97.05

OPINION NO. 97-05

An opinion has been requested as to whether and how the Ethics Law (State Government Article, Title 15, Annotated Code of Maryland, the Ethics Law) applies to a member of the Maryland Aviation Commission whose law firm represents construction contractors in matters before the agency. We advise based on prior opinions in this area, as well as the particular history of this situation, that the Law applies to bar service by this individual with the Aviation Commission if his law firm represents clients in matters before the Commission and the Maryland Aviation Administration, the State agency administered by the Aviation Commission.

The Maryland Aviation Commission was established in 1994, with nine voting members, eight appointed by the Governor with the advice and consent of the Senate. The ninth voting member is the Secretary of the Department of Transportation, who serves ex officio and is Chairman, and the Secretary of the Department of Business and Economic Development serves as a non-voting ex officio member. The Aviation Commission's duties include establishment of policies to improve and promote BWI Airport as an airport of service to the Washington-Baltimore Metropolitan area, approval of regulations for the operation of State-owned airports prior to adoption by the Executive Director of the Maryland Aviation Administration, provision of direction to the Administration in developing and implementing airport management policy for all State-owned airports, and consideration of information and advice from air carriers, airport concessionaires, the airport support services industry, and citizen advisory groups. The Commission appoints the Executive Director of the Aviation Administration (with the approval of the Governor), who works subject to the direction of the Commission in carrying out the powers and duties vested in the Administration and adopting and carrying out regulations. The Commission's primary focus is on the operation and management of BWI, where it has recently undertaken a major construction program.

The Member is an attorney appointed to a partial term on the Aviation Commission when it was established in 1995 and reappointed to a full term in 1996. At the time of his most recent appointment (March 1996) he filed a Time of Appointment Exemption Disclosure Statement pursuant to §15-502(c)(4) of the Law, indicating he did not request an exemption and disclosing no employment or interest relationships. Subsequently in February, 1997, the Member changed his employment and affiliated with a different Maryland law firm (the Law Firm). He indicates that he does entirely a real estate practice relating to real property acquisition, title issues, land development, and zoning matters. He says that he has no clients at this time that have any real estate activities relating to either BWI or Martin State Airport. He notes that though there is some significant commercial development around the airports that could entail activity by a real estate attorney, he has not been involved in any of this work.

The Law Firm is a moderate sized firm engaged in a general practice, with three attorneys who are involved in government contract matters that may involve the Member's Commission and Administration. The senior partner indicates that this type of work is not the bulk of or majority of their practice, and that the firm represents primarily local entities, generally dealing with an agency procurement officer. Their work involves mostly the State Highway Administration or Department of General Services, and occasionally involves an appearance before the Board of Contract Appeals, which is the appeal authority from decisions of an agency procurement officer. Though apparently the Law Firm has not had any dealings on behalf of a client directly before the members of the Aviation Commission, it does represent construction contractors that may receive a job at the airport through the competitive bidding process. Apparently the Law Firm has one client in particular that tends to be involved in airport activities as a subcontractor.

As a result of its representational and contract work the Law Firm has in recent years represented clients in three matters involving the Aviation Administration. The first involved an agency termination for default on a large construction project. The termination was appealed by the prime contractor and the Law Firm's client was a subcontractor on this contract. Apparently neither the firm nor the company made any appearances in the case or had any involvement with the appeal or issues leading up to the termination and the appeal, and the firm's role was solely to keep track of the matter for its client. A second matter relates to a bid protest filed in a small construction project where the second lowest bidder and winner of the award (as a result of disqualification of the low bidder) was a Law Firm client. As the winning bidder the firm's client was viewed as an interested party in the protest. The company was represented by a Law Firm partner, who participated at the hearing but did not file briefs or otherwise deal with agency staff. The third matter is a case involving a prominent local construction contractor that has several substantial contracts at the airport involving high dollar values. The recent matter involved the company's claim for damages/compensation for expenditures required by the company which it maintained were caused by actions and requirements of the agency. Apparently the matter was largely resolved by program personnel, though the documents in the matter reflect a Law Firm partner as the attorney of record. We note also, that this client has a substantial current presence at the airport in a variety of construction activities that could present potential litigation.

This request presents issues under the outside employment provisions of §15-502 of the Ethics Law. This section prohibits officials and employees, including members of boards and commissions, from being employed by or having an interest in an entity that contracts with or is negotiating a contract with their agency (subsection (b)(1)), and from having any other employment that would impair their impartiality or independence of judgment (subsection (b)(2)). We have considered application of these provisions to individuals serving on boards who are attorneys affiliated with private law firms on several occasions. We have, for example, advised that a firm's representation of an applicant for a MIDFA loan constituted negotiation of a contract for purposes of this provision, declining to allow an exception, and advising that disqualification from participation as a MIDFA member would not cure the conflict (Opinion No. 80-3).

This general advice that this provision of the Ethics Law "proscribes the law firm's representation so long as the Member retains his position," was subsequently reiterated in a situation involving the Chairman of the State Board of Universities and Colleges (Opinion No. 86-15). The attorney in this situation was advised that the Law's employment prohibitions barred his affiliation with a law firm that was counsel to a contractor in a construction project at one of the Board's colleges. Neither the Time of Appointment exemption nor the regulatory exception (both included in §15-502) were found to apply. Though this situation involved direct Board approvals of procurement documents and contracts, and substantial negotiating interaction between the individual's law firm and agency attorneys and other staff, the opinion includes a discussion of the Commission's appearance and general perception concerns in these kinds of situations, and also reiterates the Commission's adherence to its predecessor Board of Ethics view "that when a lawyer member of a State board or commission is also a member of a private law firm, that firm cannot in any way represent anyone with respect to matters pending before that board or commission so long as the lawyer member retains his position."

We recognize that the Member here has not been directly involved in his firm's dealings with his agency, and that the Law Firm itself has not appeared directly before the Aviation Commission. We believe, nevertheless, that our prior interpretations and approach to situations involving attorneys serving on State commissions is appropriately applied in this situation. The Aviation Commission is responsible for approving and making recommendations regarding capital projects that involve substantial and important work at a facility that plays an important role in Maryland's transportation and economic programs. At least one of the Law Firm's clients apparently does substantial work at this facility, and another involved in a prior case is a major and visible contractor at the airport, where it could reasonably be anticipated that it would be involved in future disputes. Also, though these matters may not be considered in detail by the Aviation Commission, a primary role of the Commission is to direct the activities of the Executive Director and Administration staff, and it is apparent that Administration staff are involved in regular interaction with construction contractors, and possibly with their attorneys, should issues arise regarding important capital projects.

The Ethics Commission's general principles articulated in prior opinions suggest that any appearances or direct dealings by the law firm of a member of a board or commission with the member's board or commission present concerns under the employment provisions of the Law and should be avoided in order to prevent appearance concerns and to ensure that agency staff activities are not impacted by the need to interact with law partners and others with whom board or commission members are affiliated. Taking this approach into account in view of the circumstances of this situation, we believe that the Member's continued service on the Aviation Commission while his firm represents and anticipates continuing to represent clients in matters involving the Aviation Commission and Administration would be inconsistent with the employment provisions of the Ethics Law.1

Mark C. Medairy, Jr.,
    Robert J. Romadka,
   April E. Sepulveda

Date: June 5, 1997

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1 Note that the Time of Appointment exemption authorized by §15-502(c)(4) would not appear to apply here, since the employment relationship did not exist at the time the Member was appointed and there was no disclosure. Nor do we believe that the circumstances here warrant a conclusion under the regulatory exception in §15-502(c) that the situation presents no conflict or appearance of conflict. Other possible exemptions must be based on a written request from the agency, and to some extent, the recommendation of the Governor, and are not presented for consideration here.