in particular could be viewed as significant participation for purposes of thus section. We therefore advise the Employee and the University that his involvement with Phase V on behalf of Probst-Mason would not be in violation of §3-103(b) of the Ethics Law.

*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.

——————

1 Based on the description by the Employee and Probst-Mason of his relationship with the entity, and their assurances regarding the timing of his affiliation with them and the Phase V bid process, there would apparently be no participation issues under the disqualification provision of §3-101 of the Law.

2 For a more complete review of our post-employment Opinions, see our Opinion No. 85-14.