91.13

OPINION NO. 91-13

A request has been presented by the Office of Power Plant and Environmental Review, a unit in the Department of Natural Resource's Tidewater Administration, as to whether the former Director of the Office (the Former Employee) may provide services pursuant to a contract between the agency and his current employer. We advise based on the description of the contract process and the nature of the licensing support function of the Office that this service would be inconsistent with the post-employment bar of the Public Ethics Law.

The Office of Power Plant and Environmental Review (PPER or the Office) is established in §3-301(d) of the Natural Resources Article as a continuing research program for electric power plant site evaluation and related environmental land use considerations. Its primary function, in addition to general environmental research relating to power generation, is to do impact assessments and provide advice and recommendations to the Public Service Commission as to whether a power plant should be licensed and under what conditions. Implementation of this mandate involves use of "integrator" contractors that serve for a five-year period as the contractor in a particular subject area. The contractors are selected based on a standard competitive process and must be approved by the Board of Public Works. Annual funding is based on a Scope of Work defined for each fiscal year in the contract. This Scope of Work is reflected in the agency budget which is approved annually.

According to the current Office Director, the annual Scopes of Work are in-house planning documents developed within PPER by contractor personnel and agency personnel. They may include tasks directed at general research relating to power plant environmental issues, and also tasks in support of particular licensing activities. Each integrator contract is administered by a PPER staff person who serves as the contract monitor. It is this person's function to be the agency point person for administrative aspects of the contract. Each licensing action, however, may involve aspects in each of the subject areas of the various integrator contracts, and the program manager within the Office who has responsibility for a particular licensing action may use resources under several of the integrator subjects. The PPER has a professional staff of eight, and thus one person may perform both of these roles.

The current integrator contract for environmental engineering was let in 1989 with its first year covering FY 1990. The Former Employee's current employer (the Company) was selected through the standard bidding process which led to a five-year contract with an initial spending cap of $5 million, at $1 million per year. The Company's function is to provide PPER with technical support in such areas as structural engineering, hydrogeology, soils science, chemistry, risk assessment, engineering, cost-benefit analysis, and policy analysis. Its projects include assistance in power plant site evaluations, review of innovative technologies proposed by utilities, acid disposition, and general technical support. In carrying out the Scope of Work, Company personnel work closely with PPER staff in carrying out the agency's mandate.

The Former Employee became Director of PPER in 1988. The position description for this job defines the position as one of general management, policy and technical direction. Specific responsibilities include review and development of study areas required to address the goals and objectives of the program, development of individual study plans, and coordination of study plans within PPER. The position description indicates that duty assignments to other PPER staff are made by the Director, who is also responsible for indirect supervision of contractors' staff. In the area of program budget and procurement, the Director's duties include determining budget priorities and levels of funding and reviewing contracts and statements of work for technical and administrative accuracy.

At the time the Company was selected as the environmental engineering integrator contractor the Former Employee was the Director of PPER. He was not on the selection committee, though as Director he was the direct line supervisor of the contract monitor for this subject area, who chaired the selection committee. As Director he was in the chain of review and would have been the person to approve and forward the contractor selection to the Department for submission to the Board of Public Works. In the first year of the contract, the Former Employee directly supervised the contract monitor in administering the contract. He says he would provide the target budget to the contract monitor who would work with the contractor in developing the detailed Scope of Work. The Former Employee would then review this to be sure that the budget levels were reasonable, that the Scope of work was consistent with the legal requirements and reflected a reasonable distribution of costs, and that the costs were consistent with the initial bid.

The contract monitor retired from State employment in April 1990, and the Former Employee took on the contract monitoring responsibilities until his own departure from the agency in March 1991. During this period he performed the administrative tasks of coordinating the work under the contract. In addition, he also had program responsibility for several items. The 1992 Scope of Work under which the Company is currently operating was apparently developed primarily by the contractor's program manager after the Former Employee left the agency, with the final document submitted in July 1991. This Scope of Work includes licensing tasks and other PPER projects that were pending in the Office while he was Director and in which he could very well have participated as supervisor and manager of the program.

The Former Employee currently works for the Company as its Director of Utilities and Energy. He began this employment immediately after leaving PPER. This request is presented by the Former Employee's successor as Director of the PPER, who would like to be able to call upon him to provide some services under the 1992 Scope of Work. The Director would not envisage the Former Employee serving as a Company program manager responsible for an entire task. Rather, he would like to use him for occasional consultant-types of efforts. He suggests, for example, use of his expertise in reviewing a study or report, or asking him to conduct a survey or research study in connection with an identified task under the contract.

This request presents issues under the post-employment provisions 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 official or 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 he participated significantly while a State employee. The Former Employee would be assisting the Company in a contract involving the State as part of his compensated employment with the Company. Also, in our view, he participated in the integrator contract between PPER and the Company. He was Director and included in the concurrence chain of the initial agreement, he supervised the original contract monitor in the 1990 Scope of Work, he was himself the contract monitor for the 1991 Scope of Work, and he had program responsibility for specific licensing and other tasks of the 1991 Scope of Work. Also, this was one of four major contracts for implementing his unit's mandate, representing approximately $1 million in annual expenditures, and his duties as Director would necessarily have entailed his involvement in the contract activity.

We believe that these activities of the Former Employee while he was a PPER employee must be viewed as significant participation in the Company's integrator contract with PPER, and, moreover, that this participation is in the same matter in which he would be involved under the current Director's proposal. We have considered the concept of matter in several contexts in prior opinions, advising that it includes any "proceeding, application, submission, request for ruling or other determination, contract, claim, case or other such particular matter." Also, in a recent opinion (No. 90-12), we further considered the kinds of factors that would identify whether a matter is the same for purposes of this provision. These included 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. Under any of these approaches, we are persuaded that the current PPER/Company integrator contract is a matter in which the Former Employee participated significantly in his job as PPER Director.

In considering this particular situation we have also carefully reviewed our Opinion No. 85-14, which dealt with this same program, allowing a former Director to be involved in an integrator contract. However, the view expressed in that Opinion that the integrator contract and the annual Scope of Work under it were different matters was based substantially on the understanding of the annual process as fundamentally involving a new contract action, with full DBFB and Board of Public Works review. This process has been specifically changed, and the integrator agreements are now treated as full five-year contracts. The annual Scopes of Work are in-house only, with no signatures and no formal Departmental review or concurrence by other State control agencies. The annual funding process is purely a budget matter within the context of the annual budget review.

Under these circumstances, we do not believe that the approach set forth in Opinion No. 85-14 can continue to apply. Since the Former Employee participated in the integrator agreement, the prohibition against his working on the contract on behalf of his current employer applies. Also, to the extent that he participated in particular licensing matters, his involvement in his current position as a consultant on issues relating to these matters would likewise be restricted. We therefore advise the Former Employee and the agency that his provision of services on behalf of his current employer under the contract or otherwise in connection with licensing matters in which he participated as Director would be barred 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: October 30, 1991