87.06

OPINION NO. 87-6

An opinion has been requested as to whether a Public Affairs Officer in the Department of Economic and Community Development (DECD) may submit and be paid for an article to be published in the newsletter of the Maryland Retail Merchants Association (the Association). Based on the situation as currently described to us, we advise the Requestor that this activity would not be barred by the provisions of the Public Ethics Law.

The Department of Economic and Community Development was established in 1970 and has more than 20 programs, organized primarily within two divisions, Economic Development and Housing and Community Development. The Economic Development Division focuses on economic development through expansion of existing businesses and industry and through promotional and other activities to develop new business and industry. Its basic goal is increasing jobs, citizen income and tax revenues. The Division of Housing and Community Development provides policy direction and oversees the agency's housing financing, commercial development and regional development programs. The Division also administers the State's historic preservation and cultural programs.

The Requestor is employed as a Public Affairs Officer in the Department's Division of Public Affairs. Her background is in writing, public affairs and public information. Her DECD job primarily involves performing similar functions for the Community Development Administration, the housing finance unit in the Division of Housing and Community Development. She is also responsible for the generation of two Departmental publications, The Directory of Maryland Manufacturers and the Maryland High-Tech Directory. Neither of these involve retail establishments.

The Requestor has been invited to provide an article, for compensation, to be published in the bi-monthly newsletter of the Maryland Retail Merchants Association, an organization of retail establishments throughout the State. The President of the Association is a former DECD employee. He had worked with the Requestor at the DECD and was familiar with her work and writing skills. He therefore asked her to do an article involving the interview of an Association member who is a small specialty retailer. He expects the article to be 500-1000 words in length, and estimates payment of $100 to $150 for this type of article depending on the amount of the time involved.

The Association President is also registered as the Association's legislative and executive branch lobbyist pursuant to the lobbying disclosure provisions of the Public Ethics Law (Article 40A, Title 5, Annotated Code of Maryland, The Ethics Law). He indicates that his primary dealings with executive branch agencies would be with the Commissioner of Consumer Credit, the Income Tax Division, the Department of Assessments and Taxation and the Consumer Affairs Division of the Attorney General's Office. This Association's interest in matters that affect business generally is what is likely to bring it into interaction with the Department. These types of matters tend to include general "business climate" issues that the Department would view as impacting on the ability of the State to keep and attract businesses, such as insurance, credit and workmen's compensation issues.

Both the Association President and the Requestor indicate that neither his nor his Association's activities involve any dealings with the Requestor in her public affairs duties with DECD. Except for her responsibilities for the two publications, her work is solely for the Community Development Administration (CDA). Apparently the Association has no housing activities and is not, as an association, involved with CDA matters. The Association's interactions with the Department are with the Secretary's office, the Research Division, and the Division of Business and Industrial Development (part of the Economic Development Division).

Section 3-103(a)(1)(i) of the Ethics Law prohibits an employee or official from being employed by or having an interest in an entity that contracts with or is under the authority of her agency. We conclude, as a preliminary matter, that the Requestor's activity does not involve employment with an entity that has contractual or authority relationships with her agency that would bring it within this strict prohibition. We have in the past viewed the provision of personal services (such as writing and consulting) to an entity as establishing an employment relationship. The Association, however, does not appear to have contractual or regulatory relationships with the Department. We recognize that individual members could be involved in contractual dealings with the business development and financing programs in the Department, and also that there are some writing activities that would result in more direct contacts with the members. However, we do not believe that this particular employment relationship with the Association must be viewed as employment with any of its individual members. Nor do we believe that the Association's status as a lobbyist would bring this employment within §3-103(a)(1).1

The question here is thus whether the more generally applicable impairment or prestige provisions of §3-103(a)(1)(ii) or §3-104 would apply to bar this free lance writing type of relationship. Application of these provisions is discussed at length, with a review of prior Opinions, in our Opinion No. 86-14. The summary of prior Opinions there reflects the general approach to §3-103(a)(1)(ii) 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 #032; that it was out-of-State or in a different geographic jurisdiction than the employee's agency 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 the 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, 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 relationship; and

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

The Requestor's generation of an article for the Association's newsletter as described to us would not, under these criteria, appear to come within the prohibition of either of these sections. It does not involve the subject matter of her State duties, nor is it an activity she would be expected to do as part of her State job. Moreover, the Association's interaction with the Department does not involve her unit of the agency or the CDA, the major program with which she works. Also, though the invitation came about as a result of the Association President's personal knowledge of the Requestor and her work through his past agency employment, the opportunity is not one that came about through a referral or official activity, or that otherwise flowed directly and immediately from her DECD position.

We therefore advise the Requestor that the particular undertaking that she has presented would not be barred by the outside employment or prestige provisions of the Ethics Law (§3-103(a)(1) and 3-104, respectively). Nor would future infrequent activities of this kind be prohibited, provided she keeps in mind certain constraints. A different conclusion, for example, could be reached if she were to become a regular and visible contributor for the newsletter so that she began to be viewed as having close ties with the Association. Also, it is not clear that the same result would attach if her compensation were to be increased to a more significant amount, or if she were invited to work directly with those Association members involved with the Department's activities and programs.

Barbara M. Steckel, Chairman
   William J. Evans
   Reverend John Wesley Holland

Date: March 31, 1987

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1 Section 1-201(e) of the Law defines "doing business" to include being a registrant. Section 3-103(a)(1), however, does not use the term "doing business with" (as this term is primarily a financial disclosure concept). In our view, the fact that the Association is registered and therefore "does business" for purposes of the §1-201(e) definition does not in this situation bring it within the contractual and authority concepts of §3-103(a)(1).