81.02

OPINION NO. 81-2

The State Department of Assessments and Taxation (DAT) has requested an opinion as to whether the agency may hire a new employee who is a relative of a current employee.

This request is presented by the Personnel Office in DAT, consistent with a Bulletin (NS #113) issued by the Department of Personnel (DOP) providing guidance to State agencies regarding the hiring of relatives of employees to serve in the same office as current employees. The Bulletin states the policy of the Executive Department against the employment of close relatives to serve in the same agency. The Bulletin sets forth several administrative guidelines for implementing the policy, and indicates that complaints concerning the hiring of relatives should be directed to the State Ethics Commission, as should any doubts of appointing officers regarding the propriety of such appointments.

The particular situation raised by DAT has to do with a proposed appointment in one of its County offices of an "Assessor I, Real Property. " The office interviewed several candidates from the list of eligibles. The first choice candidate having declined the offer, the office wished to hire its second choice who is the brother-in-law of a current secretary in the office. There would apparently be no supervisory relationship between the two employees. As this request raises general issues related to the Commission's jurisdiction of questions regarding the hiring of relatives, the particular prospective employee has not been identified; the request has been handled as a general question rather than a specific determination as to this particular hiring action.

There is no provision in the Public Ethics Law (Article 40A, Annotated Code of Maryland, the Ethics Law) that per se prohibits the employment of relatives in the same office, nor was there such a provision under the Code of Ethics (the Ethics Law predecessor provisions, see COMAR, Title 19). The Board of Ethics, however, considered issues raised regarding employment of relatives in its Opinion No. 19 (COMAR, Title 19). This case involved the proposed hiring by the Division of Labor and Industry (Department of Licensing and Regulation) of a Chief Mediator who was the son of the Commissioner of Labor and Industry. The son had been the only person certified as qualified for the position through the normal merit system procedure. The issue was raised under the same administrative policy that is addressed here. The Board indicated that the formulation and enforcement of such administrative policy were not within its purview unless there was some specific violation of the Code of Ethics. It then evaluated the facts of that case under the Code's prohibition against intentional use of prestige of office (Art. III, § 4) and found no violation. It also advised the Commissioner to disqualify himself from any future participation in any matter relating to his son's employment.

We believe that a similar position is appropriately taken under the Public Ethics Law. Comparable provisions of the Ethics Law, § 3-101(a) requiring disqualification from participation in a matter in which one has an interest, and § 3-104 prohibiting intentional use of prestige, may be relevant to such hiring cases, where the facts of a particular situation raise issues under these provisions. However, we wish to clarify that the Ethics Law does not specifically address the situation of hiring of relatives as a general matter. Not every situation which could raise the potential administrative problems of concern to the Department of Personnel (such as office morale) would raise issues under the relevant provisions of the Ethics Law.

The specific facts of this situation would appear not to raise any threshold issues that would bring it within the purview of the Ethics Law. The prospective employee was identified and selected through the merit system process, and the current employee is a secretary apparently without any appointing or managerial authority. Unless there is some evidence of the secretary's taking some kind of strong action to encourage her office to hire her brother-in-law, it is difficult to see how this situation could involve use of prestige. Nor would it appear likely that this employee would have participated in her relative's hiring in violation of § 3-101(a). Further, the Requestor indicates that the two individuals would not stand in a supervisory relationship. Under these circumstances, both individuals would appear to have little problem in complying with the provisions of § 3-101(a) and 3-104, if the prospective employee is hired, taking care that neither participates in any matter that would affect the promotion or other personnel interests of the other.

The absence of any apparent violation of the Ethics Law would not, of course, resolve administrative questions raised by the Department of Personnel (DOP) Bulletin. We wish, however, to make it clear that this Commission should not be viewed as a final arbiter in matters where the issues have primarily to do with administrative issues raised under the DOP policy, rather than with facts raising real questions under the Ethics Law. We understand that the Bulletin was issued primarily as guidance, and the Ethics Commission was referred to in recognition of the fact that some situations involving the hiring of relatives could raise ethics problems. We agree that hiring situations involving misuse of prestige of office under § 3-104 of the Ethics Law, or the participation provisions of § 3-101 should be referred to the Ethics Commission. However, we think that DOP should clarify the Bulletin to identify the types of situations which might raise Ethics Law questions, recognizing that general administrative and policy questions are not within the purview of this Commission. All issues regarding the hiring of relatives should not, as a matter of course, be referred to the Ethics Commission. Commission staff will be happy to provide assistance to DOP in clarifying the Bulletin.

Mr. Calvert was a member of the Commission when this 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: March 10, 1981