81.28

OPINION NO. 81-28

A request has been received from the Administrator of the Motor Vehicle Administration (MVA) for advice as to whether an investigator for the MVA may own and operate a private detective business.

This request is submitted by the Administrator on behalf of an MVA field agent (the Agent) who proposes to establish a private detective agency, specializing primarily in domestic relations cases. MVA field agents are assigned to various local offices to carry out investigative and other responsibilities related to implementation of the State's motor vehicle laws. Their primary efforts involve the compulsory insurance laws, including, for example, picking up tags and assessing penalties against those whose tags are suspended under the financial responsibility laws. They may be involved in more substantive investigative work in following up on a request for reinstatement of a suspended license, in running down bad checks paid for licenses or tags, or conducting investigations regarding compliance with determinations of the Medical Advisory Board. The Administrator also indicates that the MVA investigators may, on rare occasions, be required to do background investigations on persons being considered for automobile salesman or dealers licenses.

In connection with their MVA work, the field agents have free and direct access to most MVA records. These records are, as a general matter, available to the public, though members of the public would have to pay a fee and may not have quite as complete or direct access as persons employed in the MVA. Agents' access to MVA records may also include, on a limited basis, medical history records maintained by the Medical Advisory Board, which are confidential, and also on a limited basis, confidential criminal history records maintained by the State Police. The Administrator states that these types of records are needed, however infrequently, in connection with follow-up investigations on Medical Advisory Board cases and with car dealer and salesman licensing investigations.

The Administrator expresses concern in this situation about the actual or apparent problems that could arise as a result of the favorable position of field agents in relation to motor vehicle and other records, both public and confidential. He notes also that many agents have easy access to State Police barracks, where they may acquire information or use the facilities to write reports, make phone calls, etc. He states that all field agents are assigned State cars and occasionally do surveillance work. He is concerned, given the similarity in some of the types of work done by field agents and private detectives, that drawing the line between official and private work could be difficult, at least from the standpoint of public perception or an administrative control office. He also indicated that he is uneasy about the fact that a private detective may carry a handgun; he stated that MVA's general policy is that its agents not carry handgun.

The Agent is a former State policeman who has done occasional investigative work in the past for a former colleague. He states that his intention is to set up his own detective agency specializing in domestic relations cases and otherwise limiting his business solely to cases that would not raise questions regarding his MVA employment. He states that the primary information required from government files in this type of work is the motor vehicle tag number. He intends to have an employee acquire this information through the regular public access channels. He intends his agency to operate primarily in Frederick and possibly Carroll counties rather than in the geographical area to which he is assigned by MVA (Montgomery County). The Agent indicates that he does have a handgun permit (issued when he left the State police), but does not generally carry a gun. He also states that he anticipates little need for court testimony given the limitations on the types of cases he intends to accept. In any case, he states that he would base his expert qualification for court purposes solely on his experience as a State police officer rather than his current MVA activities.

Several provisions in the Public Ethics Law (Article 40A, Annotated Code of Maryland, the Ethics Law) could impact on the Agent's proposed outside activities. Section 3-101, for example, prohibits participation by officials and employees in official State matters in which they or certain relatives have an interest, or in which entities with which they or their relatives are associated are involved as parties. Section 3-105 establishes limitations on outside employment of officials and employees and §3-104 prohibits a public official or employee from intentionally using the prestige of his office for his own economic benefit or that of another. Section 3-107 prohibits an official or employee from using or disclosing, for his own benefit or that of another, any nonpublic information acquired through his official State position.

All of these provisions could impact on how the Agent goes about operating a private agency and assuring that it does not impact on his MVA job. He would certainly be required to avoid clients who were involved in MVA investigations, and disqualify himself from official assignments where private clients are parties or subjects. He would also be bound to avoid any use of his official position to advance his private business, and would have to take strict care not to improperly use MVA information available in his official position. However, the question presented here is whether any violation of the Ethics Law would arise solely from the Agent's establishing and operating a detective agency. The provisions discussed above do not flatly prohibit outside activities. Rather, they establish limitations on how such activities must be conducted in order to avoid conflicts with a person's official State position. We therefore conclude that the circumstances presented here do not present a situation that would bar establishment of a detective agency, per se, under any of these provisions.

Section 3-103(a) of the Ethics Law does include prohibitions that would ban certain outside activities altogether rather than just limiting or controlling them or State activities that could involve them. Section 3-103(a)(1)(i) (as amended, Laws of 1981, Ch. 796) prohibits an official or employee from being employed by or having a financial interest in an entity that is under the authority of or contracts with his agency; §3-103(a)(1)(ii) prohibits having any other employment relationship which would impair the impartiality and independence of judgment of the official or employee. The Administrator indicates that detective agencies, which are licensed and regulated by the Maryland State Police, are not under the authority of MVA. Nor would it appear that a contractual relationship as contemplated by §3-103(a)(1)(i) is likely to arise between MVA and the Agent's private agency. Thus, it does not appear to us, based on the facts presented, that establishment of a detective agency by the Agent would, in itself, result in a violation of §3-103(a)(1)(i) of the Ethics Law.

The fundamental issue, then, is whether the Agent's proposed private detective agency would constitute "inconsistent employment" prohibited by §3-103(a)(1)(ii) of the Ethics Law. This provision is a successor to a slightly broader inconsistent employment provision in the Code of Ethics (predecessor to the Ethics Law), which made it a conflict of interest for officers and employees

to engage in outside employment which may result in conflicts between the private interests of the officer or employee and his official State duties and responsibilities or which impairs or could reasonably be expected to impair his independence of judgment in the exercise of his official duties. (Article 19 COMAR, Code of Ethics, Article III, §3.

The Ethics Law as originally enacted (Laws of 1979, Ch. 513) did not include an inconsistent employment provision similar to this Code of Ethics prohibition. Section 3-103(a)(1)(ii) was added to the Ethics Law in the 1981 Session of the General Assembly (Laws of 1981, Ch. 796). The original House version (H.B. 1712) of the new §3-103(a)(1)(ii) prohibited outside employment that would "tend to" impair impartiality and independence of judgment. The words "tend to" were subsequently deleted. We do not believe that the resulting final language necessarily requires a finding of an actual present conflict for there to be a problem under this provision, as such a restrictive approach could result in a near impossible burden of proof that could render the provision virtually inoperative. However, we do view deletion of the words "tend to" prior to final passage as intended to limit the scope of the provision.

Thus, we believe that the more narrowly drafted final version of the Ethics Law inconsistent employment provision must be viewed as requiring a narrower reading of the prohibition than followed by the Board of Ethics (the commission's predecessor) under the Code of Ethics. We understand the Administrator's concerns about the Agent's access to MVA records, his use of a State vehicle, and his possibly better official access to people and information that might be useful to him in his private activities. However, these types of concerns are addressed by other provisions of the Ethics Law (as discussed above). The Agent must be aware of and take care to comply with these limitations on his outside activities.

As to §3-103(a)(1)(ii), we believe that it should be read primarily as a complement to the provisions of §3-103(a)(1)(i). We view it as covering those situations where the authority or contractual relationships of §3-103(a)(1)(i) may not be met, but where the relationship between official duties and outside activities gives rise to clear and serious concerns as to the ability of the official or employee to engage in the outside activity and still maintain his impartiality and independence of judgment in carrying out his State responsibilities.

In this situation the Agent's private detective business is not regulated by or otherwise under the authority of his agency. Nor does there appear to be a likelihood that his private clients would be the subjects of his official responsibilities so as to create a problem in his day-to-day MVA work. We do not perceive in these facts the type of relationship between official and private interests that would give rise to the concerns addressed in §3-103(a)(1)(ii). We therefore conclude, based on the facts presented here and the representations made by the Agent as to his plans for his detective agency, that the establishment and operation of such a business would not, in itself, be a violation of the Ethics Law.

However, we wish to clarify that if the Agent's proposed endeavor is viewed as presenting serious administrative issues for his State employer, then these concerns may be handled by more restrictive agency regulations permitted by §1-103 of the Ethics Law. We view the Ethics Law as setting forth certain minimum standards of conduct to be followed by all State Employees. Section 1-103 of the Law reflects a recognition of the need for agency managers who have particular concerns related to their specific agency mission and personnel situation to take appropriate administrative action to deal with these circumstances. These unique agency problems are thus properly addressed by agency regulations and standards supplementary to, but not inconsistent with, the Public Ethics Law.

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

Date: July 22, 1981