79.02

OPINION NO. 79-2

A Corporal with the Maryland State Police has asked the Commission for a waiver under §3-103(a) of Title 3. Appearing at the hearing held in open session were the Corporal, his attorney, and the Chief of the Special Operations Bureau of the Maryland State Police.

The Corporal testified that he was granted permission by the Maryland State Police (the State Police) in 1976 to operate a gunsmith shop at his home for the purpose of repairing, purchasing, and selling firearms. He stated that he had obtained a valid trader's license and complied with all necessary state and federal tax requirements.

Although some of the inventory of his shop includes long guns, such as rifles and shotguns, for which only a federal firearms license is required, the bulk of his inventory and his sales involves handguns for which a Maryland Pistol and Revolver License (a License) is required.

The licensing agency for the approval of and licensing of holders of a License is the Maryland State Police. Section 443 of Article 27 of the Annotated Code sets forth the standards and procedures followed by the State Police in approving, disapproving, and revoking those licenses. Additionally, §442 defines procedures which must be followed by a licensee to sell or transfer pistols and revolvers; §445 contains restrictions on the sale and transfer of handguns to certain categories of individuals such as minors, criminals and fugitives.

Between 1976, when his outside employment was approved by the State Police, and the present time, the State Police Secondary Employment regulations (see Special Order No. 01-78-134, dated April 11, 1978, effective May 31, 1978) were amended to disallow the employment of any Agency employee by any entity licensed by or under the regulatory control of the State Police. This amendment has the effect of conforming State Police policy to Opinions 81 and 94 of the prior Board of Ethics. As a result of the new employment restrictions, the Maryland State Police requested that the Corporal surrender his license since his secondary employment does not conform to the new regulations.

The relevant outside employment provision of the current Code of Ethics is §3-103(a) which provides in pertinent part:

"An official or employee may not be employed by, or have an interest in, any entity subject to the authority of that official or employee or of the government agency with which he is affiliated...."

Since the business of dealers who sell and transfer handguns is regulated by the Corporal's agency, his outside employment is directly prohibited by §3-103(a). He has requested a waiver from the provisions of that Section.

Section 3-103(a) does not contain any specific waiver authority permitting the Commission to suspend, in whole or in part, the operation of that Section. The only provision in the statute which permits a general modification of §3-103(a) requirements is §2-103(h) of Title 2. Section 2-103(h) provides: "The Commission may exempt from the provisions of this article any State board or commission or any municipality, or in the case of public officials on boards or commissions, may modify the requirements of the article if because of the nature of the board or commission or the size of the municipality, it finds that the application of the article would constitute an unreasonable invasion of privacy or otherwise constitute an unreasonable hardship and would significantly reduce the availability of qualified persons for public service and if it also finds that the exemption or modification would not be contrary to the purposes of this article." However, by its terms, it permits the Commission to grant such waivers only to public officials on boards or commissions and not to other officials and employees in State service.

Therefore, the Commission finds that it has no authority to grant §3-103(a) waivers to the Corporal or to any other State employee or official, with the exception of public officials on boards and commissions.

Herbert J. Belgrad, Chairman
   William B. Calvert Reverend John Wesley Holland
   Barbara M. Steckel

Date: October 17, 1979