Our advice has been requested concerning whether the manager of the Employee Relations Office in a large State Cabinet level Department (the Department) may have a private business representing employees in other State agencies in personnel proceedings, or representing State agencies other than the Department in employee relations matters.
The Employee Relations Office handles personnel grievance and other employee-employer relations matters within the Department. The State grievance process includes several "steps" involving review at various levels of an employee's agency with final administrative appeal heard by the Department of Personnel (DOP) or an arbitrator. The Requestor, as manager of the Employee Relations Unit, is involved in several stages of this process. He provides advice and counseling to Departmental personnel officers, managers and administrators; he hears appeals to the Department in Step 4 of the grievance procedure; and he represents its managers in DOP or arbitration hearings. In much of his work he has occasion to deal with union personnel or private attorneys acting on behalf of employees.
The Requestor indicates that he has occasionally been consulted by employees from other departments, as well as by union officials and private attorneys. He wishes to follow this up, providing representational services to private clients employed at other agencies. He states that his service would involve the same types of proceedings in which he is involved for the State in the Department. That is, he would be representing individuals at early grievance steps in their own departments and also in arbitration or DOP hearings. The Requestor indicates that his services would not be on a contingent fee basis but would be provided for a flat fee plus an hourly rate. The Requestor would also like to consider providing employee relations services to other State agencies that may not have in-house capabilities in such matters. He indicates that he does not normally have official dealings with his counterparts in other agencies with whom he could be dealing for his private or State clients.
The primary legal issue raised by the Requestor with regard to his representation of private clients is application to his proposed activities of the outside employment provisions of §3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law).1 His clients apparently would be regular State employees from other agencies. Though special circumstances could be presented where the individual has some relationship with the Department, these private clients would not, as a general matter, seem likely to have contractual or regulatory relationships with the Department. Thus, we believe that the prohibition in §3-103(a)(1)(i) against employment with an entity contracting with or regulated by one's agency would not generally apply to the Requestor's proposed activities.
Section 3-103(a)(1)(ii) of the Ethics Law, however, further prohibits any other employment relationship that would impair an individual's impartiality or independence of judgment. We have interpreted this provision several times since its enactment in 1981. (See Opinion No. 82-21 and Opinions cited therein.) It was included in the Law based in part on our recommendation to the Legislature that authority was needed to deal with situations that present a conflict of interest but do not involve the technical contractual or authority relationships of subsection (a)(1)(i). We have applied the provision narrowly, where the circumstances indicate that, despite the absence of contracts or regulatory authority, there is a relationship between the State job and the outside activity. We have said that the inconsistent employment bar would apply where this relationship raises clear and serious concerns about an employee's ability to carry out his official functions with impartiality and independence of judgment. The question presented by the Requestor with regard to his representation of private clients is whether a relationship exists between his job in the Employee Relations Unit and his proposed private representation of non-Department employees, and whether this results in a likelihood that his ability to do his Department job will be impaired. He would be participating in the same process (the State grievance procedure) in both capacities, and be involved in presenting the employee view of policies and procedures similar to those on which he represents the Department, though he would not be dealing with his own agency. Some of his appearances at the final appeal level could involve the same DOP office before which he appears on behalf of the Department, and he would be expected to have dealings with attorneys and union officials with whom he may work in his official capacity.
The question is whether and how these relationships would impact on the Requestor's service in the Employee Relations Unit. In our view, this situation raises some serious concerns. The labor relations field involves some very sensitive relationships, and we are concerned about the Requestor's ability to deal effectively, in an official capacity, with attorneys and possibly union officials that he also may see in connection with his private work. There is also some question about how he would deal with the various management and policy issues that would come up in the context both of his private work and his official duties, since he would be on different sides of these issues, depending on who he is representing. Thus, under the total circumstances presented by this request, we conclude that a relationship does exist between the Requestor's official duties and his proposed private activities, and that his undertaking them would violate §3-103(a)(1)(ii) of the Ethics Law.
The Requestor has also inquired as to his ability to engage in secondary employment in State service providing employee relations services to State agencies (outside the Department) that do not have in-house capabilities in this area. We have considered dual State agency employment in three separate opinions applying §3-103(a) of the Law prior to its amendment in 1981.2 (Opinions No. 82-33, No. 82-32, and 81-7) The conclusion in all three of these opinions was that the term "entity" in §3-103(a) was not intended to include other State agencies and that therefore secondary employment involving the State was not within the prohibition. The strict prohibition now set out in §3-103(a)(1)(i) of the Ethics Law was the only §3-103(a) employment prohibition in the Law when these requests were considered, and our conclusion in these Opinions relied to some extent on a technical interpretation of the term "entity." The question here is whether subsection (a)(1)(ii), a more general provision not including the term "entity," is appropriately applied to secondary State employment presented by the Requestor, or whether the general policy considerations expressed in connection with Opinion No. 82-33 require a different result. In that Opinion we expressed our view that as a general matter dual State employment is more appropriately handled within the personnel and administrative systems.
Section 3-103(a)(1)(ii) of the Law does have somewhat broader language than subsection (a)(1)(i). As noted, it does not use the term "entity," and prohibits "any other employment" that would impair an individual's impartiality or independence of judgment. A broader application of this section could thus be supported, where the relationships between the two State jobs raise the kind of conflict of interest issues intended to be addressed by the Ethics Law. We noted, for example, to the Requestor in Opinion No. 82-34 that our conclusion should not be read as approval of the employment activity. (The Requestor's office had direct review authority over the activities of his secondary State employer.) Most of the Commission Members are therefore inclined to conclude that this provision may be applied to dual State employment situations, where there are clear personal and organizational conflicts intended to be addressed by the Ethics Law that cannot be controlled by the personnel and administrative systems. We do not believe, however, that the facts presented in this request require such an application to the proposed services by the Requestor to other State agencies. He has indicated that he seldom has contact with his counterparts in other agencies, and he would be representing the same general State management policy in both his primary and secondary activities. Nor does it appear that his proposed work for other agencies would be related to his Departmental duties so as to impair his impartiality or independence of judgment.
Moreover, we do not generally believe that the Requestor's activities would be barred by §3-104 of the Law, which prohibits the intentional use of the prestige of one's office for one's own personal gain or that of another. The Requestor has indicated he does not intend to advertise or formally solicit business. He states that he expects his availability to be known by word-of-mouth. Although he is an attorney, the Requestor's experience and background in the employee relations field has been gained entirely through his State employment with the Department and it seems likely that he would be known to others in the system primarily, if not solely, by virtue of his official status as Manager of the Department's Employee Relations Office. We have never considered the application of §3-104 to secondary employment within the State system, which has controls not existing in private outside employment situations. Its relationship to outside employment situations generally, however, has been considered on several occasions. In two recent Opinions (No. 81-44 and No. 82-36) we found that acceptance of a private job referred to an individual in his official capacity was prohibited by §3-104, and, on the other hand, that reference to experience and expertise developed as a State employee in seeking other employment does not constitute a violation of §3-104.
We believe that the situation presented by the Requestor is more like that presented in our Opinion No. 82-36. Additionally, we understand that the Requestor's activities will be reviewed within the personnel secondary State employment rules, and believe that a simple letter noting his availability and identifying his State employment only as a standard and ordinary part of a resume would not come within the proscription of §3-104 of the Ethics Law. He should, of course, take great care in his dealings with other agencies to avoid making any use of his official title, or using the facilities of his Departmental office. (See our Opinion No. 80-22.)
Herbert J. Belgrad, Chairman
Jervis S. Finney
Reverend John Wesley Holland
Betty B. Nelson
Barbara M. Steckel
Date: August 25, 1982
1 As the Requestor has stated that his fees will not be contingent, the §3-103(c) prohibition against contingent fee representation would appear to apply. He should, however, be aware of this prohibition.
2 Laws of 1981, Ch. 796, eff. June 1, 1981.