81.39

OPINION NO. 81-39

The State Ethics Commission has been requested to provide advice as to whether the Director of the Optometric Center of Maryland (the Appointee) may serve as a member of the Maryland Board of Examiners in Optometry (the Board) if his private employer develops and offers continuing education courses that are approved by the Board.

The Appointee is an optometrist who has been nominated to serve on the Maryland Board of Examiners in Optometry. He fills one of the positions required to be filled by a practicing optometrist. The Board is established in Article 43, §368-384, Annotated Code of Maryland. It has broad authority to establish and administer examination and licensing requirements for optometrists in Maryland. The Board's enabling law provides that one of the criteria for annual license renewal is that the optometrist evidence compliance with continuing education requirements to be established by the Board (not to exceed 25 hours within a calendar year).

In addition to his private practice, the Appointee serves part-time as the Director of the Maryland Optometric Center (the Center), which is a private nonprofit entity that operates an optometry clinic. It also engages in a variety of educational activities, including provision of internship programs to 4th year students in optometry. The Center's clinic is certified by the National Optometric Association, and its internship programs are certified by the cooperating colleges whose students are involved; all of the Center's optometrists are, of course, licensed by the Board. The Center also engages in a wide range of educational activities such as development of seminars, conventions, and courses that are open on a fee basis to any optometrist who wishes to participate. Except for the review and approval of its continuing education courses (discussed below), the Center is not regulated by the Board, nor does it receive any funding from the Board.

In order for participants in the Center's activities to use them to meet the continuing education requirement set forth in Article 43, the programs must be approved by the Board. The Appointee indicates that development and offering of courses and programs is a dynamic process; programs are offered regularly by many different groups and involve various and changing content. Board review is thus a continuing effort, and is handled regularly by a member of the Board who chairs its continuing education committee. Entities offering programs that could be viewed as continuing education submit information regarding the program (i.e., its agenda, its speakers, etc.) to the Board's committee for review.

If a program is viewed as a bona fide educational activity in the field of optometry then it is certified to qualify as continuing education and renewal applicants may include it in identification of their continuing education activities. The Appointee indicates that this approval process is usually handled by the Committee and is seldom a full Board decision. The Board has issued regulations at COMAR 10.28.02, which set forth the mechanism for proving continuing education participation. The regulations also list the types of activities that will qualify as continuing education, specifically including courses arranged by the Center.

The issue here is application of the board and commission exemption language in §3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law). Section 3-103(a) would prohibit the Appointee's employment with the Center while he serves on the Board if the Center is under the Board's authority or has a contract with it, or if the employment would impair his impartiality or independence of judgment. The Center is not within a class of entities that are automatically under the authority of the Board; the Center need not conduct continuing education programs, or it could choose to conduct them without regard to whether they qualify as continuing education under the Board's rules. However, the Center's ability to compete with others in marketing its programs must depend largely on their qualification as continuing education. It has, then, as a factual matter, placed itself within the regulatory scope of the Board, and is even specifically referenced in the Board's regulations. Also, the Board by approval of the Center's programs could be viewed as conferring a substantial benefit on the Center.

Thus, it would appear that the Appointee's employment would be covered by the prohibitions of §3-103(a), unless he may be exempted in accordance with any of the various exemption provisions of the section1 It is our opinion that the exemption provisions of §3-103(a)(2)(iii) are appropriately applied in these circumstances. This exemption provision allows private employment held at the time of appointment which would otherwise be a conflict under §3-103(a) if the employment "is publicly disclosed to the appointing authority, the Commission, and, in instances where confirmation is required, to the Senate prior to confirmation." In reviewing application of this exemption in our Opinion No. 81-38, we concluded that it should apply, where there is proper disclosure, to "conflicting transactions that are similar to or related to a situation that results in an appointee's private employment being a conflict at the time of appointment." The Appointee is disclosing his employment at the Center and its regulatory relationship to the Board. We therefore conclude that the circumstances of this situation bring it within this exemption.

The existing conflict which is being disclosed in connection with this appointment, however, has to do with particular continuing education program activities regulated by the Board. We believe that the exemption is limited to only these types of approval actions, rather than more generally exempting any conflict arising out of the Appointee's employment at the Center. As we noted in our Opinion No. 81-38, we believe that the purpose of the §3-103(a)(2)(iii) exemption is to allow appointment of qualified persons, after disclosure of disqualifying interests or employment, thus allowing the appointing authority to balance the State's needs in acquiring a person's services against the concerns raised by an identified conflict of interest. It is therefore our view that the exemption should only apply to identified situations or situations that are similar to or related to those that are disclosed.

For example, the Board has authority to make grants to entities to develop courses. It has never had the funds to exercise this authority, but if it did, the Center could be eligible for such grants. We do not believe that the exemption in §3-103(a)(2) (iii) should apply in these or other speculative situations that could arise in the future involving the Board and the Center. To apply the exemption in such circumstances where the extent of a possible conflict of interest could not be known at the time of appointment would not, in our view, be consistent with the Law's approach to disclosure and the appointment process.

We therefore conclude that if the disclosure provisions of §3-103(a)(2)(iii) are followed, the Appointee here will be exempted from the prohibitions of §3-103(a)(1) as they relate to his employment with the Center and the approval of its continuing education programs by the Board. The Appointee should be aware, of course, that this exemption provision does not excuse him from compliance with the other conflict of interest provisions of the Ethics Law. These include, for example, disqualification from participation in matters in which an official (or certain relatives or business entities with which he is connected) has an interest, as well as prohibitions against acceptance of certain gifts and misuse of official position or confidential information.

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

Date: October 15, 1981

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1 The Appointee is an optometrist licensed by the Board and therefore subject to §3-103(a) by virtue its authority over him. However, as he is appointed to fill an optometrist position, he would appear quite clearly to come within the exemption provisions of §3-103(a)(2)(i), which relate to persons appointed pursuant to a statutory requirement that persons subject to an agency's jurisdiction be appointed to it. The potential conflict arising from his status as a licensee of the Board is therefore not further addressed here. However, since the Board's enabling law requires appointment of optometrists, rather than those engaged in optometry education, it would appear that the §3-103(a)(2)(i) exemption goes only to the Appointee's status and activities as a Board licensee, rather than educational activities incidental to his professional license.