80.16

OPINION NO. 80-16

The Commission has been requested to provide advice as to whether any provision of the Maryland Public Ethics Law (Md. Code Ann., Art. 40A, the Law) is violated by an individual as a result of his being employed as a lobbyist for a labor organization at the same time that he serves as a member of the Maryland Apprenticeship and Training Council (the Council).

The Council member (the Member) is a lobbyist employee of a labor organization for which he serves as chairman of the Maryland State Legislative Board. His advisory opinion request was prompted by his concern that he would be a State official or employee as defined in the instructions to the lobbying registration form, by virtue of his membership, by Gubernatorial appointment, on the Council. He indicated to Commission staff that his concern is whether his State service on the Council and his private employment create a conflict of interest in and of themselves; he indicated that he was not aware of any specific facts that would give rise to an actual conflict of interest as his labor organization employer does not now (though it could in the future) have any apprenticeship or training programs funded, approved or otherwise regulated by the Council.

The Council is a State agency established in Md. Code Ann., Art. 89, §§50—56, and functioning as part of the Division of Labor and Industry in the Department of Licensing and Regulation. Its members are appointed by the Governor in accordance with a statutory formula requiring three members to be representatives of employee organizations, three to be representatives of employers, and one to be appointed from the general public. (Note: We are informed by the Governor's Appointments Office that the Member is appointed as a representative of an employee organization.) The Council determines the apprenticeability of trades, formulates and adopts standards of apprenticeship, registers apprenticeship agreements, and approves and certifies apprenticeship programs; it may, after a hearing on the record, suspend or revoke program approvals, and may adopt rules and regulations implementing its program. Violation of the program approval provisions is a misdemeanor punishable by fine and/or imprisonment.

The relevant provisions of the Law are the definition of "public official" in §1-201(z), the prohibition against outside employment in §3-103(a), and the other conflict of interest provisions as they apply generally to the situation. The facts presented do not appear to raise any questions under the lobbying disclosure provisions of Title 5 of the Law. Section 1-201(z)(1)(i) defines "public official" to include an individual who is appointed to an executive agency not exempted by the Commission pursuant to §2-103(h) of the Law. "Executive agency" is defined in §1-201(k) to include any "commission, board, agency or other body in state government, which is established by law but which is not part of the legislative or judicial branch...." As the Council seems to meet these criteria, we find that the member is a public official under §1-201(z).

Section 3-103(a) of the Law generally prohibits an official from being employed by or having an interest in any entity that is under the authority of or has contractual dealings with his agency. However, the section excludes from its coverage a public official who is "appointed to a regulatory or licensing authority pursuant to a statutory requirement that persons subject to the jurisdiction of the authority be represented in appointments to it." The Member serves on the Council (which is a licensing or regulatory agency), pursuant to a statutory requirement that it include persons representing "employee organizations." (Md. Code Ann., Art. 89, §51.)

The designation, under Md. Code Ann., Art. 89, of "employee organizations" as required participants in the Council could be viewed as a more general requirement than is contemplated in §3-103(a), addressing itself to groups generally interested in the Council's activities, though not necessarily subject to its jurisdiction. However, we believe that this would be too narrow a reading of the section's exclusionary language. The fact is, as an employee organization possibly involved in employee training or apprenticeship programs, the Member's employer is certainly potentially subject directly to the Council's authority, as would be any employee organization. This organization's relationship with other entities within the Division of Labor and Industry also flows directly from its activities as an employee organization and would also be likely with any employee organization.

The jurisdictional relationship presented in the Council's enabling statute may not be as clear as, for example, the statute requiring the Board of Medical Examiners membership to include licensed physicians whose licenses are issued by and subject to revocation by the Board. However, it would appear that, given the activities of employee organizations in relation to the Council and other Division of Labor and Industry entities, appointment of any person properly representing such an organization would inevitably raise the same potential conflict of interest problems generally presented by the Member. Given this fact, we conclude that the Member and others appointed to the Council pursuant to the language of Art. 89 should be viewed as covered by the exclusionary language of §3-103(a). Thus, his employment with the labor organization does not, in itself, constitute a violation of §3-103(a) of the Public Ethics Law.

Other provisions of Title 3 of the Law:

1) require disqualification from participation in matters in which he has an interest or which involve his employer or another business entity in which he has an interest;

2) prohibit contingent representation of another in matters before his agency;

3) prohibit the intentional use of the prestige of his State office;

4) prohibit his employment with an entity having a contract with his agency that is within his official duties;

5) prohibit the solicitation or acceptance of gifts except under statutorily defined circumstances; and

6) prohibit the disclosure of official information for his own benefit or that of another.

The Member did not present any factual information indicating concern about any particular situations raising a potential conflict of interest under these other provisions. If he or other members of the Council have any specific concerns about the application of the Law to their responsibilities as a Maryland official, they may direct a specific request for an advisory opinion to the Commission.

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