91.10

OPINION NO. 91-10

An advisory opinion has been requested regarding whether an Assistant Manager at the Computer Science Center of the University of Maryland College Park (UMCP) may undertake private consulting activities with an entity that has consulting and other relationships with a contractor to the Computer Science Center. We advise that this activity is allowed provided that it is consistent with the guidelines of this opinion.

The Requestor works at the Computer Science Center at UMCP on the process of establishing and maintaining the computer network at this campus. This process involves a procurement with a private computer system vendor (the Vendor). This vendor provides network routers, that is, the hardware necessary to connect various buildings and rooms to establish a computer network. According to the Requestor, the Vendor is the leading supplier of this equipment. It is a large international company whose equipment represents the state-of-the-art in this field. Its products are widely used, particularly in campus settings, as it apparently was the first to integrate different brands of computers to develop campus-wide networks in the university setting. Though UMCP has in the past used other equipment, in the Spring of 1990 a procurement was initiated to expand the system and improve its efficiency. The Vendor was the only bidder and was awarded the contract for approximately $290,000.

Subsequent sole source contracts have been undertaken for spare parts and maintenance and to purchase another router to have available for maintenance purposes. A procurement is currently in process to contract with the Vendor for maintenance services. We are advised that although the Vendor provides consulting and other support services to program and configure the hardware to establish a network, UMCP uses its own staff for this and does not contract for these services. As part of the management staff in the Computer Science Center, the Requestor was significantly involved in developing the specifications and in implementing this procurement. He also continues on a regular basis to be involved in operational aspects of the network system, and has been involved in subsequent procurements for related services and supplies.

This request arises because the Requestor has been asked to do some private consulting work with a computer software, training and service company (the Company). This is a small relatively new company (only 2--3 employees) owned principally by an individual that the Requestor has worked with in the past when the individual was employed at the Naval Academy and elsewhere. The Company provides consulting services in programming computer network systems, including network configuration and training both on-site and otherwise. The Company contracts with the Vendor to do consulting for it and also takes referrals from it. According to the Requestor, however, the Company is independent from the Vendor; it was not established by the Vendor, or its employees or officers. He also advises that the Company is not in any way involved with the Vendor's contract with the University, nor does it have any contracts or other relationships directly with the University.

Since the Vendor has a very large market share in its industry, marketing consulting services in network development and implementation necessarily entails working with this hardware and developing expertise in it. The Requestor indicates that the Company has developed skills and expertise in working with the Vendor's hardware in doing training and network development. According to him, about 50% of the Company's work at the current time involves the Vendor or Vendor products. This work includes contracting with customers to put together a network and train staff where the entity happens to have Vendor equipment, but no other relationship with the Vendor. It also could include being hired as a subcontractor to the Vendor where it is selling equipment and also providing the customer with implementation and training. The Company is apparently also seeking to market itself to the Vendor to develop software for the equipment. The remainder of its work apparently does not involve Vendor products or funding at all. The Requestor has experience in networking and in using Vendor equipment and would work with the Company as a consultant and trainer. He would be able to limit his work with the Company to projects not directly involving the Vendor or Vendor referrals to the Company. The work would entail going to the customer's location for a three-day training program.

This request raises issues primarily under the employment limitations of §3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law). This section prohibits an official or employee from being employed by an entity that is under his or his agency's authority or that contracts with or is seeking to contract with his agency (subsection (a)(1)(i)). It further bars any other employment that would impair his impartiality or independence of judgment (subsection (a)(1)(ii)). We have considered application of the strict prohibition where there are indirect relationships in several contexts. In some situations where the private activity has in some way resulted in interaction with the person's agency, we have advised that the employment prohibitions would apply. (See, for example, Opinion No. 80-18)

In the situation here, however, the Requestor's proposed private employment would be with an entity that does not have direct contractual or other relationships with his agency. Moreover, his employment with it would not involve the University in any way, nor, apparently, would it necessarily entail his working for the Company on subcontracts that it has directly with the Vendor or that are referred from the Vendor. We have in two prior opinions considered similar issues. (Opinions No. 83-38 and No. 82-52) Although these two opinions each have their own particular facts, they represent past situations where we have concluded that employment with entities that have dealings with agency vendors is not necessarily prohibited. In this situation, as long as the Requestor undertakes not to accept any assignments for the Company that involve direct work as a contractor or subcontractor of the Vendor, then, following the principle in these opinions, the strict prohibition of §3-103(a)(1)(i) would not apply to bar this employment.

Nor, provided that the Requestor takes care in his dealings in his private activity, do we believe that this employment would result in impairment for purposes of §3-103(a)(1)(ii). As has been the case in other situations involving application of the impairment provision of the Law, the concern under these provisions is to consider the particular duties of the employee to determine whether his ability to carry them out impartially and with independence of judgment would be impacted by the private relationship. We recognize here that the Requestor's private employment would involve doing similar training and consulting activities using the same hardware that he works with in his State job. His private work would be with an entity that is very small and relies heavily on its Vendor work. Also, his State duties necessarily involve his participation in system development, and use of Vendor equipment.

We cannot, however, conclude as a matter of Law that, as the facts are presented here, there would be impairment as contemplated by subsection (a)(1)(ii) of the Law. In fact, we are advised by the Requestor's immediate supervisor, as well as the Director of the Computer Center, that the agency does not believe that this private employment as described would present issues, or that the Requestor's official responsibilities would be impacted by his private work for an entity that has dealings with this agency contractor. If his private work were to entail his direct dealings with the Vendor and its sales and other representatives, then we would be concerned that the private work would impact on his State employment in violation of §3-103(a)(1)(ii). However, as long as his work for the Company involves Company clients other than the Vendor, and does not involve any Vendor subcontracts or referrals, or direct dealings with Vendor personnel, we believe that this affiliation would be allowable.

Although we thus conclude that the Ethics Law does not absolutely prohibit this activity, the Requestor should be very sensitive to the fact that the sections of the Law relating to nonparticipation, use of prestige and use of confidential information (§§3-101, 3-104, and 3-107) operate to limit or constrain secondary employment relationships. The Requestor should therefore take no action in his State position which could be interpreted as improperly benefiting the Vendor, nor should he participate in any matters where the facts suggest that he or the Company would have an economic interest. As a practical matter, this means that it would be best if he were not to play a role in any significant discretionary decisions that involve payments or contractual dealings with the Vendor. Additionally, he should take care that no confidential official information is used or disclosed in the context of his private employment relationship.

Under all of these circumstances, and assuming that as this affiliation develops no issues are presented that involve interaction between the Requestor's private work and official duties, we advise the Requestor and his agency that this affiliation would not be inconsistent with the employment or other provisions of the Ethics Law.

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

Date: August 14, 1991