09.01

OPINION NO. 09-01

The Finance Director of the Maryland Transit Administration ("MTA") has requested an advisory opinion pursuant to §15-501(b)(ii) of the Maryland Public Ethics Law, Md. Code Ann., State Gov't Title 15 (2008 Supp.) to allow his participation in matters involving a passenger rail carrier (hereinafter "Carrier") that employs the Finance Director's brother. Based on the facts presented, the remoteness of the situation, and the MTA's contract negotiations and review procedures, we advise that the Finance Director may participate in matters involving the Carrier.

MTA is one of the modal administrations of the Maryland Department of Transportation and operates and maintains the State's public bus, subway, and rail systems. MTA provides commuter rail services called Maryland Rail Commuter Service or "MARC". MARC is operated under contract with the Carrier and another rail-based transportation company. The State of Maryland owns the actual MARC trains, engines, and cars; however, the trains are operated by, maintained by, and operate on lines owned by the Carrier and the other rail-based transportation company.

The Finance Director's brother works for the Carrier and is a maintenance service supervisor for a specific type of the Carrier's trains and does not have duties related to MARC trains, MTA, the Maryland Department of Transportation, or the State of Maryland. The Finance Director's brother works in a facility in Washington, DC.

In his MTA position, the Finance Director has duties that may involve the Carrier. His unit processes invoices from the Carrier and, while his staff processes the actual invoices, the Finance Director may be asked to deal with problems that arise with a particular invoice. In addition, MTA has asked the Finance Director to be a member of the team that negotiates with the Carrier regarding MTA's MARC contract with the Carrier. Historically, MTA's negotiation team has included a senior finance employee. The team also includes a senior manager in MTA's Transit Operations Division, the Director of MARC Commuter Services, an outside legal consultant, and an outside rail consultant. The contract negotiation and approval process includes many steps and approvals. The negotiation team negotiates with representatives of the Carrier. During the negotiations, a member of the team regularly briefs the MTA Administrator and the Deputy Administrator for Finance and Administration on the negotiation activities. After negotiations are completed, the contract must be approved by MTA's Contracts Department, its Legal Department, its Deputy Administrator for Finance and Administration, and its Administrator. Next, the Secretary of Transportation must approve the contract. Finally, MTA presents the contract to the Board of Public Works for its review and approval. The Finance Director serves as the finance representative on the negotiation team. In addition to participating in contract negotiations, if a contract issue or dispute arises related to a financial matter, MTA may ask the Finance Director, as a member of the negotiation team, to provide data, support, and recommendations to attempt to resolve the dispute.

Section 15-501(a) of the Ethics Law provides in part that an official or employee may not participate as a State employee or official 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 ("qualifying relatives"). In this request, we find that §15-501(a) would prohibit the Finance Director from participating in matters involving the Carrier.

However, the law allows us to grant exceptions to this participation restriction by opinion. We have granted exceptions in situations where we found that the overall circumstances and relationships were sufficiently remote to warrant an exception. 1 Factors we have considered in evaluating the remoteness of the circumstances and relationships include:

The nature of the qualifying relative's employment;

The nature of the relationship between the employee and the qualifying relative;

The geographical distance between the employee and the qualifying relative;

Any prior issues related to the employee's participation in the matter;

Agency controls and safeguards;

Any involvement by the qualifying relative in the matter involving the employee; and

The nature of the employee's participation in the matter in relation to the employee's overall duties.

We have reviewed this request and analyzed the remoteness of the situation using the factors we have considered in prior opinions where we have granted an exception. In this instance, the brother is a maintenance supervisor for the Carrier and has no duties related to MARC service, MARC trains, MTA, or the State of Maryland. The Finance Director and his brother do not live in the same household and do not have joint assets or debts. His brother does not have an ownership interest in the Carrier. MTA does not currently and does not anticipate utilizing the type of train the Finance Director's brother maintains.

Therefore, we conclude that the circumstances and relationships here are sufficiently remote to grant the Finance Director an exception to allow his participation in matters involving the Carrier that employs his brother. We will need to review this exception further if the Finance Director or his brother change positions with their respective employers. MTA should monitor the situation and, should any issues or concerns arise, contact us for further review.

Robert F. Scholz, Chair
Julian L. Lapides
Janet E. McHugh
Jacob Yosef Miliman
Paul M. Vettori

May 28, 2009

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#1 See Opinion Nos. 90-2, 90-15, 04-02, 05-01, 05-02, and 07-02.