99.04

OPINION NO. 99-04

The Mass Transit Administration has requested Ethics Commission advice as to whether a former Director of Planning and Programming for the Administration (the Former Employee) may be employed by and act on behalf of an agency contractor on a preconstruction planning project for the Federal Railroad Administration-sponsored (FRA) Magnetic Levitation Deployment Program (Maglev). We advise based on the information provided regarding this project and its history that the current project need not be viewed as the same matter as previous activities by the Administration in which the Former Employee significantly participated. The post-employment limitations of §15-504(b) of the Public Ethics Law (State Government Article, §15-504(b), Annotated Code of Maryland, the Ethics Law) therefore do not apply to bar his work for the contractor.

In 1992, with a grant from the FRA, MTA conducted a Maglev study to consider the feasibility of developing a Maglev project in the Baltimore-Washington Corridor. According to the Former Employee, at that time the federal agency was considering the development of unique American technology in this field. This initial contract effort involved a private consultant (the Contractor) and was managed by the Former Employee, then Manager of Project Planning in MTA's Transit Development Division. The project was a theoretical but comprehensive approach to considering the feasibility of Maglev in the region, assessing alternatives, identifying potentially promising routes and focussing on right-of-way needs, environmental effects and mitigation, ridership, revenues, capital and operating costs, and cost effectiveness. According to the Former Employee, no specific approach resulted and there was no anticipated direct follow up from the effort. The study (described generally as "the 1994 study"), though it reflects some general expectation of future activity, describes the effort as a "broad feasibility analysis." It concludes that any of four possible alignments studied would likely meet the federal criteria at the time, specifically rejecting the idea that it will select a particular technology or even a particular alignment for a Maglev project in the Baltimore-Washington Corridor.

Federal action on the Maglev program was apparently under consideration for several years and the decision to move forward based on transfer of available technology was made in 1998 and reflected in the provision for the program (including substantial funding) in §322 of the Transportation Equity Act for the 21st Century (TEA-21), passed in May 1998. This Act envisioned a very fast time frame for program implementation, and FRA, in addition to outreach meetings in July 1998, issued Final Interim Rules for the program in October 1998 including a grant application submission date of December 31, 1998 (later extended to February 15, 1999). With various intervening deadlines for award of the initial planning grants, completion of project description development by the grantors, selection by FRA of a single project for actual construction and implementation, and completion of project development and a site specific Environmental Impact Statement, the program anticipates the beginning of actual construction and implementation of the project in August 2001.

According to the Former Employee and other MTA staff, given the substantial costs related to Maglev, it was being driven solely by federal initiative, and after completion of the 1994 Study the agency had no role or involvement in the federal consideration of this program. The Former Employee indicates that his office was unaware of anticipated action by the Congress until enactment of TEA-21 in May 1998. Apparently, however, based on its previous study and consideration of the Baltimore-Washington Corridor as a likely candidate for such a project, the MTA was able to move very quickly to get into the program, initiating its contract action in October 1998. The Contractor submitted its technical proposal in January 1999, with a cost proposal in March 1999 (later amended). The agency subsequently selected the Contractor as its consultant to carry out this initial part of the program, with anticipated submission to the Board of Public Works after official grant decision is made by the FRA under its regulations.

The Former Employee left the agency and the State in July 1998, accepting employment with a Florida consultant. He states, and this is confirmed by the agency, that except for attendance at FRA's July public meeting a few weeks before leaving the agency, he had no involvement whatever in development of the RFP or the grant application, or the evaluation and selection of the Contractor as the agency's consultant for the project. Due to company merger and reorganization of the Florida company, the Former Employee left the company on February 8, 1999 and subsequently returned to Maryland, where he became aware of opportunities at the Contractor. He states that the Contractor's proposal for the Maglev work had been submitted prior to his return to Maryland, and he played no role with the firm in its presentation and successful submission for the work. He began employment with the firm in May 1999.

As noted, the initial project in 1992 is described as primarily a theoretical feasibility study whose purpose was generally to figure out if development of this type of technology is possible in the Maryland situation. The MTA considered it as a background source document for the current project and reviewed it as part of the determination to seek to participate in the current project. Both the Former Employee and current agency project managers, however, suggest that the 1994 study is not a starting point for what is happening now. They advise that the current project is a very practical undertaking to actually select a route and alternative technology that is available now and create a detailed project description that will address all of the environmental, marketing and technological issues. The 1994 study is referenced and is expected to be useful simply as information that was collected and can be taken advantage of, but not as a first phase or beginning document for the current project.

The issue presented here arises under the post-employment provision of §15-504(b) of the Ethics Law.1 This provision bars a former employee from assisting or representing a party other than the State in a matter involving the State if the matter is one in which he participated significantly while an employee. As a general matter, this section has not been interpreted to flatly bar any employment with an agency contractor or entity involved in a matter relating to the former agency, or the individual's working on matters or appearing before the former 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 representation as to these matters on behalf of another party. 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.

The Ethics Commission has issued several opinions providing post-employment advice, particularly regarding the concept of a matter. In these and in related participation provisions in the Ethics Law (§15-501), this term has been interpreted (consistent with the approach of the Commission's predecessor agency, the Board of Ethics) to include any proceeding, application, submission, request for ruling or other determination, contract, claim, case or other such particular matter (Opinion No. 97-132). We have also, taking account of substantial federal case law relating to very similar federal requirements, considered whether a matter involves the same basic facts, related issues, the same or related parties, the time elapsed, the same confidential information, and the continuing existence of an important government interest (see Opinion No. 97-11). In a 1987 enforcement matter, for example, it was 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.

On the other hand, §15-504(b) specifically refers to participation in a "case, contract, or other specific matter," and past advice has thus also tended to recognize that where there is a new and intervening contract action with changed requirements and new bidders, there is likely to be a new matter. Opinion No. 89-11, for example, involved the State's inmate health services contract and a former employee who had been involved as a monitor under the contract. He was told he could not be employed as a doctor for the contract vendor, but later advised that he could work for a vendor once the original contract ended and there was a new procurement.

In the situation here, there is no information suggesting that the Former Employee participated in the contract action that led to the Contractor's selection as MTA's consultant for the Maglev activity mandated by TEA-21. He attended an FRA public meeting a week before he left the agency and otherwise had no involvement or role in either the grant application, preparation of the RFP, or evaluation and selection of the Contractor. This particular contract thus appears not to be a matter in which he participated significantly as an employee. Moreover, we do not believe, based on the information provided, that the current project is the same matter as the original 1994 study in which the Former Employee did participate. Though the 1994 study appears to have some relevance for the current effort, agency staff strongly maintain that it should do not be viewed as a source or beginning document for the current effort. Moreover, there are two separate contracts here, which even though they have the same vendor, resulted from two separate and independent procurement actions. Also, there have been intervening federal legislative and regulatory actions taken that, according to the Former Employee and the agency, have redefined and redirected the project from a very theoretical feasibility study to actual design and creation of a functional operational transportation project.

Under all of these circumstances we conclude that the current project as contracted to the Contractor under TEA-21 and through the 1999 procurement, is not the same matter as the original 1992-1994 project in which the Former Employee participated. The post-employment limitations of §15-504(b) of the Ethics Law thus do not apply to bar his assistance or representation of the Contractor in its activities relating to the current Maglev program.

Charles O. Monk, II, Chair,
    Dorothy R. Fait,
    Michael L. May,
    April E. Sepulveda

Date: July 9, 1999

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1 Section 15-508 of the Law bars an entity from bidding on or submitting a proposal in a procurement if an employee of the entity assisted in drafting specifications for the procurement. We do not believe that the Former Employee's attendance at the FRA meeting and provision of materials to his agency involved his assisting in drafting specifications for the procurement. We thus conclude he was not involved in the specification document for the Maglev contract that was generated after he left the agency, and that the facts as provided therefore do not suggest any basis for application of §15-508 to this situation.

2Opinions published in COMAR Title 19A.