A request for an advisory opinion has been received concerning whether a Driver Improvement Advisor with the Motor Vehicle Administration (MVA) may engage in outside employment as a professional driving instructor.

The subject of this request (the Employee) is employed at the MVA as a Driver Improvement Advisor. His job involves providing driver improvement counseling and conferences, primarily in a classroom setting, to currently licensed drivers referred to the driver improvement clinic from various judicial or administrative sources. He states that he does no behind-the-wheel work, and, further, that none of the individuals he deals with are new operators. The Employee previously held a professional driver instructor license, but surrendered it when he became an MVA employee. He wishes to reinstate his license so that he may be employed by a professional drivers school to provide behind-the-wheel vehicle training. He indicates he would not personally appear in any licensing actions.

The Employee works in the Driver Rehabilitation Clinic that is part of MVA's Division of Driver Control and Rehabilitation. This Division is one of several divisions reporting to the agency Administrator; driver licensing functions and licensing and regulation of driver instructors and driving schools are each handled by separate divisions. The Medical Advisory Board (MAB), which has some functions regarding licensing of new drivers and referral of currently licensed drivers for medical purposes, is an advisory entity that reports directly to the Administrator. The Rehabilitation Clinic receives student referrals from MAB along with the various other judicial and administrative sources. Staff in the Employee's office also occasionally provide clerical and ministerial support to MAB and may therefore come in contact with MAB physicians.

This request raises issues under the outside employment provisions of section 3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law), which prohibit employment with an entity regulated by an employee's agency. (Section 3-103(a)(1)(i). Professional driving instructors and drivers schools are licensed by MVA. Thus the Employee's outside employer would quite plainly be subject to MVA regulation, as would his own activities as a licensed driving instructor. His proposed employment is therefore prohibited by section 3-103(a)(1)(i) unless it is viewed as allowable under the exception criteria authorized by section 1-103(a)(1). These criteria are authorized by the provision that section 3-103(a)'s outside employment prohibitions apply "except as permitted by regulation of the Commission...where such employment does not create a conflict of interest or appearance of conflict...." Regulations implementing these criteria are currently being considered by the Commission. However, we do not believe that such provisions would apply in this situation.

Though the Employee's immediate MVA responsibilities appear not to be closely and directly related to his proposed outside employment, both he and his outside employer would have significant regulatory ties to his State agency. Under the Transportation Article, Subtitle 15, Annotated Code of Maryland, and Title 11, Subtitle 12 of COMAR, the MVA regulates in substantial detail both professional drivers schools and professional driving instructors. The agency administers written examinations, requires surety bonds, establishes place of business requirements and curriculum and record keeping requirements, regulates training vehicles and advertising, and establishes rules of conduct for driving instructors. These rules of conduct include limitations on relationships between driving instructors and MVA employees. MVA also provides subsidies to schools that participate in the driver education program on a per student basis; it also has a driver education requirement as a condition of licensing for those under age 18.

Further, in addition to the direct regulation of the drivers schools and driving instructors, MVA is the licensing authority issuing operator's permits to clients of the Employee's proposed outside employer. Since the employer's continued viability relates to the success of the school's clients in obtaining a drivers license, this MVA regulatory activity could be viewed as having a substantial economic impact on the drivers school employer. Additionally, though the agency is large and the various units function separately, MVA has expressed concern that the mere fact that he is known to be an MVA employee could raise problems with the motor vehicle licensing function and the MAB review function as to new operators.

While we do not question the Employee's integrity or doubt his intention to avoid direct contact with MVA as a private driving instructor, we believe that this situation raises the kind of appearance of conflict of interest referenced in section 1-102 of the Ethics Law and intended to be barred by section 3-103(a). Thus it is our view that application of the exception provisions set forth in the section would be inappropriate here even if the completed regulatory provisions were available. We therefore advise the Employee that outside employment as a professional driving instructor is prohibited by section 3-103(a) of the Ethics Law as long as he is an employee of the MVA.

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

Date: January 12, 1982