12.01

OPINION NO. 12-01

An employee of the State Highway Administration (“SHA”) 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 (Supp. 2011) to allow his participation in matters involving a utility provider and contractor (hereinafter “Provider”) that employs his brother. Based on the facts presented, the remoteness of the situation, and the SHA’s policies and procedures, we advise that the employee may participate in matters involving the Provider.

The Requestor is the Team Leader for a district for the Office of Traffic and Safety within SHA.SHA is one of the modal administrations of the Maryland Department of Transportation and operates and maintains the State’s highways.He has worked for SHA for twenty-three (23) years.The Team Leader’s duties involve supervision of inspection teams on traffic signal and lighting projects.The Team Leader’s brother is employed by the Provider in the Customer Relations and Accounting Services Division as a Manager of Strategic Customer Planning.

The Team Leader reviews invoices submitted to SHA from contractors on projects related to traffic control construction costs and utility bills.After he reviews invoices, he forwards the invoices to the Chief of Inventory.Following the second review and approval, the invoices are sent to SHA Headquarters for final approval.

The Team Leader stated that he does not have any discretion related to matters involving the Provider. He does not make determinations regarding the location where work will be done.The SHA Traffic Engineering & Design Division determines the location of new traffic signals and forwards the application for power to the Provider. The Provider sets the rates and assigns its work crews. The Provider is the only power supplier in the district where the Team Leader is assigned.The Team Leader estimates that approximately 2% of his work for SHA involves the Provider.

SHA has no concerns about the Team Leader’s participation in the SHA projects involving the Provider.The review of the Provider’s invoices submitted to SHA is a small portion of the Team Leader’s duties and he does not have final approval of these invoices.The Team Leader will have supervisory duties of district crews working with the Provider on traffic signal and lighting projects.SHA will continue to monitor this situation and contact the Commission for additional advice if the Team Leader’s brother is assigned to a different division of the Provider that has interaction with SHA.

The Team Leader’s brother is currently employed by the Provider as a Manager of Strategic Customer Planning within the Customer Relations and Account Services Division.He does not have any duties for the Provider related to SHA contracts or work.He does not supervise, directly or indirectly, any Provider employees that work on SHA projects.The Provider’s Asset Management Division and Integrated Field Services Division are responsible for the engineering, pricing, design and installation of traffic signals with SHA. The brothers do not live in the same household, nor do they hold any joint assets or joint debts.

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 Team Leader from participating in matters involving the Provider.

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 Manager of Strategic Customer Planning within the Customer Relations and Account Services Division for the Provider and has no duties related to SHA traffic light installation or service contracts, MDOT contracts, or the State of Maryland.The Team Leader and his brother do not live in the same household and do not have joint assets or debts.The Team Leader will not have any interaction with his brother’s unit of the Provider in carrying out his SHA duties involving the Provider. The Team Leader’s SHA duties involving the Provider constitute a small percentage of his work for the agency.

Therefore, we conclude that the circumstances and relationships here are sufficiently remote to grant the Team Leader an exception to allow his participation in matters involving the Provider that employs his brother.This determination is consistent with the Commission’s prior opinions in similar matters and is not contrary to purposes of the Maryland Public Ethics Law.We will need to review this exception further if either the Team Leader or his brother changes positions with their respective employers. SHA should monitor the situation and, should any issues or concerns arise, contact us for further review.

Robert F. Scholz, Chair
Julian L. Lapides
Paul M. Vettori
Jacob Yosef Miliman
Andrea Leahy-Fuchek

July 27, 2012

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