A request has been received from a private attorney (the Attorney) for advice as to whether he may be employed part-time at the University of Maryland School of Law to teach an "Attorney General Clinic," and also serve as a lobbyist for a private client.
The Attorney, in addition to his private practice, teaches a law course that is a clinic program offered in cooperation with the Consumer Protection Division of the Attorney General's Office (CPD). By pre-arranged agreement the CPD refers television repair fraud cases and layaway payment cases to the class, where the students handle them under the Attorney's supervision. For purposes of the course he is designated as a Special Assistant Attorney General, and he manages the cases consistent with the policies of the Attorney General's Office and the CPD. He is compensated by and treated for personnel purposes as an employee of the University, rather than the Attorney General's Office.
In his private practice the Attorney plans to represent the Maryland Rental Equipment Association (the MREA), primarily acting as a lobbyist for it during the 1982 Session of the General Assembly. The bills that the organization is interested in include proposed legislation concerning the criminal conversion and theft laws regarding persons who rent equipment, and also proposed expansion of mechanics' lien laws to include equipment rental firms. The Attorney indicates that MREA's members tend to be involved in general types of equipment rental rather than specializing in particular items. Thus, none of its members are TV rental operations that are currently the subject of CPD action. Also, the Consumer Protection Division confirms that the cases referred to the clinic deal with fraud in TV repair operations rather than currently active TV rental cases.
The Chief of the CPD indicates that his Division has substantial legislative activities, reviewing most legislation to determine whether a proposal would impact on consumers. If proposed legislation does involve consumers, the Division's actions range from testifying at the request of a committee to taking a formal affirmative stand on particular legislation. The only matter currently expected to be of concern in the Attorney's lobbying activities that CPD would be interested in involves amendment to mechanics' lien laws. The CPD Chief states that he cannot at this point evaluate the extent of the Division's interest in proposals on this subject, or what kind of action the office would take.
The question here is to be whether any of the employment provisions of §3-103(a) are of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, The Ethics Law) would operate to limit the Attorney's proposed lobbying activities for his private clients.1 These provisions, first, bar outside employment with an entity that has a contract with or is under the authority of one's agency (section 3-103(a)(1)(i)). The situation presented here does not appear to raise an issue under this portion of §3-103(a). Given the total circumstances surrounding the MREA legislative interests, the CPD program, and the clinic course, we do not believe that an authority relationship, as contemplated by §3-103(a), exists between the MREA and either the School of Law or the Attorney General's office. There also do not appear to be any contracts or contract negotiations between the Attorney's State employers and his private clients. Further, in our view the common legislative interests of the CPD and the MREA are not sufficient to place CPD in a position of authority over the MREA.2 Nor do we believe that potential CPD jurisdiction over MREA members subject to consumer laws, necessarily, in the facts presented here, brings the organization itself under CPD's authority. Thus we conclude that the Attorney's service for the MREA is not barred by §3-103(a)(1)(i) as employment with an entity contracting with or under the authority of his agency.
Section 3-103(a)(1)(ii) of the Ethics Law, however, further prohibits any employment that would impair an individual's impartiality or independence of judgment, regardless of whether an employee's State agency has authority over his private employer. Thus an issue could be raised concerning whether the Attorney's services for his private client are barred even though the client may not be directly regulated by CPD or the Attorney General. We have applied this provision in two prior Opinions (Nos. 81-28 and 81-41) and have generally concluded that it should be read narrowly as a complement to the restrictions of §3-103(a)(1)(i). We therefore believe that the Attorney's plans, as they are currently described, are not barred by this provision. The cases referred by CPD to the clinic course cover very carefully defined types of situations which, according to the Attorney, are unlikely to involve the MREA or its members. The Attorney has also indicated an intention to avoid any lobbying actions on behalf of the MREA that would involve consumer-related issues likely to be of concern to CPD. Moreover, neither the Attorney nor CPD are in a position to state at this time that the interests of MREA and CPD would overlap or what if any involvement CPD may take on legislative matters of interest to MREA.
Under these circumstances we do not believe that the Attorney's activities for his client would necessarily constitute "inconsistent employment," as contemplated by §3-103(a)(1)(ii) of the Ethics Law. We wish to clarify, however, that our conclusion is limited strictly to the facts as they are known to us and as they stand at this time. The legislative process is a dynamic one and, as the parties here have indicated, it is not possible to speculate on whether situations could develop in the Attorney's lobbying activities that would be viewed as inconsistent with his State service, either under the Ethics Law or as an administrative matter within the Attorney General's office. We strongly urge both the Attorney and the Consumer Protection Division Chief to take care as the legislative effort progresses to ensure that conflicting situations are avoided. Should questions arise as to particular situations and the Ethics Law, further advice may be requested from the Commission.3
Herbert J. Belgrad, Chairman
Jervis S. Finney
Reverend John Wesley Holland
Betty B. Nelson
Barbara M. Steckel
Date: November 4, 1981
1 The types of cases referred to the clinic course fit within two narrow areas that are clearly established at the beginning of the course; the categories of cases identified do not seem to reach the specific subject matter or concerns involved with the Attorney's proposed lobbying activities. There would thus appear to be little likelihood of a problem arising under the Ethics Law's §3-101 disqualification provisions. Nor, given the character of the Attorney's relationship with the University and the Attorney General's Office and the nature of his private employment, are there questions raised under the prestige of office provisions in §3-104 of the Law. Moreover, as the Attorney indicates that his work for the Association does not involve contingent fees, the provisions of sections 3-103(c) and 5-104 also do not come into play here.
2 See Ethics Commission Opinions No. 80-22, 81-5 and 81-14 regarding the authority over legislative matters held by those tangentially involved in the legislative process.
3 Note that this Opinion deals only with Public Ethics Law questions and not with agency policy issues that this request may raise in the Attorney General's office, or with any potential application of the attorney Code of Professional Responsibility.