90.12

OPINION NO. 90-12

An opinion has been requested as to whether and how the Public Ethics Law post-employment provision limits the activities of a former employee of the Developmental Disabilities Council (the Council). Based on a review of the activities in which the individual participated as an employee, and their relationship to the current matter under consideration, we advise that her assistance or representation of a new employer in the current matter would not be inconsistent with the Law.

This request is presented by the former Executive Director of the Developmental Disabilities Council. This is an agency functioning within the Governor's Office for Handicapped Individuals. It was established pursuant to the federal Developmental Disabilities Assistance and Bill of Rights Act, which generally provides for federal grants to finance services and facilities for the mentally retarded and persons with other developmental disabilities. The law requires each state to have a state plan and to have a state planning and advisory council. The Council was established as the planning council in Maryland in implementation of this provision. It has adopted By-Laws that define its operations and set forth its purposes to: 1) advocate for the developmentally disabled citizens in Maryland, 2) advise the State in matters concerning developmentally disabled persons, 3) undertake projects and activities for improving and extending programs and services for persons with developmental disabilities in the State, and 4) improve and coordinate planning to meet the needs of persons with developmental disabilities.

Under the federal enabling law, the Council is completely federally funded pursuant to an allotment based on a formula established in the law. The current Executive Director indicates that the Council funding involves 35 percent allocated to administration and planning, and 65 percent is committed to program expenditures, primarily through a Request for Proposals (RFP) process. A small amount of the 65 percent piece of the funds reserved for program activities may be used for in-house projects (such as conferences and in-house activities) and unsolicited proposals, though there is currently no specific allocation for unsolicited proposals. The Executive Director indicates that unsolicited proposal grants have in the past few years not been more that a total of $15,000, and have tended to be relatively small event-oriented projects such as holding a conference, paying speakers' honoraria, or funding travel to send a disabled person or provider to a conference.

The Council, consistent with the federal statutory mandate, prepares an annual updated plan and establishes preliminary priorities from which a series of RFP's are developed each year. This is a one-time a year process with RFP's issued in the Spring with a deadline for submission of proposals a few months later. Proposals in response to an RFP are reviewed and if accepted funded on a federal fiscal year basis (beginning on October 1). The maximum funding period is for three years, with each year involving an evaluation and determination as to renewal. The projects tend to be viewed as demonstration projects that after three years will either be continued as an ongoing service with other funding, or ended. Thus each year's federal allotment is generally divided to include 35 percent for administrative costs, with 65 percent further divided to reflect new grants under the current RFP's, continued funding for grants made in the prior two years, and a small amount for in-house or unsolicited proposal projects. The Council's approach is to look for practical demonstration-type projects, and over the past three years solicitations have addressed projects such as In-School Disability Awareness Programs (FY 1989), Self-Advocacy Programs (FY 1989), Enhanced Basic Training for Community Services Staff (Fy 1990), Parent Training and Information Resource Center (FY 1991), and Case Management Training Support Initiative (FY 1991). One of the RFP's issued in 1988 for FY 1989 involved Monitoring Quality in Community Residential Services. Its purpose was "to solicit proposals to establish a process to continuously monitor community residential programs that support people with developmental disabilities." The focus of the RFP was to define ways of establishing links between consumers (parents, family members, people with disabilities), and provider organizations with a view to increasing and reinforcing the quality of residential and support services to disabled clients.

Two proposals were funded in response to this RFP. One was from a private provider group, and involved developing trained volunteer parent-monitor teams in specified local jurisdictions that would conduct quarterly visits to community residential sites in the area. The second project was also to a private entity, and involved the establishment and maintenance of a voluntary grass roots Quality Assurance Network in a county, designed to monitor the quality of life experienced by disabled persons living in residences operated by community providers. The Requestor was Executive Director of the Council at the time this RFP was issued and these projects originally approved. As such she filled a significant staff function and participated in the Council's process of reviewing and awarding these grants. In this process the Council makes the final decisions, but staff members work in developing negotiating points and assisting in the review process and are influential in the final action of the Council.

The Requestor was involved in the initial process of negotiating these grants, but left the agency in June 1989, before the process of second year funding was completed. Both of these projects are still active, with requests for third year funding currently in process. Also during Spring 1989, while the renewal of these grants was being considered, the RFP process for the period covering October 1989 through September 1990 was begun with an RFP announcement in March 1989 with an April date for submission of proposals. This is the period currently in effect and would likely be the federal allotment from which an unsolicited proposal submitted now would be funded. The general planning and establishment of RFP priorities for this period are determinations that were made prior to the Requestor's termination and in which she would have participated.

Since leaving the Council the Requestor has engaged in general consulting work in the area of developmental disabilities. One project involves her employment with a private provider entity that provides a variety of services to the developmentally disabled in the Dorchester County area. The project involves her service as a consultant in setting up an internal quality assurance program for this individual provider. This project deals with the same fundamental quality assurance issues generally addressed in other projects, though from the standpoint of within a particular provider agency, rather than from the idea of an outside monitoring process. The project entails the Requestor's working with the provider's staff to develop and implement an internal program for enhancing the quality of life of the entity's residents, and the primary portion of the $5000 project budget is the $3800 consultant fee.

The current Executive Director advises that quality assurance is one of the aspects of activity in programs for the disabled that is a continuing focus, though it has not been directly included as an RFP since the 1988 process (covering FY 1989). As to the relationship of the pending unsolicited proposal from the Provider to the other projects in this field, she indicates that the reviewer might question if a project has been done before and whether anything was learned from a prior project that would be related to a proposal under consideration. She says, however, given the dynamic approach to activity in this area, a proposal would likely be judged more directly on its own merits for factors such as its innovativeness, its feasibility, whether it can make a difference, and how it fits into current priorities. Also, she notes that the proposal addresses quality assurance from the view point of the provider entity and the services provided to the resident, while the prior projects dealt with establishment of outside monitoring activities directed at the provider's performance. She indicates that it is likely that the current proposal would have been viewed as nonresponsive to the 1988 RFP.

The question presented in this request is the post-employment issue presented by the Requestor under § 3-103(b) of the Public Ethics Law (Article 40A, § 3-103(b), Annotated Code of Maryland, the Ethics Law).1 This section prohibits a former employee from assisting or representing a party other than the State for compensation in a matter involving the State if the matter is one in which the person participated significantly while a State employee. From the facts provided here, the Requestor seems to have participated in the quality assurance grant projects funded originally during FY 1989, and also participated in the priority determination for the FY 1990 funding allotment from which the current unsolicited proposal would be funded. As she would be compensated for assisting the Provider in a grant involving the Council, the post-employment restriction would apply to this situation if the current proposal is viewed as the same matter as the original (and continuing) quality assurance monitoring grants or the same matter as the priority determination for the current funding period.

The definition of the concept of a matter in the context of the post-employment provision of the Law is an issue that we have addressed in several opinions. We have advised that the term generally has the same meaning as defined in the Ethics Code that preceded the Ethics Law, as including any "proceeding, application, submission, request for ruling or other determination, contract, claim, case or other such particular matter." In considering this definition as well as judicial interpretations of comparable federal statutes, we have considered, for example, factors such as whether the parties are the same, whether the factual situation of the matters is the same, whether the nature of the government interest is the same, and the extent to which the individual would have been involved as an official in defining the terms or parameters of the activity in which private involvement is proposed. In applying these considerations to the situation here, we conclude that the project in which the Requestor currently proposes to be involved is not the same matter as one in which she participated while an employee of the Council.

Most significantly, we are persuaded by the agency's view that the RFP process in 1988 and the current proposal deal with different aspects of the quality assurance issue in this field. The earlier process in which the Requestor participated was directed at external monitoring mechanisms to evaluate the quality of provision of services by providers to disabled individuals, and both of the successful proposals had this direction. The current project involves a provider activity focusing on developing skills and mechanisms to provide services to improve the quality of life of the clients served. These, it seems to us, are different focuses, and in fact, the agency has indicated that the current proposal would very likely not have been viewed as responsive to the prior RFP. Taking this consideration with the fact that the parties are different and that the contract is a different transaction not growing directly out of the prior RFP, we advise that the Requestor's involvement in it for the Provider would not be participation in a matter in which she participated while an employee. Nor do we believe that the potential funding of this unsolicited proposal during a funding year where the Requestor was involved in preliminary priority definition not specifically related to this proposal requires a conclusion that this is a matter in which she participated. The unsolicited proposal for funding here need not, in our view, be seen as the same matter as the original program plan. We therefore advise the Requestor and the agency that her assistance and participation on this project would not be barred by the post-employment provision of §3-103(b) of the Ethics Law.

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

Date: August 7, 1990

* Barbara M. Steckel was a member of the Commission when this request was considered and decided, but completed her second full term on the Commission prior to formal issuance of the document.

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1 A related issue regarding Council member involvement is being addressed in another context.