91.03

OPINION NO. 91-3

An advisory opinion has been requested as to whether an Assistant Manager in the Office of Employment and Training's Management and Technical Assistance Unit may be a consultant on a contract involving other State agencies, and in which his own agency will participate. Based on the information provided and the nature of the relationship between this project and the Requestor's agency duties, we advise that this activity would not be permissible.

This request is presented by an individual who works as a Grade 17 Administrative Officer II in the Office of Employment and Training (OET), which is a part of the Department of Economic and Employment Development. The mandate of the Office of Employment and Training is to provide education and job training opportunities to economically disadvantaged adults. The agency has substantial information requirements, and the Requestor is a senior computer programmer in the Management and Information unit. His job entails development of the software links between his agency's job training database and the departments of social services that serve the State's welfare clients, as well as the development and maintenance of a Management Information System that connects these and other databases.

The situation presented here involves a collaborative project sponsored by several State agencies, in which the Requestor has been asked to participate as a private paid consultant. The project grew out of participation by a Maryland team from several agencies in a National Academy for Children, Youth and Families sponsored in part by the Ford Foundation. The purpose of the National Academy was to evaluate and develop ways to coordinate previously disparate state programs that addressed a variety of problems relating to families, to develop programs for addressing these issues more holistically with the idea of serving the whole family as a unit. While the Academy was ongoing, the Maryland team took internal steps to develop demonstration projects to test the possibility of coordinating the provision of services to family units through "Family Centers." These projects were funded with DEED funds and are either operational or very near to operational at the present time.

Since the ability to provide services in this way depends in part on the availability of information regarding the particular family from all of the State agencies serving the family, these Family Center projects include an information component, which is currently being provided through the Management and Technology Unit in OET. The Requestor is in this unit and his duties include involvement in and work on the information aspects of the Family Center demonstration projects. As a result of its participation in the National Academy, and in order to enhance the information support for the Family Centers, the Maryland Team submitted a grant request to the Ford Foundation for funding to develop the integrated information systems that would be necessary for Family Center projects to work effectively. The grant project request was written by the Executive Director of the Governor's Employment and Training Council (GETC), and was submitted by the Director of the Office of Children, Youth and Families (CYF). A grant award of $125,000 was made to CYF with its Director as the Project Officer.

It is planned that the project will be subcontracted to Charles Community College. The College, which administers the Charles County employment and training program, would provide technical assistance to the project as well as administrative support (including handling of administrative matters such as record keeping and payment records). The project would involve use of three consultants with a total of 200 days of effort. The Requestor would be the consultant on software development (about 40 percent); a private hardware expert would be the consultant as to the hardware interface (also about 40 percent); and a contractual employee in the Employment and Training Council would be developing manuals and doing training work on the system. The work of these consultants would be coordinated by the Executive Director of the GETC as part of his official duties with the Council. He will also head two work groups that include representatives of all of the interested agencies and provide policy direction for the project. The Requestor's supervisor is on these work groups.

The project will entail use of information that is managed by the Requestor's unit, and he and his office are the current source of the information for the Family Centers. The software effort to be undertaken by the Requestor would involve programming off of a commercial software package that is a higher version of the one currently used by the State. Apparently the Requestor is one of the few people in the State who really knows this system, and that is one reason why he has been identified as the person for this project. He would not, however, work with the system that he currently uses in his State duties. The project would purchase the software package and the Requestor would use it to do the programming at his own computer at his home. He would do this pursuant to a sole source contract with the College, and he will be viewed as a vendor with a vendor certification from the College. As noted above, the grant implementation plan envisions a total of 200 days of consultant time with the Requestor representing 40 percent of this, or 80 days. The payment rate would be $50 per hour for the software consultant with total potential payments of up to $32,000.

This request presents issues under the outside employment provisions of §3-103(a) and 3-105 of the Public Ethics Law, as well as the prestige provision in §3-104 (Article 40A, §§3-103(a), 3-104, and 3-105, Annotated Code of Maryland, the Ethics Law). Section 3-103(a) prohibits an employee from being employed by or having an interest in an entity that contracts with or is subject to the authority of his agency or an agency with which he is affiliated (subsection (a)(1)(i)). It further bars any other employment that would impair the individual's impartiality or independence of judgment (subsection (a)(1)(ii)). The Law defines "business entity" very broadly to include any entity regardless of form, and we have consistently advised that where services are provided through a sole proprietorship, the individual has a private business entity with which he has both an employment and interest relationship. (Examples include Opinions No. 88-16, No. 82-18, No. 82-16 and No. 82-3.) Under these principles, we believe that the Requestor does have an employment relationship with a private vendor business that will be contracting with the State on this project.

The Requestor works for the Department of Economic and Employment Development. The Ford Foundation grant is to the Office of Children, Youth and Families, which in turn has contracted to another State agency, Charles Community College. In his private capacity the Requestor would be a vendor to the College. Since he thus is not employed by or clearly affiliated with either of the State agencies that are parties to this agreement, we conclude that the strict prohibition of subsection (a)(1)(i) would not apply here. He is, however, employed by an agency that is very much involved in this process, and has duties that will involve him directly in the OET's participation as a contributor of the database for the project. It is therefore our view that this situation presents concerns under the impairment provisions of §3-103(a)(1)(ii), as well as the employment prohibitions of §3-105 and the prestige provision in §3-104.

The impairment provision in subsection (a)(1)(ii) of §3-103 was added to the Law, primarily based on the Commission's recommendation, to deal with this type of situation, where the technical relationships of the strict provision are not met, but where there are other relationships that give rise to clear and serious concerns of a conflict of interest or appearance of conflict. In implementing the impairment provision we have looked at specific job responsibilities to determine whether relationships exist between the private activities and public responsibilities. In our view, there are some significant relationships here, given the Requestor's involvement with the information database that would be a part of the process, his supervision by persons involved in policy and management decisions, and his current working experience and involvement with the software system to be used in the project.

Moreover, we believe that §3-105 of the Law would have relevance here. Section 3-105 prohibits an employee from being employed by a party to a contract with the State, if the contract or matters substantially relating to the contract are part of his official duties. Though the Requestor may not be a manager with policy and expenditure responsibilities regarding the grant, he would be employed by an entity (his own vendor business) that is a party to a contract with the State (Charles Community College). To the extent that he will be responsible in his official duties for providing information regarding the current database, and for supervising the workload of his staff in connection with his office's responsibilities in connection with the project, the grant would be part of his official duties, as is contemplated in §3-105. His undertaking this activity would therefore be prohibited by this section.

We are also concerned about the application of §3-104 of the Law to this situation. Section 3-104 prohibits officials and employees from using the prestige of their office for their own economic gain or that of another. In considering situations involving outside employment or consulting work, this Commission has generally read this section as barring any employment that flows directly and immediately from a person's State job, or relies directly on expertise and knowledge that is peculiar to the State position. In this situation, apparently one of the reasons for seeking the Requestor's services specifically is his experience with the State information systems and databases that are part of his State job and are also an element in this grant. He was identified because in his State position he is known by and works with the persons implementing this grant.

In summary, this situation involves a sole source procurement for a substantial amount of money that is to be directed to a State employee who has official duties relating to the contract and whose primary qualification for the task is this involvement and his knowledge gained in the context of his current State job. Moreover, it is in a field of endeavor where there appear to be a substantial amount of resources in the private sector. In our view, this situation presents the kind of circumstances that are intended to be addressed by §§3-103, 3-104, and 3-105 of the Ethics Law, as discussed above. We therefore advise the Requestor and the State agencies involved in this project that his employment as a private vendor on the grant is prohibited by the Ethics Law.

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

Date: April 17, 1991