82.34

OPINION NO. 82-34

An Ethics Commission opinion has been requested as to whether a University of Maryland professor (the Requestor) may, if elected, serve in the Maryland House of Delegates and retain his full-time position at the University.

The Requestor is a full-time tenured professor at the University of Maryland who plans to run for the Maryland House of Delegates in a district that does not include the University. He holds the rank of Full Professor in an educational department on the University's College Park Campus. He indicates that approximately 70% of his time involves teaching graduate students and approximately 20% of his time, he says, is devoted to research. The Requestor states that he devotes the remaining 10% of his time to "public service" types of activities, including provision of consulting and evaluation services to professional organizations.

The Requestor serves as Assistant Chairman of his Department and in this connection would have some administrative duties such as class scheduling and teaching assignments. He states, however, and the Department Chairman confirms, that he does not have any purchasing responsibilities. He indicates that as the Department has no capital equipment, laboratory equipment or machinery, it does not do any significant purchasing. The Department Chairman states that the Requestor does not generally get involved in grants or other departmental money matters. The Chairman also indicates that they have discussed the Professor's candidacy and possible service in the Legislature; he states that the Requestor's University schedule can be adjusted so that his service in the Legislature would not have any adverse effect on the Department.

In our Opinion No. 80-2 we considered the application of the Public Ethics Law (Article 40A, Annotated Code of Maryland, the Ethics Law) to political activity of State officials and employees. Citing the provisions in §§28-1 and 28-2 of the election Law (Article 33, §§28-1 and 28-2, Annotated Code of Maryland), we concluded that the Ethics Law does not absolutely prohibit political activity, including running for office. We noted, however, that even allowable political activity could be in violation of the specific provisions of the Ethics Law. The issue of whether a person could, if elected, hold a particular position and continue in their State employment was not resolved in that Opinion.

The Requestor has specifically raised the latter issue, inquiring as to whether any provision of the Ethics Law would bar his serving in the House of Delegates and retaining his position as a full-time University of Maryland faculty member. As service in the General Assembly could be viewed as outside employment, the primary issue here arises under section 3-103(a) of the Ethics Law. Subsection (a)(1)(i) of this provision prohibits employment with an entity that is under the authority of or has contractual dealings with one's agency, while subsection (a)(1)(ii) bars any other employment that would impair an official's or employee's impartiality or independence of judgment. We have reviewed these employment limitations and our earlier opinions interpreting them, and have concluded that service in the Legislature was not the type of outside activity intended to be addressed at all in section 3-103(a).

This view is in part substantiated by the facts that there are several members of the Legislature who are regular State employees, and that this type of dual employment has been officially countenanced in Article 40, §44 of the Annotated Code. This section provides for automatic leave of absence to be granted to State employees who serve in the Legislature. It has been interpreted by the Attorney General as overruling the common law doctrine of incompatibility of executive branch employment for State legislators. (Attorney General Op. No. 4, Title 19 COMAR.) Moreover, legislation introduced in both 1973 and 1974 to limit other State employment by legislators failed of enactment both years, during the same session that the election laws were amended to broaden the scope of political activity allowed by State employees.

Further, we believe that adoption of a situational approach in this area would raise some substantive and administrative problems. It would leave the Requestor in the position of having to commit himself to the electoral process and possibly being elected, with his ability to serve under the Ethics Law ambiguous and dependent on unknown and unpredictable fact situations. Also, since the significant unknown factors here have to do with the nature of the Requestor's legislative duties, the Ethics Commission's adoption of this approach could be viewed as having the effect of regulating his conduct as a legislator, a result that was probably not contemplated in the assignment of administrative responsibilities in the Law. In view of all these factors, and despite our awareness that conflicts between legislative and executive branch duties may and do occur, we conclude that service in the Legislature is not outside employment intended to be barred for State employees or officials under §3-103(a).

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

Date: July 21, 1982