93.08

OPINION NO. 93-8

A water resources engineer in the Department of the Environment's Water Quality Certification Division has requested advice as to whether he may continue a private consulting engineering practice involved in land development and survey work. We advise that this practice cannot be continued within Maryland in view of the nature of agency's authority and functions in the water quality programs.

The Requestor is newly-hired as a regular employee in the Non-Point Source Permits Program (NPS Program) in the Water Management Administration of the Maryland Department of the Environment (MDE). He is assigned to the Water Quality Certification Division, which reviews and issues certifications for projects under §404 of the federal Clean Water Act. This program involves both government and private developers, but generally only where the project would impact on tidal wetlands and require a Corps of Engineers permit. The MDE, based on program approvals by the federal Environmental Protection Agency, reviews the sediment control and stormwater management aspects of these projects to determine that the project includes adequate control measures to avoid water quality degradation and soil erosion. Agency reviewers comment on style design and layout (for example, of ground surface holding ponds), and may suggest alternative control measures. The Requestor is a water resources engineer who reviews projects submitted pursuant to these requirements.

The NPS Program is also responsible for implementation of the State's sediment control and stormwater management laws (Environment Article, §§4-102—4-116 and 4-201—4-215, Annotated Code of Maryland). Under these provisions, the MDE directly reviews construction projects of the State and the federal government, such as highways, post offices, and military bases, to ensure compliance of a site plan with the water management laws enacted and implemented by the State, primarily in connection with the Chesapeake Bay improvement efforts. These provisions of the law also apply to the activities of private developers. The NPS Program also has ultimate authority as to private developers, though significant aspects of this activity have been delegated to local jurisdictions for implementation. Thus, projects being undertaken by a developer other than the State or federal government are as a general matter reviewed at the local level pursuant to local program approvals by MDE in accordance with minimum local program criteria established by MDE.

The Program Administrator for the NPS Program indicates that the Department reviews the operation of the local programs about every three years and may require general policy or program changes. Generally, consideration of the environmental aspects of specific projects is included in site plan approval processes at the local level, with sediment plans considered by the Soil Conservation District and stormwater plans reviewed by the county public works departments. The requirement is that there be a sediment and stormwater plan approved and in place before any earthmoving can begin on the project. Though the Department thus does not usually review specific projects as an ongoing matter, according to the Program Administrator, the State agency may look into a matter if a citizen complaint is presented to it. The State agency does continue to have ultimate authority and responsibility for implementation of the law, and could withdraw approval of the local program. Moreover, given the interrelationship of these activities, State and local engineers and water quality personnel necessarily interact on a more or less regular basis.

The Requestor indicates that he has had a private engineering consulting business established prior to his becoming an MDE employee. His business is a Subchapter S corporation solely owned by the Requestor, who is its sole employee. The Requestor advises that he gets business from people he has worked for in the past and gets referrals from individuals that he worked with before his State service when he worked for another company. His work involves site plan development for these private clients, including grading and sediment controls and stormwater management aspects of the project. Current projects include, for example, a contract involving the expansion of a restaurant, a church expansion, and a church on a new site. His function is to prepare a site plan proposal, a document that is submitted by the landowner to the county public works department in connection with construction permit application.

According to the Requestor, his private business is limited to three counties in the metropolitan Baltimore area, and his official duties would involve projects in three Western Maryland counties. He works in the MDE headquarters office in a unit including a total of five engineers assigned to handle water quality certifications throughout the State. Since his work will not include specific activities in the three counties where his private consulting business functions, the Requestor believes he can avoid reviewing in his official duties any project on which he may have previously worked in the private sector. He has indicated that his projects in his private business would be likely to be submitted to the county for review. The Program Administrator advises that implementation in these counties has been delegated to the local jurisdictions. Colleagues in the Requestor's office, however, would review his private work if it involves wetlands.

This request involves the type of outside consulting work that we have considered in many previous opinions. An initial question involves consideration of the application of the strict employment and financial interest prohibitions of § 3-103(a)(1)(i) of the Public Ethics Law (Article 40A, §3-103(a)(1)(i), Annotated Code of Maryland, the Ethics Law), which bars private employment with an entity that contracts with or is subject to the authority of one's agency. The Commission has generally said in applying this provision that employees may not engage in private consulting activities which entail the preparation and submission of applications or similar materials to their agency. This approach would apply here to limit the Requestor's ability to accept private work involving projects that require wetlands or other permits that would be submitted directly to MDE for water quality certification review.

It is also possible that involvement by the Requestor in projects considered by local jurisdictions operating pursuant to MDE delegated authority could bring this strict prohibition into play. This would depend on detailed consideration of the precise nature of these relationships and interaction between the State and local reviewing entities, and to some extent on the circumstances of specific projects. We do not, however, believe it is necessary at this point to resolve these further potential issues under the strict employment and interest section, as to each project in which the Requestor might be involved, as in our view the Requestor's inquiry is resolved by application of the general advice and guidelines developed in several opinions regarding private consulting. These opinions entail review of the principles of the impairment provision of § 3-103(a)(1)(ii), which prohibits any employment that would impair one's impartiality or independence of judgment, and § 3-104, which forbids the use of the prestige of one's office for one's own economic gain or that of another.

Our Opinion No. 86-14 includes a review of previous opinions dealing with outside consulting, and summarizes the kinds of criteria and issues considered in evaluating the allowability of consulting activities. Generally, the criteria include consideration of geographical focus in Maryland, doing the same kind of work in both private and official activities, serving the same populations in private and official duties, and interacting with the same persons generally in the context of the public and private activities. Other opinions that develop and apply these criteria include Opinions No. 85-18, No. 86-18, and No. 92-4.

The situation here is that the Requestor's private work is in Maryland, and is in the same field as the work that he does for MDE. It could, as he notes in his request, entail his interaction with local and other governmental staff, with which he or his State colleagues might be expected to interact in their official duties. Also, from the information provided in our consideration of this request, it is apparent that the environmental programs tend to involve a dynamic process that entails the interaction of a variety of government units at different levels of government. It could thus be difficult to ensure that one's private activities are truly separate from any involvement with the State agency. For example, local officials may ask for advice from his agency, or his private clients may have other projects pending directly with his unit.

We recognize that the Requestor and his agency propose that his private work and official duties will focus on different counties, and also that his private work would involve more direct accountability to local personnel implementing the water quality program rather than directly with MDE. We are concerned, however, that both his official and private work involve this same program; both rely on the same basic statutory mandate and authority, and are directed at protection of the quality of the waters of the State through control of non-point source activities. Moreover, the nature of this program requires that the public have the utmost trust and confidence in the objectivity of the employees involved. In considering these circumstances, we believe that the principles previously applied relating to work in Maryland and involving the same programs and staff personnel continue to be a sound approach to avoiding conflicts and the appearance of conflict as required by the Ethics Law, and must be applied in this situation to prohibit this activity. We do not believe that it would be possible to carve out carefully defined lines of operation permitting private work of this type by MDE employees in Maryland, particularly in a program like this where the jurisdictional and program delineations are so ambiguous and interrelated.

We therefore advise the Requestor and the agency that his continuation of a private consulting practice that functions in Maryland or includes clients who are otherwise subject to the water quality requirements of his agency is inconsistent with the requirements of the outside employment and prestige provisions of the Ethics Law. Work in other states would not be prohibited as long as it is consistent with the guidelines set forth in previous opinions governing that type of activity.

Mark C. Medairy, Jr., Chairman
   Shirley P. Hill
   Michael L. May
   Mary M. Thompson

Date: August 18, 1993