89.14

OPINION NO. 89-14

An Opinion has been requested from an administrator in the Maryland Environmental Service (MES) concerning whether he may serve on the Board of Directors of a private waste exchange organization. Based on information provided by his agency that this service is undertaken as part of his official duties, we advise the Requestor that the activity is not barred by the provisions of the Public Ethics Law (Article 40A, Annotated Code of Maryland, the Ethics Law).

The Maryland Environmental Service is a unit in the Department of Natural Resources. It is a quasi-public agency established as a service organization whose function is to help private industry and local governments manage liquid, solid, and hazardous wastes. It provides water supply and related facilities to private industry and local governments. It has constructed, manages and operates facilities for water supply, solid waste disposal and wastewater purification. The Requestor works in the Administrative Division of MES, and his primary function is to produce a corporate newsletter that deals with explaining and publicizing a number of aspects of the agency's activities. He also manages a federal grant for development of an information and instructional system on industrial waste reduction, and engages in other general informational and promotional activities relating to waste management and reduction.

The Northeast Industrial Waste Exchange (NIWE, or the Exchange) is a private nonprofit regional organization that until recently has functioned as part of an agency of the New York State government. Its goal is to promote the conservation or reuse of industrial and municipal waste materials, to provide educational programs relating to this, and to provide support services in connection with these goals. One of its primary activities is to publish a Listing Catalog of waste materials and to serve as a broker for the exchange of these materials from the waste generator to an entity that has a productive use for them.

The Requestor was involved in Maryland's affiliation with the Exchange in his past positions in Maryland government, and this in part is how he came to be recruited to serve on its Board. Currently the State's financial support of the Exchange is through the Hazardous and Solid Waste Management Division in the Department of the Environment. This Division is a regulatory unit that works with county governments to develop recycling plans, and reviews and coordinates efforts to implement the plans. According to the Division's Operations Administrator, its participation in the Exchange enables small Maryland companies to take advantage of the benefits of a waste exchange program. We are advised by the Requestor's supervisor that he has not had any dealings with this unit in MDE or with the State's funding of the entity.

The Requestor, according to his supervisor, is primarily involved in informational and promotional activities. His affiliation with NIWE is thus viewed as a useful liaison function carried out in connection with these informational responsibilities to MES. The participation in meetings has been handled as part of his State duties, on State time and with the State funding the travel and related expenses, and his position description has recently been amended to specifically include this liaison responsibility as a job duty. The agency advises that NIWE is a "useful service to the State's industrial community that is complementary to MES's own mandate." His supervisor further advises that it "is desirable to have a member of State government with a voice in the management of the NIWE, Inc., and *the Requestor's* board membership enhances both the capabilities and prestige of this agency."

Under prior opinions regarding service on the boards of similar private entities, the Requestor's service as a director of NIWE would be viewed as employment for purposes of §3-103(a)(1) of the Ethics Law, if it is undertaken in his private capacity. We have, however, in several prior Opinions (No. 80-5, No. 82-11, No. 87-13 and No. 88-9), allowed service on private entities as part of State duties, as long as certain guidelines were followed. Opinion No. 88-9, for example, involved the service by the Department of General Services records manager involved with State microfilming activities on the board of a private workshop providing microfilming services. His service was viewed by his agency as a natural enhancement of his State job, given the legislative and administrative identification of the workshop as preferred vendor of these services.

In view of the information presented here regarding the MES' interest in being involved with the Exchange as an informational matter, and its interest in the Requestor's continuing his affiliation with it as an agency liaison, we believe that this service would come within the principles discussed in Opinion No. 88-9 and other related Opinions. It would therefore be allowable for the Requestor as long as it continues to be assigned as part of his official duties. Also, his actions and positions taken on the NIWE Board must reflect the officially defined policy of the State and the MES, and he may receive no compensation, reimbursement (other than what would be allowable under State regulation) or other remuneration in connection with the activity.

It should also be noted that the participation, prestige and information provisions of §§3-101, 3-104, and 3-107, continue to apply to limit the Requestor's activities as part of the Exchange. This would be particularly true if grant or contract funding is sought from the State or if MES or other State facilities are approached as potential purchasers of NIWE's services. He should also take care to avoid any direct fund-raising activities on behalf of the entity that could bring him into contact with MES providers or contractors.

William J. Evans, Chairman
   Robert C. Rice, Ph.D.
   Barbara M. Steckel

Date: November 1, 1989