80.15

OPINION NO. 80-15

A prospective employee (the Requestor) of the State Highway Administration (SHA) as a right-of-way agent has requested our opinion as to whether he may, if employed by the SHA, engage in outside employment involving real estate management activities other than those for which a license is required.

The requestor is currently privately employed by a real estate agency; he indicates he has fulfilled all the requirements for a private license in the real estate field. He states he has also completed all of the requirements making him eligible to be a right-of-way agent for the State Highway Administration (SHA). He has been informed by SHA personnel that his private license must be placed in escrow during time he serves as a right-of-way agent. He wishes to engage in outside employment while he serves the State, and has specifically requested a Commission opinion on the propriety of his being employed by an apartment or shopping center management company, engaged, for example, in maintenance activities, rent collection, or processing of rental applications. He is holding up any further action concerning SHA employment pending receipt of advice concerning outside employment.

Personnel in SHA indicate that the procedure regarding surrender of licenses by right-of-way agents is based on Opinion No. 54 (Title 19 COMAR) of the Board of Ethics. In this Opinion the Board ratified an SHA Directive prohibiting right-of-way agents from engaging in any activities pursuant to real estate salesman and/or brokers licenses. The Board found that "public confidence would be undermined should employees work as real estate salesmen or brokers even if they do not handle transactions involving the Administration in their private capacities." The SHA policy is one of long-standing. The Requestor's specific inquiry here appears to accept the earlier opinion's ruling regarding licensed activities, inquiring only as to the propriety of other real estate activities not requiring a license. We therefore will respond to the request strictly as it is presented, applying the principles of the new Ethics Law to the specific concerns expressed by the Requestor, without addressing the broader question of the impact of the new law on Opinion 54 and licensed real estate activities by right-of-way agents. 1

It should be noted, however, that the Law seems to contemplate the continued existence of provisions more restrictive than those included in the new Law, providing in section 1-103 that other provisions of law or regulations relating to conflicts of interest, ...shall apply where the provisions of these laws or regulations are more stringent than *the Law*, and in section 2-104(d) that, unless otherwise decided, a person subject to the provisions of *the Law* may rely upon a published opinion of...*a* similar or predecessor body, unless that opinion is plainly inconsistent with the provisions of *the Law*.

Though the Requestor's inquiry is speculative to a considerable extent, we can provide him with some general guidance as to whether and how the outside employment provisions of the Law would apply to his proposed activities. The key sections here are 3-101 and 3-103(a) of the Law. Section 3-101 prohibits an official or employee from participating (in a non-ministerial way) in any matter in which he has an interest or in which any of several identified entities with which he is connected is a party. This would preclude, for example, participation in a matter which has as a party an entity in which the employee has a direct financial interest (that is, an interest or a right to income in excess of $1,000); or an entity in which he is an officer, director, partner or employee; or an entity with which he has a contract that could reasonably be expected to create a conflict with his State employment.

Section 3-103(a) prohibits an official or employee from being employed by or having an interest in any entity that is under the authority of or has contractual dealings with his agency. This would preclude the requestor, for example, from being employed in a nonlicensed real estate capacity for an apartment or shopping center complex that was engaged in providing relocation housing to individuals being relocated pursuant to activities of the SHA, or for such an entity if it was engaged in condemnation negotiations with the SHA. It should be noted that these represent examples of the types of activity that would clearly be prohibited by the Law's outside employment provisions. Since we do not have any specific information relating to particular employment by the Requestor we cannot at this time provide a more definitive answer regarding his outside activities.

However, the Requestor should be advised that neither of these prohibitions flatly prohibits all outside employment or outside employment of a certain type. What these provisions do is limit: 1) official State activities regarding matters in which the employee may have certain private interests, and, 2) outside employment or interests in entities that are under authority of or have contractual dealings with one's agency. If the Requestor accepts State employment as an SHA right-of-way agent, he should keep these limitations in mind in accepting or seeking supplementary employment. Any specific situations which raise additional questions concerning application of the Ethics Law may be referred to the Commission for a definitive answer as to those specific facts.

Note:  Mr. Calvert was a member of the Commission when the case was considered and decided, but resigned prior to the issuance of the formal opinion.

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

Date: July 23, 1980

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1 It should be noted, however, that the Law seems to contemplate the continued existence of provisions more restrictive than those included in the new Law, providing in section 1-103 that

other provisions of law or regulations relating to conflicts of interest ... shall apply where the provisions of these laws or
         regulations are more stringent then [the Law].

and in section 2-104(d) that, unless otherwise decided,

a person subject tot he provisions of [the Law] may rely upon a published opinion of ...[a] similar or predecessor body, unless
        that opinion is plainly inconsistent with the provisions of [the Law].