81.36

OPINION NO. 81-36

The Superintendent of the Maryland State Police (the State Police) has requested an advisory opinion as to whether a Captain in the State Police may engage in outside employment as an instructor for a course being conducted by the International Association of Chiefs of Police (IACP) in Albany, New York.

This request is submitted by the Superintendent on behalf of a State Police Captain who is Commander of the Force's Motor Vehicle Division (the Captain), and who has been requested to participate as an instructor in a week-long course being conducted by the IACP for the New York State Police in Albany. The course concerns driving efficiency by officers using police vehicles; it will involve the showing of a Department of Energy (DOE) film on driving efficiency and a brief seminar discussion, followed by actual in-vehicle driving instruction. The IACP is an association of police personnel from cities and states. It does not have any contracts with the State Police or the Department of Public Safety and Correctional Services, nor has it had for several years. The State's relationship with it consists primarily of the individual membership of various personnel in the organization. The Captain indicates that he will engage in this activity while on approved annual leave; he will be paid $135 per day plus lodging and subsistence.

The Captain's State Police position does not directly relate to the State's police driver efficiency program. He is responsible for purchase and maintenance of State Police vehicles. This includes, however, installation and maintenance of various vehicle gauges used to measure driving efficiency. This aspect of his job, as well as his general expertise in cars (which predated his State employment), led to his being selected by his State Police superiors to participate with two Maryland Police Training School instructors in a three-day DOE driver efficiency course (DECAT). Other Maryland State Troopers have in turn received driving efficiency instruction from the Police Training School instructors. The Captain's instruction for the IACP would basically reflect this DECAT material, including the DOE DECAT film. He indicates that he is an honorary member of the IACP and has spoken before the group on Maryland's safe driving program. He is also a member of and participates in the National Association of Fleet Administrators. He has spoken before this group and also before the Delaware State Police concerning Maryland State Police energy conservation efforts.

This request involves application of the outside employment provisions of§3-103(a) and the misuse of prestige provisions of§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) prohibits an official from being employed by an entity that is under the authority of or contracts with his agency (subsection (a)(1)(i), or from having any other employment relationship that would impair his impartiality and independence of judgment (subsection (a)(1)(ii)). The IACP does not have any contractual relationships with either the State Police or its parent Department; nor would there appear to be any regulatory or other authority relationship between the IACP and the Captain's agency. There would thus not appear to be a violation under§3-103(a)(1)(i) arising from the facts as presented here.

The issue then, under subsection (a)(1)(ii), becomes whether this activity and relationship with the IACP is inconsistent employment that would impair the Captain's impartiality and independence of judgment. Given the nature of the IACP as an association of police officers engaged in similar law enforcement activities, and its lack of any official activities in Maryland (it is not a registered lobbyist under Title 5 of the Ethics Law), we believe that the Captain's efforts would not be inconsistent with his State responsibilities.

A second issue raised here is whether the relationship of this employment to the Captain's State responsibilities brings this situation under§3-104 of the Ethics Law. This section prohibits an official or employee from intentionally using the prestige of his office for his own personal benefit or that of another. We have considered this provision on several occasions. (Opinions No. 80-7, No. 81-32 and No. 81-33) In these opinions we have interpreted§3-104 to restrict acceptance by State employees and officials of fees for services directly and immediately related to their official duties, but have also stated that more than common subject matter or expertise is necessary for an outside activity to be viewed as directly and immediately related to an official's duties. Though this request involves some aspects of both these approaches, we believe, given the total circumstances of the situation, that the Captain's acceptance of payment for participation in the IACP conference would not violate§3-104 of the Ethics Law.

The Captain is not generally involved in the State Police's driver efficiency program either as a manager or a trainer of other police officers. His responsibilities relate solely to installation and maintenance of equipment. Thus, this offer of employment would not appear to relate directly to the specific duties he has as Commander of the Motor Vehicle Division, or otherwise directly arise out of his State work. Further, the Captain's driving and vehicle expertise, while partly related to his State job, were also significantly acquired prior to his State employment. Also, though his general reputation as a speaker appears to have developed through his State duties, we do not believe that this differs materially from Opinion No. 81-32, where we approved the activities of the Administrator of the Division of State Documents, even though they resulted from relationships he developed through his official position.

Nor do we believe that the Captain's original participation in the DECAT course as a State employee requires a different conclusion. While we believe that in some circumstances use of State training opportunities in private endeavors could raise serious questions, the Captain's participation in DECAT does not appear to have resulted in any special knowledge either to be used in his State job or elsewhere. He indicates that driving efficiency is largely a matter of common sense and that he attended the course because it was a trial run of the course and he would be able to provide expertise concerning the various gauges and instruments used in Maryland's police vehicles. Under these circumstances, considering that the proposed outside employer does not have any regulatory or contractual relationships with the Captain's agency, and the fact that the training does not involve Maryland agencies, we conclude that his acceptance of the daily fee and expenses related to the IACP course would not constitute intentional use of the prestige of his office as contemplated by§3-104 of the Ethics Law.

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

Date: August 19, 1981