SPECIAL ETHICS LAW MEMO

TO: State Employees and Officials

SUBJECT: Summary of Post-Employment and Related Limitations

Disqualification, Prestige and Related Provisions

Disqualification from Participation

State employees who plan to leave State service should be aware that certain provisions of the Public Ethics Law (State Government Article, Title 15, Annotated Code of Maryland) apply to constrain their conduct while they continue in their State positions. Section 15-501 prohibits participation in their State capacities in matters in which they have an interest or which involve entities to which they have applied for positions, are negotiating for employment or have any arrangements regarding future employment. The disqualification restriction applies when there is a one-to-one conversation or negotiation for employment, but it generally does not apply to situations in which the State employee sends resumes to a number of potential employers or to a State employee who has received an unsolicited offer of consideration for future employment. (See State Ethics Commission Opinion No. 82-19.) Once negotiations or an arrangement for future employment commences, the State employee needs to disclose this information and he or she may not participation in any matter involving the new or potential employer.

Prestige

Section 15-506 of the Public Ethics Law prohibits officials or employees from using the prestige of office for personal economic gain or that of another. This provision does not, however, preclude the State employee from including on his or her resume facts and general information related to the State employment and experience in State employment that may be a qualifying factor for the future employment.

Procurement Activity

Individuals who are involved in State procurement activities must also be aware of § 13-211 of the Finance and Procurement Article, Maryland Code Annotated, which provides that, during a procurement process, a competing contractor or its agent or consultant may not make an offer or promise of future employment or business opportunity to, or engage in any discussion of future employment or business opportunity with any procurement official of the agency conducting the procurement. “Procurement official” is a broader term than “procurement officer,” and the prohibitions contained in the Finance and Procurement Article are broader than the restrictions contained in the Public Ethics Law discussed above. Questions regarding interpretation of the procurement provision should be directed to the Office of the Attorney General.

Post-Employment Provision

Section 15-504(d) of the Public Ethics Law prohibits a former official or employee from assisting or representing in any way a party other than the State in a matter involving the State if the matter is one in which the individual participated significantly as a State employee. Several formal Ethics Commission advisory opinions provide some general direction regarding the nature of the constraints established by this section of the Public Ethics Law. (See, for example, Opinions No. 91-2, 89-11, 85-9, 82-24 and 82-17.) This section of the law does not bar employment with an entity involved in matters relating to a former agency or an individual’s appearance before the agency, rather it looks to identification of particular matters in which the individual had significant involvement in the context of his or her State employment and forbids assistance or participation as to that individual on behalf of another party. There is no time limit on this prohibition.

The purposes of § 15-504(d) are to avoid the appearance of “switching sides” thereby providing another party the special knowledge acquired in the context of one’s State employment and preventing the use of prior involvement to benefit yourself or another. Application of this prohibition relies on specific facts to determine whether the matter is the same matter and whether the person’s participation while a State employee was significant.

The Commission generally has viewed participation as including more than theoretical final authority or responsibility for a matter. Facts demonstrating participation involving personal supervision of the work of others, involvement in a required sign-off or concurrence capacity, or, in some cases, the provision of advice or recommendations as to a matter may lead to a conclusion of significant participation. If the proposed new work has any relationship to the individual’s former agency activities, the question the individual needs to consider is whether the proposed work for a new employer involves the same matter in which the individual participated as an employee.

Advice with regard to post-employment issues depends on the specific facts of the situation. It is difficult to provide advice in a hypothetical or speculative context. The time, both as to when the matter arose and the termination of State employment, is generally not a significant factor. The focus is whether the former official or employee significantly participated in the matter in his or her State capacity. If a potential assignment involves a matter that flows from or is otherwise related to a matter on which the individual worked while a State employee, you should consult the State Ethics Commission for a more detailed review in the context of the specific facts.

The Commission has permitted former officials and employees who are bona fide State contractual employees to work for their former agencies. On the other hand, the Commission has prohibited former officials and employees from working as sole proprietors or with some other business affiliation because such situations are considered as assisting a party other than the State.

Special Procurement Provision

Section 15-508 of the Public Ethics Law prohibits persons and entities involved in assisting the development of specifications for a procurement from bidding on the procurement. The section of the law also has an impact on post-employment situations. Generally, the post-employment provisions apply only to projects on which the individual may work in post-employment and do not apply to where the individual may be employed. The issue is this: if an individual has assisted in the development of specifications, a bidder may not employ him or her even if the former State employee will have no role in submitting the proposal or implementing the contract.

Limitations of this Summary

This summary reflects informal guidance based on the State Ethics Commission’s application of the post-employment provisions of the Public Ethics Law as articulated in previous formal opinions. It does not constitute an opinion of the commission. You may refer to Opinions No. 92-11, 91-13, 90-12, 86-24, 85-14, 84-33, 83-12, 82-3, 81-15, and 80-1. You may call the Commission staff if you have any questions or need additional information regarding application of the post-employment and related provisions of the Public Ethics Law.

(March 18, 2003)