04.02

OPINION NO. 04-02
MARYLAND TRANSIT ADMINISTRATION

September 23, 2004

The Maryland Transit Administration ("MTA"), by its General Counsel, has asked the Ethics Commission to allow the MTA Chief of Environmental Programs (hereinafter "Employee") to participate in project matters where a party to those matters is a Vendor, under general task order contracts or subcontracts that employs the Employee's adult son. Based on the specific circumstances of this situation and the assurance of the agency that the Employee is not involved in procurement, evaluation of bid proposals, or approval of change orders in any matter in which the Vendor may have an economic interest, we advise that an exception may be applied to allow the Employee's participation.

The MTA is a modal unit of the Maryland Department of Transportation. It is responsible for providing public transportation and operates the Baltimore Metro subway system, the Central Light Rail Line, and the Maryland Commuter (MARC) Rail Passenger Service train. It also has a bus operations program that provides fixed route bus services in the Baltimore metropolitan area and surrounding counties. Additionally, it provides transportation for disabled individuals through specially equipped mobility vans.

In order to carry out its responsibilities, the MTA is organized into three main divisions. The Operations Division is responsible for the day-to-day operation of the public transportation system, including rail and bus scheduling and maintenance. The Finance and Administration Division is responsible for fiscal accounting, information technology, procurement and contracts, marketing, and training related to the operation of the transportation systems. The third division is the Planning and Policy Division. This division includes an Office of Planning responsible for overseeing the planning of capital improvement projects for the public transportation system. It includes an Office of Engineering and Construction that oversees the engineering and construction management of existing and new facilities and transportation systems.

The Employee is a career State civil servant who was appointed to his present position in October 2003 and who expects to retire in two to three years. His position is located in the Office of Planning in the Planning and Policy Division under the Deputy Administrator for Planning & Policy. At the present time, he has no professional staff assistance and shares support staff. He is tasked with the responsibility of assessing the environmental viability of MTA projects and coordinating with State and federal environmental agencies on behalf of MTA to facilitate and ensure compliance with regulations and programs. The Employee reviews transit projects and proposed projects for water quality, air quality compliance, and other environmental mitigation.

MTA has a variety of on-going and planned improvement projects and studies to improve the public transportation system. A project under study is the Maglev Project, which is a proposed 40-mile long rail system to link Baltimore to Washington, D.C. utilizing magnetic levitation technology. Other projects include improved track work design, fare collection equipment, digital equipment usage, and other systems technology improvement. In order to develop and evaluate these projects, MTA contracts with various consultants and subcontractors.

The Vendor is a large international planning, engineering, construction, and management corporation. It currently operates in 46 states and 37 foreign countries with more than 9,000 employees. It is organized into four global business units: Commercial Technology, Infrastructure & Technology, Water and Infrastructure, and Transportation. At the present time, the Vendor's Transportation Business Unit is a contractor or subcontractor on eight contracts with MTA. These contracts are generally task order contracts allowing MTA to make specific assignments to the Vendor as required. The contracts provide for such activities as transportation planning, design and construction, fare collection equipment and system engineering services, and maintenance and improvement programs. MTA expects that the Vendor will continue to contract with MTA or be a subcontractor under other MTA future contracts and projects. Although the project ideas and studies may arise from the Office of Planning activity, contracts are procured through the Office of Contracts in the Finance and Administration Division and are implemented by the Engineering and Construction Section. MTA has represented that the Employee has had no responsibility or control for contract awards to the Vendor and no authority to issue task or purchase orders, or to approve contractors for MTA projects.

The Employee's son is a mechanical engineer employed for the past five years by the Vendor. He is employed in the Infrastructure & Technology Business Unit and is working on a long-term contract at the National Aeronautical Space Administration ("NASA") at its facilities at Goddard Space Flight Center in Maryland. The Vendor's contract with NASA is for eight years with the possibility of seven one-year extensions. The son is working solely at Goddard on NASA buildings. He does not work on any other project for the Vendor and has not had any dealings with MTA or its employees.

The Maryland Public Ethics Law, Md. Code Ann., State Gov't Title 15 (Supp. 2003) provides in part at §15-501(a) that an official or employee of the State may not participate in a matter if a party to that matter is a business entity that employs the official's or employee's spouse, parent, child, brother or sister.1 However, §15-501(b) of the law allows us to grant exceptions by opinion.2 This request presents issues under §15-501(a) and we find it applies to this situation and would prevent the Employee from participating in meetings and matters involving his son's employer on various projects. After a full review of the facts, we conclude that the present situation is sufficiently remote to allow an exception. We looked at the kinds of factors considered previously in allowing exceptions in Opinions No. 90-2 and 90-15. The Employee's son is not a high-level manager or policy maker for the Vendor. In his present circumstances, he does not have an ownership interest in the Vendor. He works in a division of the Vendor that has not done business with MTA in the past and is unlikely to be involved in MTA procurements and contracts in the future. He has not worked on any projects involving the MTA, and his work site is located at a federal facility unrelated to the MTA. The Employee is not in a position in MTA to economically benefit the Vendor. He has no authority to issue purchase orders or approve contractors on his projects. Additionally MTA has removed him from any procurement selection or evaluation committees where the Vendor may be bidding to perform work. We are also advised by the agency that with these guidelines in effect, there is no potential for a conflict of interest or the appearance of conflict.

We conclude, therefore, that under these particular facts, the Employee may participate in project activity where his son's employer is a vendor to the agency. This exception will need further review should the Employee or his son change positions with their respective employers or be assigned additional responsibility or authority in any interaction between the MTA and the Vendor.

 Dorothy R. Fait, Chair
    Ava S. Feiner, Ph.D
    Julian L. Lapides
    Robert F. Scholz

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1 Section 15-501(a)(1) prohibits an official or employee from participating in a matter if the official or employee or a qualifying relative of the official or employee has an interest in the matter. Section 15-501(a)(2) also prohibits participation by an official or employee in six defined situations where a business entity has certain relationships to the official, employee, or a qualifying relative of the official or employee. Section 15-102(gg) defines "qualifying relative" to mean "a spouse, parent, child, brother, or sister" of an official or employee.

2 See Opinion Nos. 90-15 and 90-2.