A question has been presented as to whether and how the post-employment provisions of the Ethics Law apply to the proposed representation by the former Chairman of the Maryland Stadium Authority of the Baltimore Ravens football team in its lease negotiations with the Authority. We advise based on the information provided and our previous application of the Law that this activity as described would be barred by the post-employment limitations of §15-504(b) of the Ethics Law.
The Maryland Stadium Authority was established in 1986 to select a site for new sports stadiums in the Baltimore metropolitan area, and to acquire, construct and operate these facilities. The Requestor was appointed as the Authority's first Chairman. A site at Camden Yards in downtown Baltimore was selected and approved by the Legislature in 1987, and the Authority entered into a Memorandum of Understanding with the Baltimore Orioles, which defined the terms of the arrangement between the Orioles and the Authority during the construction period and first year in the new facility at Camden Yards. Among other things, the agreement included a provision regarding joint usage of the Camden Yards complex in cooperation with any tenant of a proposed football stadium, defined the minimum requirements for the stadium anticipated to be built, and provided for the subsequent execution of a more formal agreement incorporating the minimum requirements and setting forth the provisions of the agreement in more detail.
The stadium was built at Camden Yards and subsequently a more detailed lease agreement as required by the Memorandum was executed in 1993, basically providing for the Orioles to play at the stadium and to pay rent according to a formula that takes into account total revenues and the fact of payment of an admissions tax. The Authority undertakes to handle operation and maintenance of the facility. The agreement includes provisions relating to: description of the Camden Yards site, the lease term, construction obligations, rent payments, uses of the facility, concessions, parking, maintenance and operations, private suites, scoreboards and related systems, advertising and announcements, security, insurance, and a variety of contract administration provisions.
The lease agreement also includes several provisions acknowledging the potential for sharing of the Camden Yards complex with a football tenant, dealing with scheduling priorities and concessionaires, and including a section regarding rent abatement and lease modification to achieve parity (section 4.07, the "parity clause"). The key language of this section is the provision that if the Authority enters into an arrangement for a landlord-tenant relationship with a football team, then a copy of the lease shall be provided to the Orioles and, "if the Orioles believe in good faith that such lease or equivalent arrangement provides such tenant or team with terms (including without limitation rent and other terms) that are not fairly comparable to those accorded to the Orioles in this Agreement, then the Orioles may request in writing that MSA modify this agreement to accord the Orioles what the Orioles in good faith believe to be fairly comparable terms." Disputes regarding this provision are subject to arbitration in accordance with the provisions of the agreement.
In 1993 the Authority, with the Requestor still serving as its Chairman, became involved in efforts by the City of Baltimore and the State to return professional National Football League football to the City. After the NFL announced that it would expand to include two additional teams, the Authority put together an expansion proposal, developed with the involvement of the Requestor, attorneys and consultants. The proposed football terms, differing somewhat from those involving the baseball stadium, provided for construction by the Authority of a new football only stadium, provision of training facilities by the Authority, and a 30-year lease term. The proposal (at all times negotiable) provided for use of the stadium rent-free, with payment in lieu of rent by the team owner of the operating and maintenance costs. In addition to the basic provisions (such as concessions, advertising, scoreboards, private suites), the proposal includes a provision addressing the joint use of the Camden Yards Complex with the Orioles, and requiring cooperation regarding scheduling conflicts and harmonious use of the complex, including parking areas.
The City's expansion effort ended in 1993 and early 1994 with the selection by the NFL of Charlotte and Jacksonville as its franchise locations. The Authority, prior to the Requestor's departure, approached other teams in cities where a team was possibly for sale, though none of these situations succeeded. After the Requestor left the Authority in 1995, and partly as a result of Legislative and Gubernatorial actions regarding funding, the search for a team was expanded to include conversations with football teams in other cities wanting to relocate, but not necessarily to change ownership. This resulted in an announcement in October 1995 of an agreement between the Authority and the then-Cleveland Browns that the Browns would relocate in Baltimore. They have done so and are now the Baltimore Ravens. A Memorandum of Agreement of the same date defined the basic understanding of the parties very like the original arrangement with the Orioles in 1988, including provisions regarding construction, stadium uses, lease terms, concessions, parking, advertising, private boxes, and contract administration terms.
The Ravens arrangements differ in some ways from those in the original expansion proposal developed by the Requestor, particularly as to the provision for permanent seat licenses, provisions regarding revenues from non-football events, and concessionaire and training facility provisions. Like the Orioles agreement, however, the Ravens Memorandum provides for subsequent negotiation of a formal more detailed lease agreement. These negotiations for the formal lease agreement are just beginning. Counsel for the Authority has indicated that the general outline of the Orioles lease is basically a starting point for the document. The Counsel indicates further that the parity clause in the Orioles lease is expected to be an ongoing consideration. The Counsel notes that there are some current discussions with the Orioles, and it is anticipated if these become more formal that as the former client involved in negotiation of the Orioles agreement, the Requestor would likely be called as a witness in any litigation.
The qustion presented here involves application of the post-employment provision of §15-504(b) of the Public Ethics Law (State Government Article, §15-504(b), Annotated Code of Maryland, the Ethics Law), which prohibits a former official 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. Though he was not compensated for his service as Chairman of the Stadium Authority, the Requestor was clearly a public official of the State and as a former official is subject to the limitations of §15-504(b).1 As a general matter, this section has not been interpreted to flatly bar all 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 service, and forbids assistance or participation as to these on behalf of another party. There is no time limit on this prohibition. The provision, at least in part, is designed to avoid "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.
In our view, from the circumstances of this situation it is clear that the Requestor participated significantly in development, adoption and execution of the Orioles lease, as well as in the expansion proposals that were developed for submission to the NFL and became the basis for subsequent negotiations with other parties. He and the agency's current Counsel indicate that he was involved in all meetings relating to these matters and worked closely with agency attorneys and consultants in defining the language, policy and general approach of the State to the Orioles lease and to the fundamental proposal that would be offered in the recruitment of a football team. The Requestor is a former official who proposes to represent a party other than the State in a matter involving the State, and he also clearly participated significantly in certain identifiable matters relating to the Stadium Authority and its lease arrangements with sports teams that are or were being recruited as tenants at the Camden Yards complex. The question here is thus identification of the matter, and whether the Requestor's proposed activity involves fully or partially the same matter or matters in which he participated as Chairman of the Authority.
We have issued several opinions providing post-employment advice, have considered these issues in enforcement matters, and have taken account of substantial federal case law relating to very similar federal requirements.2 The resulting basic criteria that we have considered in applying this provision are whether a matter involves the same matter as a previous activity, whether it involves "the same basic facts, related issues, the same or related parties, time elapsed, the same confidential information, and the continuing existence of an important [government] interest." As a particular example, in a 1987 enforcement matter (which was sustained by the Court) the Commission concluded that a property tax assessment for one year in which a former supervisor of assessments did not participate was nevertheless the same matter as a prior year assessment, since the key issue being contested by the former employee was one where he had been instrumental in the initial policy development.3
We are aware that in the situation here there has been some time elapsed since the Requestor was involved in Authority activities, and that the Ravens agreement involves a client not involved in the Requestor's State activities. We also recognize that the current Memorandum of Understanding that is a likely basis for a new agreement was generated after the Requestor left the Authority and has some significant differences from the early prototype football agreement developed in part by the former Chairman. Nevertheless, we believe that we must conclude that his participation on behalf of the Ravens in the current negotiations would entail his involvement on behalf of another in a matter in which he participated as an official of the State. It is clear from the information provided by the Authority that this agreement is being based in substantial part on the Orioles agreement, with the basic outline and many of its specific provisions closely following those developed by the Requestor in his role as Authority Chairman. Also, though there are differences as to the Ravens specifically, many of the fundamental terms of the transaction mirror those proposed for expansion that were generated under the Requestor's direction.
Moreover, we are convinced that the inclusion of the parity clause in the Orioles agreement makes the meaning and the interplay between these two agreements a factor in the ongoing lease negotiations. We understand that the Requestor believes that the parity clause is narrow in scope and that this resolves any concerns in this regard. We do not, however, purport in any way to interpret or apply the parity clause in the context of these transactions between the Stadium Authority and the Baltimore sports teams. We are concerned, rather, that the very existence of this clause necessarily so intertwines these two transactions that the Requestor's involvement in interpretation of the Orioles lease would be unavoidable if he were representing the Ravens in the current negotiations. In fact, it has been clear that even in the context of this opinion review the meaning and application of this clause for the Ravens agreement has been an unavoidable discussion point.4
Under the circumstances, we therefore advise the Requestor that his representation of the Ravens in negotiation of its lease with the Stadium Authority is prohibited by the post-employment provision of §15-504(b) of the Ethics Law. We note, however, as is discussed above, that the Law does not generally prohibit all affiliations with entities involved with one's former State agency. Other representation by the Requestor of the Ravens that does not deal with the lease or other specific matters involving determinations or decisions in which the Requestor significantly participated as Authority Chairman would not be barred.
Michael L. May, Chairman,
Mark C. Medairy, Jr.,
Charles O. Monk, II,
April E. Sepulveda
Date: August 27, 1997
1 Note that §15-103(b)(3) specifically includes members, appointees and employees of the Authority in the definition of public official.
2 See, for example, Nos. 95-10, 95-2, 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.
3 See also Opinion No. 95-2, which advised that an individual who was significantly involved in program development that resulted 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, and No. 91-2, which involved an individual who participated in an initial decision regarding toxic waste cleanup requirements for a particular site and was advised many years later that he could not represent the private party as to those cleanup requirements.
4 Because we believe that this concern determines the answer to this request, there is no need to further discuss or provide guidelines as to other possible areas of past official involvement that may have limited representation on behalf of the client if this could have been allowed.