The Commission has received a request for advice as to whether a Legislative Analyst (the Requestor) in the Department of Legislative Reference (DLR) may serve on the Board of Directors of a private non-profit organization involved in work with the vocationally handicapped.

The Requestor is a Legislative Analyst whose primary DLR responsibility is to serve as supervisor of bill drafting for the General Assembly. During the legislative interim he served as staff to the Washington Suburban Sanitary Commission Statutory Review Committee and the Committee on Intergovernmental Cooperation. During and immediately before the Session, however, his job is to direct and supervise DLR staff in providing drafting services to committees and to individual legislators. He is not involved in the process of reviewing executive agency budgets.

The Requestor has been asked to serve on the Board of Directors of Rehabilitation Opportunities, Inc. (ROI), a non-profit organization involved in providing employment opportunities to the vocationally handicapped. He was asked to serve by the Chairman of ROI's Board, who is his spouse's supervisor and is also a social friend. ROI is funded in part by State funds from the Division of Vocational Rehabilitation (DVR) in the Department of Education; it has received CETA funding in the past and may also occasionally receive funds from the Mental Retardation Administration and from local health departments. The firm also receives funds from the United Way, though the great bulk of its funding is income earned through its contract sales. ROI does not engage in any lobbying activities, nor does its Director anticipate doing so in the future.

The Director of DLR is aware of the Requestor's proposed service on ROI's Board. He indicates that the bill drafting supervisor is unlikely to be involved in drafting bills that would involve grant or funding programs that deal with ROI. The Director indicates that DLR, as a policy matter, does not believe that this proposed activity would create problems in the agency, so long as the organization is not a lobbyist and so long as it is clear that the Requestor may not participate should a situation arise affecting a grant program that involves ROI.

This request raises issues under §3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law) which prohibits outside employment with an entity that contracts with or is under the authority of one's agency (subs. 3-103(a)(1)(i)), as well as any other employment relationship that would impair one's impartiality or independence of judgment (subs. 3-103(a)(1)(ii)). An initial question is raised by the fact that the Requestor's service to ROI will be unpaid. We have, in dealing with outside activities involving service as a non-compensated Board member, generally looked to the substance of a relationship and the type of duties and commitment involved rather than relying solely on the existence of compensation. See Opinion No. 80-4. Following this approach, we conclude that the Requestor's relationship with ROI is an employment relationship as contemplated by §3-103(a).

The question, then, is whether there is an authority relationship between ROI and DLR that would bring the Requestor's service for ROI within the prohibition of §3-103(a)(1)(i). This Commission has also considered questions regarding the relationship of legislative employees to persons who are impacted by legislation, and has generally found no "authority" over individuals or entities whose activities may be indirectly impacted by legislative action. See, i.e., Opinion No. 80-22, where we concluded that the fact that a county might be impacted by bills drafted in DLR and passed by the General Assembly did not bring the county under the authority of DLR.

We believe the facts here are similar to the situation in our Opinion No. 80-22, and therefore conclude that ROI need not, based on these facts, be viewed as an agency under the authority of DLR as contemplated by §3-103(a)(1)(i) of the Ethics Law. Nor do we believe that the facts here suggest any connection between DLR and the Requestor's proposed outside activities that would result in impairment of his judgment or impartiality in violation of §3-103(a)(1)(ii). We therefore advise the Requestor that service on the ROI Board as proposed by him would not constitute a violation of the prohibitions of sections 3-103(a) of the Ethics Law.

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

Date: January 12, 1982