91.08

OPINION NO. 91-8

An advisory opinion has been requested from the Deputy Director of the Maryland Film Commission (the Requestor) as to whether he may do private free-lance work in the film and video development field. We advise that this activity would be allowable, as long as it is within the constraints set forth in this opinion, and within review procedures defined by the Requestor's agency.

The Maryland Film Commission is a unit of the Department of Economic and Employment Development (DEED) whose function is to promote the production of motion picture and television films in Maryland. It does this through provision of a range of logistical assistance to potential film-makers, including location scouting, securing permits, casting, film crew housing, catering, and equipment rental. The agency also prepares and distributes materials highlighting desirable film locations in the State. Its professional staff includes a Director, the Deputy Director, a Marketing Executive and a Production Services Manager.

This request arises from the Requestor's interest in being able to undertake free-lance work in script writing and film development. He advises that he engaged in this type of work before coming to the State, largely for profit and nonprofit companies in the East Coast area. This was discontinued when he took his current position. The Requestor suggests as possible types of projects recruitment video tapes for businesses, scripts for travel companies or real estate firms, or media projects for educational groups and religious or community programs. His interest at this time, also, would be primarily in the script-writing rather than in actual production of a feature. He would not envision, for example, working directly with production companies that he might deal with in his State position, or being involved in recruiting camera crews, providing technical services, casting, or other aspects of actually producing a feature written by him.

Given his prior successful experience in the area of film writing and production, the requestor indicates that he has a reputation in the field and has many relationships with persons in the film industry. He says that based on this background, his primary role with the Commission is to develop and implement strategies for attracting motion picture and television production companies to produce their projects in Maryland. The Requestor's duties also include special projects. These include the Comedy Writers Workshop sponsored by Warner Brothers Pictures with the assistance of the Commission, and Maryland On Screen, a Statewide project created by the Requestor that involves educating high school and college students about the film industry. The Requestor indicates that he does not provide direct support for film companies working in the State, and is not significantly involved in intergovernmental and public relations types of functions, which tend to be handled by the Director.

Consistent with our prior opinions, the Requestor's private free-lancing business would be viewed as a private sole proprietorship/consulting business in which he would have both an employment and financial interest. His activity would therefore be subject to the employment and interest provisions of § 3-103(a) of the Public Ethics Law (Article 40A, § 3-103(a), Annotated Code of Maryland, the Ethics Law), as well as the prestige provision of §3-104. Section 3-103(a) of the Law prohibits an employee from being employed by or having an interest in an entity that is subject to his authority or that of his agency, or that has contractual dealings with his agency (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)). Section 3-104 of the Law prohibits use of the prestige of one's office for one's own economic gain or that of another.

The Requestor apparently does not anticipate any direct dealings with the Film Commission or elsewhere in DEED, or providing services to persons that contract with or are under DEED authority. As long as this is possible in his acceptance of clients and his continuing dealings with them, the Requestor's private work would not be barred by the strict prohibition of §3-103(a)(1)(i). Rather, this situation is similar to those considered in our prior opinions dealing with application of the § 3-103(a)(1)(ii) impairment provision and the §3-104 prestige provision to proposed private consulting businesses.1 The fundamental approach in these cases has been to consider the individual's official duties in view of the proposed private activity to determine if there are relationships between the two that would impact on the individual's performance of the State job, or involve improper use of the official position in connection with the private work. Several of the factors considered focus on issues that can arise when the individual would be doing the same type of work in the private activity as is done for the State, and also whether the private work will serve the same population or be undertaken in the same geographical area as the State work.2

The Requestor here proposes to engage in free-lance work involving script writing and film development. This is different in substance from what he does for the State. He indicates that he would be dealing solely with community groups or businesses developing information or sales scripts, rather than in the entertainment field, which is the focus of his State work. Requestor also advises that, though he would anticipate doing projects in Maryland and in his local community, he would be in a position to select his projects and therefore be able to avoid any economic relationships with individuals or entities with which he would come in contact in his Film Commission duties. He also points out that he has substantial background and reputation in the film industry, and would be marketing his skills based on this background, rather than on his status as a State official.

In applying the impairment, prestige and other conduct provisions of the Law, we have said that the potential for conduct inconsistent with them is not in itself sufficient to prohibit a private activity. As to the impairment provision, we have looked for actual or assigned duties that would likely be impacted by the private work. Under the other provisions, we have defined constraints and clarified the obligations of employees to carefully comply with these limitations, particularly those designed to ensure that the individual's State position is not used to generate work in the private business. Taking this into account, and considering the description provided by the Requestor of his official duties and his proposed free-lance work, we advise that this activity would not be prohibited by the provisions of the Ethics Law. The Requestor must, however, continue to be aware of the application of the provisions of the Law and take care to avoid situations that would present issues under them.

He would, for example, need to avoid making use of contacts made in his travels and promotion activities relating to his State position to advance his private business. He should not enter into private relationships with people or entities that are expected to be factors in his State job, such as doing educational media work and videos directed at young people that could involve dealings with colleges and schools that he works with in the Maryland On Screen program. He also needs to be aware of potential issues that could arise with businesses that have significant dealings with DEED, and not get involved doing promotional or business development scripts that are funded by or otherwise involve economic development programs of the agency. He should also keep in mind that he would have to discontinue a private relationship or a project in process if the sponsor were to undertake dealings with his agency.

We are aware that the Department has expressed similar concerns that the Requestor's private work not involve persons or entities that also have dealings with the Film Commission, and has coordinated with the Requestor a monitoring process for ensuring that potential conflicts are avoided. Assuming that this is done and that the Requestor's free-lance work is otherwise consistent with the guidelines set forth here, we advise him that the activity would not be prohibited by the Ethics Law.

William J. Evans, Chairman
   Mark C. Medairy, Jr.
   Mary M. Thompson

Date: August 14, 1991

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1 See, for example, Opinions No. 91-5, No. 86-14, No. 86-18, No. 88-10, and No. 89-1.

2 See Opinion No. 86-14 for a discussion of the specific factors.