OPINION NO. 03-01
The Deputy Communications Director in the Governor's Press Office has requested an advisory opinion as to whether he may continue to produce the in-stadium broadcast of Baltimore Ravens' home football games. Prior to joining the Governor's staff this year, the Requestor had worked for a television and video production company and for the past five years had produced the game day in-stadium video broadcast of Ravens' home games. The Commission advises the Requestor, with one member dissenting1, that his continued participation in the in-stadium broadcast of Ravens' home football games is not barred by the employment provisions of the Public Ethics Law, Md. Code Ann., State Gov't Article, Title 15 (Supp. 2003). However, in order to avoid any possible perception of conflict of interest, he must be sensitive to issues that could arise that may require him to terminate his relationship with the Ravens organization.
The Requestor serves not only as the Deputy Communications Director, where he supervises the communications staff of the Governor, Lt Governor, and the First lady, but also as the Governor's Press Secretary. As Press Secretary he interacts with members of the press and the media on behalf of the Governor. The Requestor often accompanies the Governor to meetings and other official events at which he may act as the Governor's spokesperson. The Requestor advised the Commission that he does not participate in policy discussions or provide policy advice to the Governor. He and the Governor's Counsel advised that the Chief of Staff's office, Governor's Policy Office, the Governor's Legislative Office, and the Director of Communications and Strategic Planning are the primary advisors to the Governor in matters involving the Executive Department.
The Requestor's duties with the Ravens are limited to selecting cameras and re-plays for the in-house video feeds for the Diamond Vision video boards inside the stadium during Ravens' home games. Pursuant to a verbal agreement with the Ravens he is paid a fixed per diem up to twelve games per season. He exercises technical judgment in terms choosing the camera during game action and in determining which replays are shown to the stadium audience. He does not have any interaction with the press or media at the game.
The Public Ethics Law includes provisions that restrict secondary employment of officials and employees. Section 15-502(b)(1) provides that employees may not have employment with an entity subject to the authority of the employee or the governmental unit with which he or she is affiliated. It also prohibits employment with entities negotiating or participating in a contract with the employee's governmental unit. Section 15-502(b)(2) prohibits secondary employment that would impair the impartiality and independence of judgment of the employee.
The first question presented by the Requestor's proposed secondary employment is whether the Ravens are "subject to the authority of" or "contracting" with the office of the Governor. In prior opinions, we have not found that every entity doing business with or regulated by the State is subject to the authority of the Governor's office. In Opinion 91-7, addressing whether the Governor's Appointments Secretary may serve on the board of directors of a private bank, we stated:
. . . The Requestor works in the Appointments Office, a staff component of the Office of the Governor. Unlike some other more formal Executive Branch organizational units which are administratively part of the Executive Department, it does not have regulatory, procurement or related functions. Thus, the Requestor as part of his duties as Appointments Secretary would not appear to have regulatory or contractual responsibilities.
We recognize that under some circumstances the Governor may be called upon to be a decision-maker as to particular banking-related matters involving specific issues. However, we do not believe that all private entities that are subject to the authority of an executive agency that may ultimately report to the Governor should necessarily be viewed as subject to the authority of units of the Governor's Office as that phrase is contemplated in this section. Thus, though the Bank is subject to the regulatory authority of the Bank Commissioner and the Department of Licensing and Regulation, and may have contractual relationships with other agencies within the Executive Branch of State government, it is not, in the absence of some more direct and specific authority interaction with the Office of the Governor, an entity that is subject to the Requestor's authority or that of his agency for purposes of §3-103(a)(1)(i). This is particularly true in view of the fact that the Requestor and his unit have no duties involving procurement or regulatory functions . . . .
The Maryland Stadium Authority (hereinafter "the Authority") and the Baltimore Ravens are in a landlord-tenant relationship. The Authority was created in 1987 with the mission of returning a National Football League team to Baltimore and negotiating a long-term lease to retain the Orioles (See Md. Code Ann., Fin. Inst. Article, §13-702 (Supp. 2003)). In October 1995 the then Cleveland Browns agreed to relocate to Baltimore and the Stadium Authority entered into memorandum of agreement with the team. Subsequently the team was renamed the Ravens and the Maryland Stadium Authority oversaw the construction of a football stadium. Ravens Stadium (now M & T Bank Stadium) opened for the 1998 football season. The Authority is an "instrumentality of the State" and a "public corporation." The enabling statute establishes the Authority as "an independent unit in the Executive Branch of State Government" (§13-702(c)). The Authority Board consists of 7 members. The Governor appoints six members, including the Chairman, and the Mayor of Baltimore appoints one member. Over the sixteen years of its existence, the Authority has been assigned a variety of powers and duties related to the construction and operations of a variety of facilities throughout the State.2 Certain of the Authority's powers are subject to the review or pre-approval of the Board of Public Works. 3
The memorandum of agreement between the Baltimore Ravens and the Authority was entered into on October 27, 1995 and was amended and restated in an Agreement dated August 15, 1997. Pursuant to the agreement, the State is responsible for the maintenance of the stadium but is reimbursed by the Ravens. The agreement also addresses concessions, advertising, and other issues related to use of the stadium. The memorandum of agreement was planned to be re-negotiated into a full lease agreement. The lease agreement was negotiated three years ago but was delayed, and it is anticipated that there will be renewed discussions with the Ravens in the future. Any new lease agreement will require review and approval by the Board of Public Works.
We recognize that under some future circumstances the Governor may be called upon either as an individual or as a member of the Board of Public Works to make decisions related to Maryland Stadium Authority matters with the Ravens. However, absent a specific matter pending before the Governor's office or the Board of Public Works, we do not view the Authority's memorandum of agreement with the Ravens as placing the Ravens subject to the authority of the Governor's office. Further, the Requestor advised us that he does not have any substantive duties in the Governor's Office related to the Stadium Authority or policy regarding professional athletic teams and that he does not advise the Governor on matters of policy. We therefore conclude that subsection of §15-502(b)(1) does not apply to bar the Requestor's secondary employment.
Section 15-502(b)(2) bars employment that would impair an individual's impartiality or independence of judgment. We have considered this provision in several opinions and have generally viewed it as a complement to the strict authority and contractual provision of §15-502(b)(1). Section 15-502(b)(2) provides guidance when there is no authority or contractual relationships, but the relationship between official duties and outside activities gives rise to clear and serious concerns as to the ability of the official or employee to engage in the outside activity without compromising his or her impartiality and independence of judgment in performing his or her State duties.
In the present situation, the Requestor's employment with the Ravens is as a video technician and producer. The activity is limited to the jumbo screen and in-stadium closed circuit television during the Ravens' home games. These activities alone would not impair the Requestor's judgment in carrying out his duties as press officer to the Governor. We have consistently advised that speculative potential for conduct inconsistent with these limitations is not a sufficient basis to entirely prohibit an employment or interest relationship. Based on the nature of the Requestor's duties for the State and for the Ravens, his lack of direct involvement in policy decisions in both positions, the fact that his employment as a video technician with the Ravens pre dated his State service, and the lack of a specific matter pending before the Office of the Governor or the Board of Public Works at this time, we advise that his proposed employment is not prohibited by §§15-502(b)(1) and (2) of the Public Ethics Law.
The State Ethics Commission is the State agency charged with the responsibility of guarding against improper influence and protecting the public's confidence in government (see §15-101). The Requestor is a highly visible figure in State government and often is in the company of the Governor. The State, through the Stadium Authority, has spent substantial money and effort to bring the Ravens to Baltimore and build a stadium. Although there has been past controversies regarding issues associated with these events, we are charged with interpreting the law based on the facts presented, and on the basis of the facts presented, the proposed employment is not prohibited. The Requestor continues to be subject to all the requirements of the Public Ethics Law and when either the lease negotiations, or other specific matters involving the Ravens come before the Governor's office or the Board of Public Works, the Requestor will be required to either terminate his relationship to the Ravens or his State service.
Dorothy R. Fait, Chair
Ava S. Feiner, Ph.D
D. Bruce Poole
Robert F. Scholz
Date: November 20, 2003
I respectfully dissent. The State Ethics Commission's responsibility includes protecting the public's confidence in government that can be and is eroded when there is even the appearance of impropriety or favoritism. While I do not question the Requestor's integrity, I believe that the secondary employment with a major professional sports team of an employee in the Governor's office who is closely associated with the Governor creates the kind of appearance of conflict of interest referenced in §15-101 of the Ethics Law and intended to be barred by §15-502. The Ravens have benefited from significant State action in the past and continue to operate pursuant to an agreement negotiated by the Stadium Authority. The Governor appoints the majority of the Stadium Authority members and will be involved at some point in the future with the lease negotiations. The employment of his Press Secretary with the Ravens may create an appearance to the public that the impartiality and independence of judgment of the official has been impaired. I would prohibit the employment pursuant to §15-502(b)(2).
Julian L. Lapides
Date: November 20, 2003
1Commissioner Julian L. Lapides respectfully dissents for the reasons set forth at the end of the opinion.
2 For example, the Authority's Annual Report lists as completed projects Ripkin Stadium, Minnegan Stadium at Towson University, and Comcast Center at the University of Maryland College Park. Current projects include the Hippodrome Performing Arts Center, the Veterans' Memorial, the Montgomery County Conference Center and Camden Station.
3 The Board of Public Works was established by the Constitution of 1864 and consists of the Governor, Comptroller, and the State Treasurer. The Board reviews and approves certain capital projects, procurement contracts, and the acquisition, use, and transfer of State assets, and the expenditure of general obligation bond funds. The Board's powers and duties are set forth in the State Constitution and in the State Code.