82.32

OPINION NO. 82-32

An opinion has been requested concerning whether the Deputy Secretary (the Deputy) of the Department of Health and Mental Hygiene (DHMH) may serve as a faculty member to the University of Maryland School of Medicine.

The Deputy was selected for his position after a search resulting in a determination that he possessed the clinical skills, public health orientation, and administrative experience necessary to fill this key position. He had had significant hospital staff experience in community medicine and non-compensated academic experience at the University of Maryland School of Medicine. Subsequent to his DHMH appointment, the Deputy was given a non-tenured but compensated appointment in the Department of Epidemiology and Preventive Medicine at the University of Maryland School of Medicine. This School and the University Hospital are both part of the University of Maryland. They have separate budgets, though the various departments of the Medical School also function as the same departments of the Hospital. All Hospital physicians must be Medical School faculty, though faculty members need not necessarily practice at the Hospital. While there may be some significant practical relationships between the Medical School and the Hospital, we are informed that the Department of Epidemiology and Preventive Medicine has few if any clinical functions and that neither its faculty nor its residents have any significant interaction with the Hospital.

The issue raised by this request is whether the Deputy's secondary employment at the University constitutes employment barred by §3-103(a)(1)(i) of the Public Ethics Law (Article 40A, §3-103(a)(1)(i), Annotated Code of Maryland, the Ethics Law).1 This provision bars any employment by an official or employee with an entity that is under the authority of his agency or that has or is negotiating a contract with his agency. The University Hospital is, as are all hospitals in Maryland, subject to substantial regulatory control of DHMH. Also, the School of Medicine has currently and in the past has had several contracts with DHMH to provide medical services to Departmental facilities. Issues have been raised in consideration of this request as to whether the relationship between the Medical School and the Hospital warrant treatment of the Deputy's secondary employment as under the authority of his agency, and whether DHMH/Medical School interagency agreements should be viewed as contracts for the purposes of §3-103(a)(1)(i).

Though we are inclined to believe that the Hospital and the Medical School do constitute a single entity, and that interagency agreements are contracts as contemplated under §3-103(a), we do not make an official determination on these issues, as we believe this request is controlled by our interpretation of the term "entity" in our Opinion No. 81-7. This Opinion involved an employee in the Department of Budget and Fiscal Planning who wished to be a part-time teacher at a community college that is also a State agency. We concluded in that Opinion that the term "entity" does not include State agencies, but, rather, is intended to encompass entities other than the State. We therefore conclude in the circumstances presented in this request that the Deputy's secondary employment as a University faculty member is not employment with an "entity" intended to be barred by section 3-103(a)(1)(i).2

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

Date: July 21, 1982

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1 This provision of the Ethics Law, as amended, Law of 1981, Ch. 796, eff. June 1, 1981, is comparable to §3-103(a) of the Law as it was in effect at the time this request was considered.

2 It should be noted, however, that since consideration of this request, §3-103(a) was amended in 1981 to include subsection (a)(1)(ii), which further prohibits "any other employment which would impair the official's or employee's impartiality or independence of judgment." While we do not rule out the possibility that dual State employment would also be excluded from this provision, we wish to clarify that our determination relies solely on our interpretation and application of the term "entity" as it appears in the current §3-103(a)(1)(i). The dual employment situation presented in this request is no longer existing, and we believe that our interpretation of the term "entity" is fully dispositive of the issues raised at the time of the request. We therefore do not here resolve the question of whether employment at another State agency could be viewed as "inconsistent" as set forth in §3-103(a)(1)(ii).