91.02

OPINION NO. 91-2

A former Division Director in the Waste Management Administration (the Requestor) has requested advice as to whether he may through his current consulting business assist a private client in a situation involving the Department of the Environment, which arose while he was a State employee, and with which he had some involvement. We advise the Requestor that this activity would constitute assistance of a party other than the State in a matter in which he participated while an employee, and would therefore be barred by the post-employment provisions of §3-103(b) of the Public Ethics Law.

This request was presented by an individual who is currently the President and majority owner of an environmental consulting company. He was previously employed as a Division Chief in an enforcement unit in the Office of Environmental Programs, formerly a unit of the Department of Health and Mental Hygiene. He left State employment in April 1987. In July 1987 the State's environmental programs were reorganized and the Department of the Environment (MDE) was established. This Department includes a unit called the Groundwater Investigation Division, which at the time of the Requestor's employment was a section within the Support Services Division of the Waste Water Management Administration.

The Requestor advises that in 1986 a large piece of property was transferred by a private company to another private development corporation (the Corporation). The property had been used for a process that involved the use of hazardous substances and in connection with the transfer an environmental investigation was conducted by a private consultant, in part to evaluate the actual or potential contamination to groundwater. This type of groundwater contamination can be subject to control by the MDE. Depending on the results of testing and other investigation, a current owner, along with prior owners over a period of time, can be required to develop and implement a remediation plan pursuant to federal and State law. The plan could include something as limited as continued monitoring or could require treatment or removal of contaminating sources.

The report as to the site purchased by the Corporation indicated the presence of contaminants, though apparently the parties disagreed as to the source and extent of the contamination. The investigative report was presented to the Requestor's unit and he advises that he coordinated its review with technical personnel. Agency personnel involved with the matter indicate that this is confirmed by documents in the file. They further indicate that technical agency review did not result in a resolution of contamination issues relating to the site. A variety of agency actions were considered and taken to determine what approach would be taken by the agency to resolve the matter. The Requestor advises that he left the State in April 1987 while the action was still pending. The current Chief of the Groundwater Investigation Division advises that when she took over the matter in the summer of 1987 the case was an active one. Since then continued investigations have been conducted both within the State and by private investigators acting on behalf of the parties; another survey is currently being planned. According to the Division Chief, the situation continues to be unresolved. The problems known about in 1987 have been confirmed and are still a problem, though additional information building upon the original submission is now available. Based on her description, it would appear that this situation involves an investigation begun in 1986 that was incomplete and which is continuing at this time, without intermediate resolution of any of the issues initially raised.

The Requestor indicates that his firm was referred to the Corporation through a Corporation attorney. The firm has been requested to conduct a review and evaluation of all of the materials and assist it in preparing a recommendation to the MDE that would propose a plan of action by the Corporation regarding this property. He advises that apparently there is now much more voluminous information which identifies additional contaminants. He describes his firm as a small one with a staff of eight. It conducts pre-transfer environmental studies for properties and also specializes in due diligence audits as to properties that are subject to governmental clean-up and monitoring requirements. He says that he would expect to be personally involved in any activities by the firm on behalf of the Corporation, and that the effort would include review and evaluation of documents and reports generated while he was employed by the agency and under his management and direction.

This request presents issues under the post-employment provision of §3-103(b) of the Public Ethics Law (Article 40A, §3-103(b), Annotated Code of Maryland, the Ethics Law). 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. Based on information provided by the Requestor and by the Groundwater Investigation Division it would appear that he was involved as a Departmental manager in initiating the process of review of the investigatory report relating to this property, as well as in the process of facilitating the review and coordinating the agency's response to this situation. It is our view, consistent with prior opinions and other matters involving this provision (for example, Opinions No. 89-11, No. 86-24, No. 82-24, and No. 82-17), that these activities constitute significant participation for purposes of the post-employment provision.

Further, we conclude that the Requestor's assistance or representation of the Corporation in the State's continued consideration of this situation is prohibited by §3-103(b), as the current proceedings must be viewed as the same matter in which he participated prior to leaving State service. 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, advising that the term generally has the same meaning as defined in the Ethics Code that preceded that Ethics Law, as including "any proceeding, application, submission, request for ruling or other determination, contract, claim, case or other such particular matter". In applying this concept in the context of particular opinions, we have considered whether the situation involves discrete and identifiable issues or called-for action so that the parties and issues can be discerned, whether the parties to the matter are the same, whether the State interest is still important, whether the subject matter is the same (such as the same property, same grant, etc.), and whether the issues are the same.

In the situation here, we believe that the consideration of the original investigation constituted an identifiable particular matter which was not resolved and which continues to the present. The parties are the same and the property is the same, and the State continues to have the same interest and authority in dealing with groundwater contamination at the site. Also, though there is apparently a significant increase in information, and the scope and direction of the issues may have fluctuated in the intervening years, we believe that the issues continue as fundamentally the same. In our view, the matter that is currently pending grew directly from the initial submission and review by the agency in which the Requestor participated, and the original question continues to be a part of the current investigation.

Based on the information provided, and the principles developed in prior opinions applying §3-103(b), we therefore advise the Requestor that the matter in which he participated is the same matter that continues to the present. His proposed involvement on behalf of the Corporation is therefore prohibited by §3-103(b) of the Ethics Law.

William J. Evans, Chairman
   Mark C. Medairy, Jr.
   Robert C. Rice, Ph.D.
   Mary M. Thompson

Date: March 7, 1991