88.23

OPINION NO. 88-23

The Chief of Domestic Tourism in the Division of Tourist Development (Department of Economic and Employment) has requested an opinion regarding whether she may have private consulting jobs as an archeologist. Taking into account the functions of the Requestor's office and the limited likelihood that her job duties would involve any archeological activities or program, we advise her that the occasional work that she would undertake is not barred by the Public Ethics Law.

The Requestor is responsible for overseeing the domestic portion of the Office of Tourism Development. Her office develops State magazines, calendars and outdoor guides for promotional purposes, and manages the information centers in the State, as well as special promotional projects such as the Preakness, the Sand Castle Festival and Winterfest. She supervises the staff in promoting smaller seasonal events, and oversees the development of promotional materials such as buttons and bumper stickers. The position of domestic tourism also involves working with the advertising agency that contracts with the Division to produce advertising and promotional campaigns currently directed primarily at the Maryland market. These activities in part involve the promotion of historic sites.

The Requestor's professional experience and academic training are in history and archeology. Interest in history is viewed as a major attraction that brings people to Maryland, and the Requestor's academic and practical knowledge of history is part of what she brings to this job in particular. The Requestor indicates, however, and her supervisor (the Assistant Secretary for Business Development) confirms, that sites are not promoted as archeological sites. The Jefferson Patterson Park and Museum is the only archeological park in Maryland and the Requestor describes it as really more a nature preserve. Also, she indicates that in St. Mary's City there usually is some archeological work going on. In neither of these situations, however, is she involved in any of the archeological work, and in neither case is the site promoted or marketed by her office as an archeological site.

This request was presented as a result of a request that this employee received from a private company that she provide archeological research and consulting services to it. Prior to taking her current position with the State, the Requestor was for four years the archeologist for the City of Baltimore. In this position she had dealings with a local construction company in connection with some projects in Baltimore. Because they knew her from this past work, she was called by a representative of the company to do initial research and site analysis for them. The Requestor did not accept this project but would like to continue to do some archeology work if the opportunity arises. She says that likely prospective clients would be a person or an entity with a federal grant or other action that is subject to the requirements of § 106 of the federal Historic Preservation Act of 1966. This section provides that any person engaging in covered activities must consider the impact of the activity on archeological resources.

According to the Requestor 80% of the archeological work done in the United States is triggered by this section. A project would include general historical research, a property survey, excavation and analysis of test pits and, in very rare cases, a full scale excavation. At any stage in the process it is possible to determine that there would be no archeological impact. Reports are submitted to the Maryland Historic Trust, which considers whether the impact evaluation requirement has been met and makes a recommendation to the federal Advisory Council on Historic Preservation.

As is indicated, this type of archeological project is triggered by the existence of federal grant or contract funds. Some of the work, such as Corps of Engineers work, is done directly by the federal government. Certainly, however, a substantial amount of this activity is done by the State through activities such as highway construction where federal funds are spent by State agencies. There is, currently in the Maryland Geological Survey, a State Archeologist Office, which currently has 8 archeologists. Its Director indicates that the unit does its work primarily for the Department of Natural Resources (one of the State's major landholders), the Maryland Historical Trust (a major owner of historic properties), and the State Highway Administration (SHA). Both the State Archeologist and the SHA's Director of Planning and Preliminary Engineering indicate that the archeological work for the State is done by this staff supplemented by private consultants. The consultant work (about 50 percent of the total) is done under a retainer type agreement with a few large firms selected on a competitive bid.

The Requestor states that she has no contact with this process or any of the State's archeological activities in her State job. She says that she deals with the SHA solely because it is the source of the official highway map distributed by her office. She contacts the Historical Trust, which is a unit in the Department of Housing and Community Development, in a limited way to acquire information about historic sites, and to get calendar information regarding events that are promoting MHT's historic sites. The Assistant Secretary also indicates that the Requestor's work does not involve any dealings or affiliations with archeological work or contractors that might be involved in this for other State agencies. Also, the Requestor does not contemplate any regular or defined employment relationship with any firm that might be a State consultant, and does not anticipate marketing her services. She says that she only wants to be able to respond affirmatively to projects that come to her by virtue of the fact that she is known in the archeological community.

The Requestor's archeological consulting work would be viewed under the Public Ethics Law (Article 40A, Annotated Code of Maryland, the Ethics Law) as employment, either with a private sole proprietorship consulting entity or with a consultant that might employ her, or with a user person or agency that would employ her. The question for us is whether this employment would come within the Law's outside employment provisions (§3-103(a)), or the prestige or information provisions of §§3-104 and 3-107. Section 3-103(a) prohibits outside employment with an entity that is subject to the authority of or contracts with one's agency (subsection (a)(1)(i)). It further prohibits any other employment that would impair a person's impartiality or independence of judgment in carrying out their State job (subsection (a)(1)(ii)). Sections 3-104 and 3-107 prohibit employees from using the prestige of their office or confidential information obtained through their position for their own economic gain or that of another.

From the information provided by the State Archeologist, it would appear that most archeological work for the State is done by agencies other than the Department of Economic and Employment Development. Also, the Requestor has indicated that she would not in any case undertake any work for an entity that deals directly with DEED, and that given the State system for handling these matters, State agency work by her is unlikely. There would thus appear to be no likely application of the strict outside employment prohibition of subsection (a)(1)(i). The issue therefore would be whether the activity was in any other way related to the Requestor's agency duties so that the more general limitation of the impairment provision (subsection (a)(1)(ii)) or §§3-104 and 3-107 would come into play.

We have considered issues relating to private consulting or similar types of work by State employees in several prior requests. In particular, Opinion No. 86-14 evaluated application of these provisions to proposed private consulting work, and developed a list of criteria that might be applied in considering whether an activity would be allowable. In most of those situations, the work involved the same type of activity or skill involved in the State job. Except for a limited involvement with historic sites, that would not appear to be the case here, and we can see no basis for concluding that there would be any relationship between the Requestor's duties in domestic tourism and the type of short-term archeological research efforts that she would anticipate undertaking.

We therefore believe that the Requestor's proposed work, to the extent that it can be defined at this time, would not present issues under the impairment provision or the prestige or information provisions of § 3-104 and 3-107 of the Law. Her proposed work would therefore be allowable. She should, however, in considering possible projects, avoid any situation that would raise impairment issues or involve use of her State position. She should not, for example, accept work from a consultant involved with DEED, or serve as an expert on behalf of a litigant opposed to a State agency.

M. Peter Moser, Chairman
   Rev. C. Anthony Muse
   Barbara M. Steckel

Date: October 25, 1988