09.02

OPINION NO. 09-02

An engineering manager (hereinafter "the Manager") for the Maryland Transportation Administration (hereinafter "MdTA") has requested an advisory opinion pursuant to Maryland Public Ethics Law, §15-501(b)(ii), Annotated Code of Maryland, State Government Title 15 (2008 Supp.) to allow his participation in matters involving an engineering firm (hereinafter "the Engineering Firm") that employs the Manager's mother. Based on the facts presented, the remoteness of the situation, and the preventative measures MdTA has adopted, we advise that the Manager may participate in matters involving the Engineering Firm.

MdTA is an independent State agency responsible for the supervision, financing, construction, operation, maintenance, and repair of transportation facilities projects in the State, including the State's toll facilities and certain highways, bridges, and tunnels.

The Manager has job responsibilities related to the planning, development, design, construction, maintenance and operations of existing and new intelligent transportation systems and electrical systems. Of importance in this matter, he supervises engineering project managers and manages approximately seven intelligent transportation systems consultant contracts. 1 These contracts involve designing new intelligent transportation systems or upgrading existing systems for MdTA.

The Engineering Firm is a subcontractor on one MdTA's intelligent transportation system contracts (hereinafter "the Contract"). The Engineering Firm is anticipated to perform approximately $120,000 of work on a $4 million contract. The Engineering Firm's work will ensure that intelligent transportation systems and related physical support structures and structurally sufficient and secure. The Contract is a task order contract and no work has been awarded to the Engineering Firm under the Contract as of the date of this request and opinion.

The Manager's mother is a part-time, contractual employee of the Engineering Firm and works approximately three to six days per month in a division of the Engineering Firm that is not involved in contracts with MdTA. She is not a principal in the Engineering Firm. Her job duty is to assist the Engineering Firm in material sampling. She travels to the supply source, takes a sample of material (such as paint, salt, construction materials) and sends the sample to a State laboratory for compliance testing. She completes forms regarding the procedures followed during the sampling and her witnessing of the process. Material sampling occurs during the construction phase of a contract. Similar sampling is not performed for electrical supplies used in the Contract.

The Manager has duties related to assigning work to subcontractors on the Contract, including the Engineering Firm. Although he will have contact with the Engineering Firm, the Manager does not have final approval regarding assignment and other matters under the Contract. Engineers that the Manager supervises, as well as his supervisors, will also have contact with subcontractors, including the Engineering Firm. MdTA officials do not have concerns about the Manager's participation in the Contract or with matters involving the Engineering Firm because of the remoteness of the relationship and the safeguards MdTA has adopted. The Manager's supervisor will review and sign invoices from the Engineering Firm and deal with representatives of the Engineering Firm in the event of any dispute over the work conducted by the Engineering Firm on the Contract. The Manager will have general oversight on the Contract and dealings with the contractor and the subcontractors, including the Engineering Firm.

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 Manager from participating in matters involving the Engineering Firm because of his mother's employment.

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. 2 In evaluating the remoteness of the circumstances and relationships, we have considered the following factors:

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 relationships and circumstances using the factors we have considered in prior opinions. In this instance, the Manager's mother is a part-time, contractual employee of the Engineering Firm with duties limited to witnessing and assisting in material sampling. She has no duties related to the Contract with MdTA or with the division of the Engineering Firm that has duties related to the engineering contract with MdTA. The Manager and his mother do not live in the same household and do not have joint assets, investments, or debts. His mother does not have an ownership interest in the Engineering Firm. The Contract does not include or require material sampling. Finally, MdTA has taken steps to prevent any impairment or appearance of impairment by providing that the Manager's supervisor will review and sign invoices involving the Engineering Firm and handle any disputes involving the work performed by the Engineering Firm.

Therefore, we conclude that the circumstances and relationships here are sufficiently remote to grant the Manager an exception to allow his participation in matters involving the Engineering Firm that employs his mother. We will need to review this exception further if the Manager or his mother change positions with their respective employers or if MdTA's relationship or business interactions with the Engineering Firm change. MdTA 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

August 13, 2009

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#1 According to the website of the United States Department of Transportation, "intelligent transportation systems" are "wireless and wire line communications-based information and electronics technologies" that are used to improve "transportation safety and mobility." http://www.its.dot.gov/faqs.htm

#2 See Opinion Nos. 90-2, 90-15, 04-02, 05-01, 05-02, 07-02, and 09-01.