81.33

OPINION NO. 81-33

An advisory opinion has been requested as to whether an employee of the Maryland Training and Employment Office (the Requestor) may engage in outside employment with an out-of-state firm that is engaged in training activities on the same subject and under the same Federal law as his State responsibilities.

The Requestor is an official in the Training and Employment Office in the Department of Human Resources. He is involved in Maryland's efforts administering programs under the Federal Comprehensive Employment and Training Act (CETA). His office has responsibility: 1) for actually managing the CETA program in those areas of the State that cannot qualify for direct Federal funding (the Balance of State Program), and 2) for providing coordination, support and assistance to various State manpower agencies and local CETA programs. The Requestor indicates that his job duties relate entirely to the Balance of State Program described in item 1. He states that as a result of the recommendation of a staff person in the Baltimore CETA office, he was approached by the WLA Associates to work for it part-time as a trainer. He believes that his recommendation arose from his general acquaintance with this individual, with whom he has not worked in connection with his State responsibilities.

WLA Associates (WLA) is a Virginia-based firm that conducts training programs for State and local governments pursuant to a contract between it and the U. S. Department of Labor (DOL). WLA has not had any contracts with the State of Maryland, though it has conducted training in Maryland under purchase orders from DOL Region III. WLA indicates that it has conflict of interest policies prohibiting its trainers from being involved in activities in their own Region. The Requestor's duties thus would be to provide training services to WLA as part of its courses for officials and personnel from other states. He indicates that he would be doing this work only on annual leave time approved by his supervisor.

The Requestor's proposed outside employment activities raise issues under sections 3-103(a) and 3-104 of the Public Ethics Law (Article 40A, §§3-103(a) and 3-104, Annotated Code of Maryland, the Ethics Law). Section 3-103(a) at the time this request was considered prohibited outside employment by State employees or officials with any entity that is under the individual's authority or that of his agency, or that has contractual relationships with the agency. 1 The Requestor's immediate office (Training and Employment) and his Department (DHR) are both jurisdictionally confined to the State of Maryland. His proposed outside employer apparently does not do business either with the State or with local entities within the State; nor does it appear to have any regulatory relationship with the State or the Requestor's agency. Thus, there do not appear to be any facts present here that would present an actual or potential conflict of interest under section 3-103(a) of the Ethics Law.

The remaining issue, then, is the application to this situation of section 3-104 of the Ethics Law. This section prohibits an official's intentional use of the prestige of his office for his own personal gain or that of another. We have considered application of this provision in outside employment situations on several occasions (see Opinion No. 80-7, Opinion No. 80-8, and Opinion No. 81-32), and have generally concluded that, in addition to blatant use of position for personal gain, it prohibits acceptance of fees for outside activities that are directly and immediately related to an individual's State duties. In determining whether such outside employment is directly and immediately related to State duties, we have considered whether the work is done on leave or State time; whether it involves efforts directly arising as a result of performance and contacts developed in connection with State responsibilities; whether the work can be viewed as more appropriately done as part of the person's official State responsibilities; and whether some particular aspect of an individual's State job would be impacted by the employment relationship.

In this case the Requestor's private training efforts certainly involve the same subject, and Federal law, that are involved in his State job. However, his recommendation to WLA apparently resulted from local contacts not developed directly in his State job; he is doing the work on his own time, and indicates that he will not be representing the State of Maryland in these activities. Also, the jurisdictional and geographical relationship of WLA to the State of Maryland, and his agency in particular, would tend to further negate a conclusion that a direct and substantial relationship to his State job exists.

We have, in evaluating outside employment issues under section 3-104, taken the general view that more than common subject matter or expertise between State and private employment is required to support a finding of intentional use of prestige of office. We do not believe that use of professional growth and skills acquired as a natural part of any employment must, in the absence of other facts, necessarily be seen as an improper use of the influence of the office itself. We believe that this approach applies to the facts presented in this request, where the general subject matter of the State and private activities are related, but there is no other connection between the individual's private employer and his State duties. We therefore conclude that acceptance by the Requestor of the identified employment with WLA Associates would not be a conflict of interest violation under section 3-104 of the Ethics Law.

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

Date: August 19, 1981

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1 After consideration of this request, section 3-103(a) of the Ethics Law was amended to add a provision banning outside employment relationships that would impair an individual's impartiality and independence of judgment. We do not believe that the total factual circumstances of this request give rise to an issue under this provision. As the amended language also was not at issue when the request was considered we therefore do not address this aspect of §3-103(a) in detail here.