82.39

OPINION NO. 82-39

An opinion has been requested concerning whether a conflict of interest exists for a member of the Board of Electrologists (the Board) who is an electrologist and electrology instructor employed by an entity that provides a course meeting the Board's licensure requirements, and is also an owner/instructor of another entity that also offers such courses.

This request is presented by the Chairman of the Board of Electrologists regarding a possible conflict of interest on the part of a member of the Board (the Member). The issue was raised by a Legislative Auditor, who noted the Member's employment with a private non-profit consortium that offers a 100-hour in-state electrology education program which is a prerequisite for licensure as an electrologist. The Member is also an owner/instructor of another private entity which also offers courses in implementation of the Board's education and licensing program. As a result of the auditor's inquiry, and advice of counsel from the Office of the Attorney General, the Board has acted to bar the Member from participation "in the drafting and approval of regulations or in other Board decisions affecting education requirements for licensure." Nor is she permitted any access at all to any "current" examination.

The Board of Electrologists is established in Title 5 of the Health Occupations Article, Annotated Code of Maryland. It is composed of seven members appointed by the Governor, five of whom must be licensed electrologists or licensed electrology instructors (§5-102(b)). The other two members must be consumer members who, in addition to being members of the general public, may not be or ever have been an electrologist or in training to become an electrologist, or participate or ever have participated in a commercial or professional field related to electrology (§5-202(b) and (d)). The Governor's appointments office confirms that the Member is appointed as an electrologist and electrology instructor. The Board is empowered to adopt standards for the practice of electrology; it issues licenses and develops and gives examinations to electrologists and electrology instructors; it has authority to deny, revoke or suspend a license and to reprimand a licensee; it establishes standards for and approves electrology education programs; and it has enforcement authority over miscellaneous provisions regulating the practice of electrology.

The legal question raised by this request is application of the outside employment and interest provisions of §3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law), and particularly its exception provisions. Section 3-103(a) prohibits an official or employee from being employed by or having an interest in an entity that is under the authority of his agency. Given the scope of the Board's authority and the activities of the entities with which the Member is affiliated, she would appear to come within the prohibition. Subsection 3-103(a)(2)(i), however, excepts from the prohibition interests or employment of members of boards or commissions where the individual is appointed pursuant to a requirement that persons subject to a board's jurisdiction be appointed to it. As the Member is appointed as an electrologist and electrology instructor pursuant to a statutory requirement that such persons serve on the Board, we believe that she fits within the exception provisions of subsection (a)(2)(i).1

We thus advise the Board's Chairman and the Member that her continued service on the Board while she holds the specified employment and interests as an electrology instructor is not barred by §3-103(a) of the Ethics Law. She should be aware, however, of the other conflict of interest provisions of the Law that continue to apply to her. These include §3-101, which prohibits her participation in any matter in which she has an interest or which involves as a party an entity in which she has an employment or financial interest; §3-104, which prohibits the intentional use of the prestige of her office for her own personal gain or that of another; and §3-107, which bars the use by officials of confidential information for their own economic benefit or that of another2 matters, as well as her access to examination information.

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

Date: August 25, 1982

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1 Moreover, the Member is currently being considered for reappointment. Even if the subsection (a)(2)(i) exception did not apply, she would apparently be able to secure exemption from the prohibition by disclosure in connection with her appointment pursuant to subsection (a)(2)(iii). This section provides for exemption as to interests or employment that would be a conflict at the time of appointment, if the interest or employment is disclosed to the appointing authority, the Ethics Commission, and the Senate if confirmation is required. It should be noted in this regard that the disclosure system developed in implementation of this exemption is completely separate from the disclosure required by §4-101 of the Ethics Law. Section 4-101 is an annual disclosure program applying to members of boards and commissions; the specific disclosure requirements under this section are currently the subject of regulatory action (see 8:26 Md. R. 2122 (December 28, 1981)).

2 We note in this regard the action already taken by the Board regarding the Member's disqualification from participation in certain matters, as well as her access to examination information.