88.09

OPINION NO. 88-9

The Director of the Records Management Division in the Department of General Services (DGS) has requested an opinion as to whether he may serve on the advisory board of a private workshop which performs some of the same services as his State agency, and to which he may refer other State agencies for microfilming services. We advise the Requestor and his agency that this service is allowable, provided it is representation that is undertaken as part of his official DGS duties.

The Records Management Division is established pursuant to State Government Article, §§10-631—10-634, Annotated Code of Maryland. It is charged with the duty of developing programs and policies for the efficient management of the records of State departments and agencies. The Division operates the Central Record Center at Jessup, assists agencies in preparing records retention schedules, coordinates the State's forms management program, and offers cost reimbursable microfilm services to State agencies. The Division is also responsible to review purchase orders by other agencies for micrographics equipment.

The Records Management Division regulates other State agencies in the management and retention of their records. All agencies are required to have records retention schedules that define the types of records that they maintain, and that set forth schedules for how long the various classes of records will be retained at the agency, how long they will be stored at the records management storage center, and when they will ultimately be destroyed. Records are stored at the Records Center in Jessup in the interim between use and destruction. They continue to be available for use by the agency and the public during this time, subject to certain time and notice requirements.

Microfilming records is one aspect of managing them to be more accessible and take up less space. The decision to microfilm records is made by the agency that generates them, and may be part of a records retention schedule. Records may be film retained for a certain period of years. Microfilming services are purchased by agencies from a variety of vendors consistent with the State procurement process. The Division provides microfilming services to other State agencies on a cost reimbursable basis, consistent with its available equipment and personnel. For example, the Division does not have portable equipment and therefore turns down requests for microfilming of documents where the information must be copied at the facility that owns the records. Work may also be turned down if there is a backlog and the copying schedule is not acceptable to the purchaser.

In addition to private commercial vendors of microfilming services, State agencies may procure them from one of two sheltered workshops that are organized and accredited by the Division of Vocational Rehabilitation. These workshops, one operated as part of the Rehabilitation Center of Sinai Hospital (VSP Industries) and the other in Howard County, are operated in the interest of handicapped individuals. Like other sheltered workshops, they participate in a program established pursuant to the State Procurement Article, § 11-141, under which State agencies are directed to purchase a variety of goods and services from the handicapped. This section recognizes that though other sections of the procurement law create preferences for certain State agencies (such as State Use Industries and Blind Industries and Services of Maryland), if the services are not available from a State department or agency, the pricing and selection committee established in the provision is to determine whether and at what price they can be provided by an eligible sheltered workshop. State agencies requiring micrographing services would thus procure them subject to these provisions, after it has been determined that the Records Management Division cannot provide the services.

This request involves the invitation to the Requestor to serve on the Business Advisory Committee of VSP Industries, one of the two workshops that does micrographics work. It has done small jobs based on referrals from the Division, and markets directly to State agencies. It has recently completed a significant micrographing contract with the Motor Vehicle Administration. VSP also provides a variety of other services, for which it directly solicits business from State agencies. These include, for example, packaging services, electronics assembly, printing and janitorial services. The entity's Marketing Coordinator indicates that approximately 10 percent of its business is with State agencies, primarily in janitorial services under two contracts, one with the Motor Vehicle Administration and the other with DGS to provide janitorial services for the State Office Building at 300 West Preston Street in Baltimore.

The entity's Business Advisory Committee on which the Requestor would serve is a non-compensated group organized to provide the program with advice and recommendations in the areas of business and management. The Committee apparently is intended to provide a sounding board and information source on a broad range of marketing and general policy issues. For example, VSP's Marketing Director notes that the entity operates a training program for the handicapped as well as being a vendor, and wants advice from experts in a variety of fields as to the labor market and other aspects of the business community that would help VSP in designing its training program. The Requestor indicates that he understands his role would be to advise regarding the microfilming management aspects of the activity as this is his area of expertise.

The issue presented in this request is whether the Requestor's service with VSP would be barred by the Public Ethics Law, particularly by §3-104.1 (Article 40A, §3-104, Annotated Code of Maryland, the Ethics Law.) This section of the Law prohibits the use of prestige of office for one's own economic gain or that of another. The Requestor's State responsibilities bring him into regular contact with VSP, one of only two entities of its kind that does microfilming work. He indicates that he is known to the entity primarily through these dealings. Also, his interaction with other agencies involves him in a variety of decisions, such as whether to microfilm, whether his unit will handle an agency's microfilming needs, or whether a particular project would be referred to VSP or the other workshop that does microfilming work. Any of these decisions could impact on VSP. Provision of advisory services to the entity in his private capacity as to either micrographing activities or general business matters could thus raise significant issues regarding improper use of prestige as contemplated in §3-104 of the Law.

On the other hand, VSP is an entity organized to provide a social service consistent with the State policy, reinforced by statutes making it a priority vendor of supplies and services to State agencies. This procurement policy applies particularly to Requestor's agency as the State purchaser and provider of administrative services to other State agencies. In fact, agency personnel advise that legislative policy makers encourage the agency to refer and increase business to these types of programs, and it is regularly asked to report on the status of sales directed to the workshops. The agency thus considers the Requestor's service with the entity as a natural enhancement and outgrowth of his State job, and not a situation where he would be serving on the Board of a private competitor.

Under these circumstances we believe that the Requestor's service with VSP would be allowable, but only if he were to serve as a representative of his agency. We have in the past considered this type of situation and concluded that service with a private entity ex officio, as part of officially assigned State duties, does not result in the type of private employment intended to be addressed by the employment and other provisions of the Law. (See for example, our Opinions No. 87-12, No. 87-4, No. 86-32, and No. 80-5.) Given the interest of his agency in encouraging the referral of work to the sheltered workshops, we conclude that the Requestor's service on the VSP Business Advisory Committee would come within this approach, provided it meets the criteria that we have developed in these prior Opinions. This includes that the Requestor would serve on the assignment of and at the pleasure of his agency, he must reflect the DGS views in his activities with the Committee, and he may not receive any additional pay or remuneration in connection with the activity.

William J. Evans
   Rev. C. Anthony Muse
   Barbara M. Steckel

Date: March 29, 1988

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1 Section 3-103(a)(1) of the Law prohibits employment with an entity that contracts with or is regulated by an individual's agency, as well as any other employment that would impair his impartiality or independence of judgment. Though the relationship here could present employment issues, we do not believe it is necessary to resolve them here, as the request is resolved by adoption of the approach discussed in the text of the Opinion.