95.10

Opinion No. 95-10

A question has been presented regarding application of the post-employment provision of the Public Ethics Law (Article 40A, §3-103(b), Annotated Code of Maryland, the Ethics Law) to the involvement by the former Market Manager of the Maryland Food Market Authority's produce market (the Requestor) with the tenants of the Market. We advise as to the post-employment limitations, that the Requestor must refrain from activities and affiliations with the tenants that involve specific matters in which he significantly participated, including the leases between the tenants and the Authority, but may provide services related to the tenants' business activities not provided by the Authority or otherwise related to the lease arrangement between the tenants and the Authority.1

The Maryland Food Center Authority is established in Article 41 §13-101 et seq., Annotated Code of Maryland. The Authority developed and operates a 400-acre industrial park development at the Maryland Wholesale Food Center in Howard County, which includes private facilities operated by lease from the Authority or on parcels purchased from the Authority subject to covenants defining the entity's relationship to the Authority. It also includes two warehouse facilities operated by the Authority, the Produce Market and the Seafood Market. These facilities were both previously managed by Market Managers, and the agency's executive offices were located at the State Office complex in Baltimore City. Due to a recent reorganization and relocation of the Authority's executive offices in Howard County, several positions previously assigned specifically to each of these Markets were eliminated and functions involved in these positions were reassigned to other staff of the agency. The Requestor's position as the Market Manager for the Produce Market was one of those eliminated by this reorganization.

The Market is operated through leasing of space to wholesale marketers of all kinds of food produce. The Authority as the landlord has responsibilities under the lease to handle trash collection and building maintenance, and to provide security and administrative support. The Market Manager's responsibility was to supervise employees who performed these functions and generally to maintain tenant relations. This included ensuring compliance by tenants with the rules and regulations of the Market, and collecting fees that are charged for admission to the Market either as a buyer or a seller. The fees collected become available for use in operating and maintaining the Market. The Requestor's duties included office administration responsibilities at the Market, and directing the operational functions of the Market, including cleanliness and sanitation, general maintenance, problem resolution, promotional activities and tenant relations (including handling meetings of the Tenants Advisory Board). He also had duties regarding equipment purchase and construction of improvements at the Market.

Apparently there were at least some Market tenants not in support of the reorganization and personnel changes, and there was some suggestion that the Requestor could be privately employed as part of a plan under which the tenants would manage the Market themselves. We are advised, however, that the new organization established for the Market is proceeding as planned. The Requestor indicates that when approached by the tenants about this he told them they should deal with the Authority as to any proposal, and that if it were done and the private position of Market Manager were created, he would apply, but that he has not been involved in any further discussions as to this proposal. He says that he has, however, been approached by some tenants regarding the provision of other services that relate more directly to their substantive sales activities and to the carrying out of their business rather than their relationship with the Authority as their landlord. He has suggested for example, credit management services to the tenants as a group, and possibly contracting with individual tenants to provide computer processing services.

Assuming the Requestor avoids any activity with the tenants while he is still an employee (see fn 1), the situation he presents is primarily a post-employment issue under §3-103(b) of the Ethics Law. This section prohibits former officials and employees 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 as an employee. As a general matter, this section has not been interpreted to flatly bar any employment with an entity involved in matters relating to a former agency, or an individual's appearance before the agency. Rather, it looks to identification of particular matters in which the individual was involved in any significant way in the context of their State employment, and forbids assistance or participation as to these on behalf of another party. There is no time limit on this prohibition.2

The general philosophical basis of the provision, at least in part, is the avoidance of "switching sides" and the use for another party of special knowledge acquired in the context of one's State employment. Another goal is to avoid situations where an individual may be seen to be using a State position to create a private employment opportunity. The Law defines specific conduct and participation as prohibited. Applying this prohibition in most situations involves the question of whether the matter is the same matter and whether the person's participation while an employee was significant. In applying the prohibition the Commission has generally viewed participation as including more than final authority or responsibility for a matter. Participation involving personal supervision of the work of others or involvement in a required sign-off or concurrence capacity are activities that have been viewed as significant participation. Providing advice and recommendations as to a matter is also participation.

As is usual in these types of situations, however, the primary question here is identification of the matter. The Ethics Law does not include a definition of the term "matter," though §3-103(b) itself refers to participation in a "case, contract or other specific matter." In several previous opinions involving interpretation of this concept, also, we have followed the approach reflected in predecessor statutes and opinions of advisory bodies, considering as a matter "any proceeding, application, submission, request for ruling or other determination, contract, claim, case, or other such particular matter." In this situation each of the current tenants has a lease with the Authority which incorporates certain operational rules and also reflects the obligations of the Authority as landlord of the Market. In our view, each of these leases constitutes a matter for purposes of the Ethics Law post- employment provision. Moreover, we believe that as Market Manager, the Requestor participated in each of these leases as matters by virtue of his responsibility for implementation of the Authority's functions and interaction with tenants regarding their compliance with the operational rules.

Section 3-103(b) therefore applies to limit the Requestor's future dealings with tenants of the Market, to the extent they would involve his assistance or representation of any tenant as to the current leases. More particularly, we advise that he may not undertake representation or assistance of a particular tenant or subgroup of tenants as to particular operational activities that are within the scope of the current leases. This would include, for example, assisting a tenant in a disagreement with the Authority regarding a security issue or representing a tenant in negotiations regarding a maintenance project being undertaken pursuant to the current lease.

The Requestor would also be barred by this provision from assisting or representing the tenants or tenants association as to issues pertaining to renewal or renegotiation of the current leases now being considered. Though the ultimate outcome of such a process would be a new lease, the issue is what action to take under the existing leases and their renewal option clauses, and the Requestor has participated in the current leases. Thus, the Requestor may not be involved with the tenants as a consultant or by otherwise providing assistance, if the tenants pursue a plan to organize as an association and negotiate a new master lease under which the association would allocate spaces, establish and implement operational rules, and carry out maintenance, security and related functions currently performed by the Authority. In our view this would entail his assistance or representation of the tenants as to the leases, which are matters in which he participated significantly as an Authority employee.

As noted above, however, section 3-103(b) does not totally bar any future employment or other relationships with entities with which one has dealt in the context of prior State employment. This provision would not, for example, serve to bar him as a general matter from coming into the Market as a former employee. Nor would it prohibit him from providing services to tenants that are unrelated to their relationship with the Authority. This may include, for example, provision of credit services or computer assistance to individual tenants or groups of tenants, to the extent that these types of services were not included as aspects of the Authority's lease arrangement with the tenants. Also, we have generally advised that where the terms and conditions of a contract are changed independently of the former employee or official, and there is actually a new contract, then any subsequent contract is a different matter.3 Thus, at some point in time, it may be possible for the Requestor to have a broader scope of action in matters relating to the tenants' activities. When this would be true would depend on the facts in existence at that time.

Mark C. Medairy, Jr., Chairman
    Michael L. May
    Robert J. Romadka
    April E. Sepulveda

Date: August 3, 1995

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1 The Requestor's current employment status with the Authority is not entirely clear, and was not a part of the advice request. As a result of a severance agreement providing for paid leave over a several week period it is possible that he technically remains on the Authority's payroll and is an employee during this transition, even though not providing any services. The Requestor should be aware that as long as he is technically viewed as an agency employee, he continues to be covered by the Ethics Law, including for example, the prestige and information provisions of 3-104 and 3-107. To avoid potential violation of the Law, he should therefore refrain from any activities involving the Market or its tenants while he continues on the Authority's employment roll.

2 For prior post-employment opinions, see Opinion Nos. 95- 2 (22:3 Md.R. 173, February 3, 1995), 92-11, 91-13, 91-2, 90-12, 89-11, 86-24, 85-14, 85-9, 84-33, 83-12, 82-24, 82-17, 82-3, 81-15, and 80-1. Except as cited to the Maryland Register, opinions are published in COMAR Title 19A.

3 See for example Opinions No. 89-11 and 92-11. Two opinions where representation under a subsequent contract was prohibited are Nos. 81-15 and 91-13. Also, Opinion No. 95-2 advised that an individual significantly involved in establishment of a private entity would face serious restrictions in subsequently being employed by the entity to carry out aspects of its grantee relationship to his agency.