81.13

OPINION NO. 81-13

The State Ethics Commission has received an inquiry from the Division of Corrections (DOC) through the Chief Counsel of the Department of Public Safety and Correctional Services (DPSC) as to whether DOC correctional officers may engage in part-time outside employment as security guards for an entity operating a correctional facility under contract to DOC.

The Baltimore City Community Adult Rehabilitation Center (CARC) is established and operated pursuant to the provisions of Article 27, §706 through 710E, Annotated Code of Maryland. CARC's are correctional facilities designed to provide housing and rehabilitation to "persons who have been convicted of crimes but who, in the judgment of the courts and appropriate correctional personnel, can best be rehabilitated without substantial danger to the community in local community facilities." Such facilities are not post-incarceration "half-way" houses, but part of an overall correctional system, housing inmates currently serving sentences. The facilities thus require some security and guard services.

Though authority exists for local operations of such facilities, the Baltimore City CARC is, pursuant to section 706(4), the responsibility of the State DOC. Section 710A, however, provides that the government entity responsible for a particular facility "may, by contract, provide for the operation of a center by a nonpublic person, group, or other agency upon terms and conditions approved by the Secretary of the Department of Public Safety and Correctional Services (DPSC)." Pursuant to this authority, the DOC has contracted with Threshold, Inc. to operate the Baltimore City CARC.1 Under this contract Threshold is responsible for providing services covering all aspects of the operations of the CARC, including security and guard services.

In connection with providing these security services, Threshold has requested the advice of the Chief Council of DPSC concerning the propriety of its hiring on a part-time basis off-duty correctional officers from a DOC facility. Threshold indicates that it has been approached by officers from the Brock Bridge correctional facility who wish to fill some of these part-time positions. Brock Bridge is a part of the State correctional system that is generally viewed as a "staging area" for inmates who may be transferred to a lower security facility such as a CARC; also, inmates transferred to a CARC that violate the conditions of their transfer could be returned to Brock Bridge pending a permanent reassignment to a higher level security prison. We are informed that the officers involved are all at the lower levels of the correctional hierarchy, none of them holding management positions or in any way involved in the negotiation or management of the DOC/Threshold contract.2

The provision of law that is relevant to this request is section 3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law), which prohibits a State employee from being employed by an entity that is under the authority of or has a contract with his agency. The DOC officers are clearly employees of the State; they propose to enter into an employment relationship with Threshold; and Threshold quite plainly has a contract with their agency (DPSC), in fact with their own Division (DOC). Further, as an operator of a correctional facility, Threshold is also required to comply with standards established by DOC for such facilities, and is therefore subject to the agency's regulatory authority. A plain reading of section 3-103(a) as applied to these facts would thus appear to result in a conclusion that the proposed activity is prohibited.

Further, we believe that this situation creates the kind of potential for conflict of interest that is intended to be addressed by Title 3 of the Ethics Law and section 3-103(a) in particular. The relationship between the Baltimore City CARC and the DOC and Brock Bridge correctional facility is not remote. The CARC functions as an integral part of the correctional system and both facilities may handle the same inmates over a period of time. More importantly, the proposed outside employer here is an entity that must comply with DOC regulations covering the very activities in which these employees would participate; also, the firm's performance of these functions is included in its contractual obligations to DOC.

Though Threshold is performing services that have the same ultimate goals as DOC, it is clear to us that its interests as a contractor and regulated entity cannot always be expected to be identical to those of DOC. The employees, whose primary loyalty must be to DOC, could therefore be placed in a position of conflict of interest resulting from actions or nonactions proposed to be taken by their part-time employer that may be inconsistent with DOC requirements. Under these circumstances, we therefore conclude that the part-time outside employment of DOC correctional officers as security personnel at the Baltimore CARC would be a violation of section 3-103(a) of the Ethics Law.

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

Date: April 6, 1981

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1 Though approval of the Secretary, DPSC, is required under this provision, we understand that the contract for the Baltimore City CARC is actually between Threshold and the Division of Corrections.

2 The contract apparently includes a standard provision prohibiting State officials involved in the contract from being employed by the contractor; DPSC counsel appears to be satisfied that the contractor would employ no one who would be within this prohibition.