89.01

OPINION NO. 89-1

An advisory opinion has been requested from a Natural Resources Manager in the Tidewater Administration of the Department of Natural Resources regarding whether he may have a private consulting business that involves the same kinds of work that he does in his State job. We advise the Requestor that the private business would not be inconsistent with the outside employment provisions of the Public Ethics Law, as long as it is conducted consistently with criteria discussed in prior Opinions and set forth below.

The Requestor works in the Tidewater Administration's Fisheries Division. According to his supervisor in the Division's Office of Recreational/Commercial Fisheries and Special Projects, the unit is responsible for support projects that run across other program lines. For example, it does fisheries statistics work regarding commercial, recreational and seafood packing activities, that is used by other units in the Fisheries Division. The Office is also responsible for programs relating to fish health and disease, both in hatcheries and in fresh water streams. A third area of responsibility in the Office is the one where the Requestor works, and involves stream classification. This work deals with both analytical and practical aspects in three areas of fish development: water quality, physical habitat and fish passage.

An aquatic biologist with a specialty in stream improvement, the Requestor works in both the practical and theoretical aspects of stream classification and improvement. He has in the past been involved in the pilot phases of stream lining projects, and in this connection worked with agency contractors. These projects have recently been transferred to other units of the Department, however, and Requestor will be working in the Monitoring and Research Division on a variety of low technology projects. His duties tend to involve hands-on operational work at a stream site, though he may do some limited planning and design.

Requestor's duties involve work throughout the State on both public and private property, as the State is viewed as the owner of all water and fish in the State, even that on private property. According to the Requestor, he works as a natural resources manager, managing projects relating to recreational and commercial fisheries. He does surveys for management of recreational and commercial fish species and for classification of streams for biological purposes, and does some restoration of streams. The purpose of the survey is to recognize and classify different aquatic resources for the purpose of managing their usage and to develop and enhance different fish species.

This request arises from the Requestor's interest in pursuing a private sole proprietorship consulting practice that would involve environmental consulting on matters such as acid rain projects and in the areas of stream restoration, fisheries and aquatic biology. He says the business would be based in his home and pursued on his own time. He would no do any business in Maryland, and would market to industrial and business interests, as well as governmental entities in other states. He has not done any work yet, but envisions that his business would involve providing information and technical expertise to assist in improving or restoring a stream. His work would include an investigation of a situation and provision of a report on what could be done to correct a problem. He would not actually do the work but might put the client in contact with others who would do the work, and might monitor the conduct of the project.

Requestor indicates that he would expect to get clients through word of mouth and general reputation. He says that he has been in the field for many years (with the State) and through his attendance at various seminars, conferences, and meetings has developed contacts and a reputation in the field. According to the Requestor, his private work would not involve his State job or individuals or entities connected with his State job. He indicates that he would be in a position to control his clients and the jobs he would take to ensure that he would not be marketing to entities involved in his State program. He would not be in competition with the types of research companies that he has worked with in the State program and would not in any case undertake to recommend any of these entities for private work.

This request presents outside employment issues under §3-103(a) of the Public Ethics Law, as well as issues under the prestige provision of §3-104 (Article 40A, §§3-103(a) and 3-104, Annotated Code of Maryland, the Ethics Law). §3-103(a)(1)(i) of the Law prohibits a person from being employed by or having an interest in an entity that is under the authority of or contracts with his agency. Under prior Commission Opinions, Requestor's provision of consulting services to clients would result in an employment relationship with the clients. He indicates that he intends to operate only with clients outside of the State of Maryland, though it is not clear that this would necessarily mean that a client would not be subject to the authority of his agency. Given the breadth of the jurisdiction of DNR, it would be necessary for him to ensure that private entities that he serves, even though located in another State (such as Pennsylvania) are not businesses that also operate in Maryland and have obligations under the environmental programs managed or coordinated by DNR.

Assuming that in pursuing his business Requestor can avoid clients that have direct regulatory or contractual relationships with DNR, the question becomes whether he would nevertheless be barred from the activity by application of the more general impairment and prestige provisions of §§3-103(a) and 3-104. Section 3-103(a)(1)(ii) of the Law prohibits any other employment that would impair an individual's impartiality and independence of judgment. Section 3-104 prohibits the use of the prestige of one's office for one's own economic gain or that of another. In implementing the impairment provision in §3-103(a)(1)(ii), we have generally looked to the individual's duty to see if there is any relationship between the State duties and the private work which would result in impact of the private work on impartial and proper accomplishment of State duties.

Also, in considering §3-104 with the impairment provision of §3-103(a), we have set forth criteria in several prior Opinions regarding outside consulting work and the considerations for determining whether it would be barred by these provisions. (See Opinions No. 86-14, No. 86-18 and No. 85-18.) In particular, we identified criteria for evaluating activity under the impairment provisions as including its location in another state, whether it involves the same subject matter as an employee's State duties, whether it is something he would be expected to do in his State job, and whether it involves individuals or matters with which he would be interacting or impacting in his State job. As to the prestige provision, we have said that considerations are whether the employment is acquired or business is generated in connection with State duties or contacts, whether it would be done on State time, whether it involves State training or otherwise flows directly from State work or contacts, and whether an outside employer would feel pressured or perceive an advantage from the person's State position.

Given the broad and general character of the work Requestor intends to do and the still tentative plans for his business, we are unable to categorically advise him as to all of the potential areas for application of the Ethics Law. Assuming that he avoids any work with persons or entities involved with his agency, however, we believe that his private consulting work would be allowable, as long as he is careful to meet the criteria discussed above. He should, for example, not use his State position or contacts to acquire business, he should not take Maryland clients that could be involved in his agency's program, and he should not be involved in recommending or otherwise dealing with contractors that are part of his agency's program.

We understand, given the Requestor's new duties and the nature of his proposed business, that his agency does not believe that the activity would impact on his job or the agency's program. If as the business develops issues arise regarding application of these principles, further advice may be sought from the Commission or its staff.

M. Peter Moser, Chairman
   William J. Evans
   Barbara M. Steckel

Date: January 24, 1989