86.32

OPINION NO. 86-32

The Department of Public Safety and Correctional Services (DPSC) has requested an opinion as to whether the affiliation of two employees with a private non-profit entity, SEARCH Group, Inc., is impacted by the Public Ethics Law (Article 40A, Annotated Code of Maryland, the Ethics Law), if the entity in coordination with another private party (Price-Waterhouse), contracts with DPSC.

SEARCH is a private organization that works with criminal justice entities within state governments. It was established in 1969 as a project of 5 states (one of which was Maryland) to determine the feasibility of using computer and telecommunications technology to work together with criminal history records collected by State law enforcement agencies. When the process was found to be feasible, a standing committee was established including representatives of each of the 50 states, to define procedures, set legal and technical standards, and establish administrative mechanisms. This loose organization continued until 1973 when the size and activity of the organization resulted in incorporation as a private not-for-profit corporation. About 90% of the entity's budget is from contracts and grants. The rest is from State dues.

The structure of the incorporated entity is that it includes members appointed by the governor of each state for a term consistent with the governor's term.In the past there have been three appointees possible from each state, though this has recently been reduced to one. Each state pays an annual dues of $3,000. The Board of Directors is elected by the membership and meets three times per year. The general membership meets once per year. The organization has a permanent full-time staff that, in addition to administering its activities, serves as a professional "think-tank" in the field of criminal justice information. The entity prepares national position papers and does research, plans and executes projects, and is involved in a legislative and lobbying effort on behalf of states at the national level.

SEARCH has standing committees in three major areas: law and policy, research and statistics, and systems and technology. It acts as a resource in criminal justice communities throughout the country, serving as a kind of clearinghouse that any criminal justice agency can draw upon. It publishes a newsletter, runs conferences involving issues of current interest to states, and lobbies on behalf of the states in this area at the national level. Though the organization has a professional staff, it may contract work to other entities, may coordinate with another private business (as is the case in the transaction at issue here), and it may hire consultants.

The Maryland members of SEARCH, both employees of DPSC, were appointed to serve as members of SEARCH by the Governor. One of them has been elected by the SEARCH membership to be on its Board of Directors. Both indicate that they view their SEARCH activity as part of their State responsibilities. Travel in connection with participation in SEARCH is funded either directly by the State or through SEARCH reimbursement to the State, and is approved through the State travel system. Meetings and other activities are attended on State time. One of the individuals is the Director of Data Processing for the Department. He is responsible for the management and direction of the agency's data processing activities. His office includes computer operations, systems development, and the agency's Data Center. His duties regarding the Department's Data Center specifically include contacts with similar data processing organizations of other states in connection with exchange of records and information between and among states.

The other Maryland member of SEARCH is the Department's Chief of Planning and Research. He reports directly to the Office of the Secretary and the general purpose of his position is to supervise the planning and research offices of DPSC. The planning activity includes the policy analysis group and procurement officer responsibilities for computerized needs and review of information systems. The research and statistics unit deals with monitoring and analysis of statistical and information needs of the agency's correctional services agencies. His job description calls for regular contact with other units in the Department and State government, as well as "federal agencies and others outside *the* Department in order to exchange information and coordinate efforts within the criminal justice system."

This request grew out of a contract action currently in process in the Department, involving a planned audit of the State's Criminal Justice Information System (CJIS). Based on a recommendation of the CJIS Advisory Board, $100,000 was included in the Department's budget to fund such an audit. The Request for Proposals (RFP) was begun by staff of the Criminal Justice Coordinating Council, but was shifted to the Office of the Secretary when that agency's staff was reduced. Since the Planning Chief's duties include serving as procurement officer for computerized information needs and reviews of information systems, he was assigned to be procurement officer.

Both of these individuals were significantly involved in drafting the RFP, which was published in early August, and conducted a pre-bid conference in mid-August. Four proposals were received, one a joint offer from SEARCH and Price-Waterhouse. All were considered by a proposal analysis team chaired by the Director of the Institute of Criminal Justice and Criminology at the University of Maryland. The SEARCH/Price-Waterhouse proposal received the required score from the evaluators, and was in fact the only one to do so. The evaluating team unanimously recommended that negotiations on the financial proposal be undertaken with the SEARCH/Price-Waterhouse team. At this point because of the SEARCH involvement it was arranged that neither of these employees would be directly involved in the contractual process. Given their job duties, however, they could both be expected to have official responsibilities to interact with representatives of the contractor in implementing the contract.

The initial question presented by this request is whether these individuals' relationships with SEARCH result in an employment relationship that would be prohibited by §3-103(a)(1) of the Ethics Law, should the proposed contract be executed between DPSC and the SEARCH/Price-Waterhouse team. Since this section prohibits employment with an entity that has contractual dealings with one's agency, this situation would appear to be covered, if they are viewed as employed by SEARCH for purposes of §3-103(a)(1). In reviewing this situation, however, it is our view that affiliation is part of the individuals' official duties, rather than a private relationship. Four of our prior Opinions that deal with this issue are No. 86-22, No. 85-26, No. 83-33, and No. 80-5. The first, No. 80-5, allowed a Maryland Port Authority employee to serve on a Seafarer's Board as his agency's representative, and basically set out the principles and criteria to be followed by employees in this type of situation. Opinions No. 85-26 and No. 83-33 both involved allowing individuals to serve as their agency's representative as part of a contractual relationship with a private entity.

Both of these individuals are appointed by the State to their SEARCH memberships. Neither would be able to continue with the entity if they were to leave their DPSC position. This would apparently also be true of the one individual who serves on SEARCH's Board of Directors. Even though he is elected by the membership, he and DPSC's Assistant Secretary indicate that he cleared his acceptance of the position with the Assistant Secretary and merely represents the State of Maryland in his activities on the board and as a regular member. Also the Board of Directors apparently functions here as a general program working group rather than as a unit to manage the business affairs of the entity. Moreover, both of these individuals participate in SEARCH on State time and receive no additional compensation for these activities. Travel expenses are according to State guidelines and approvals. Both have removed themselves from further action in the procurement process and avoid any activities that might suggest any preferential treatment for SEARCH.

Under all of these circumstances, we conclude that the service by these two employees can be viewed as part of their official State duties, and would therefore not be outside employment prohibited by §3-103(a). We wish to note, however, that our conclusion is based in part on the more programmatic involvement of these individuals both in their affiliation with SEARCH and in the substantive character of their State duties regarding SEARCH. It assumes that they continue not to be involved, in either role, in the business affairs of the entity and its activities as a private competitor with other private entities in the contractual activities of Maryland and other states. We also assume that neither individual receives any compensation from SEARCH either as a member or independent consultant.

Reverend John Wesley Holland
   Betty B. Nelson
   Barbara M. Steckel

Date: December 10, 1986