82.50

OPINION NO. 82-50

An advisory opinion has been requested as to whether an individual may continue to serve as a Sanitarian in a County Health Department if her spouse has a part-time business as a surveyor.

This request is presented by the Director of Environmental Health in a County Health Department (the Health Department, or the Department). It involves an inquiry by an individual (the Employee) who was recently employed as a Sanitarian I in the Health Department. In this position the Employee is involved in the agency's responsibilities for evaluating lots and subdivisions as to their acceptability for the installation of individual water and sewage systems. Basically, this program involves the testing of soil and other land characteristics (primarily through percolation tests) to determine the extent to which a property can handle water supply and sewage treatment systems. Based on application of various technical criteria, the Health Department advises the landowner of the minimum size lot (by width and square footage) that is necessary for installation of a sewage or water supply system.

The Department may be working in this program either with a landowner building a single home or other structure, or with an individual planning a subdivision (2 or more lots). In each case, a survey or plat plan is required to define the area of the building lot. The surveyor, who is employed by the landowner, is told the lot size determined to be required by the Health Department, and given this fact, prepares a survey setting forth the boundaries of the lot. For single units, this process is usually not difficult, especially for larger pieces of property, where there is flexibility as to placement of the lot boundaries. For subdivisions, the surveyor's work is more crucial, given the landowner's usual goal of dividing the property to define as many lots as possible within the Department's minimum lot size requirements. Often the landowner and surveyor may work with the Department in developing the plat plan to assure that the submitted plan is approvable by the Department.

As a Sanitarian I, the Employee is responsible for conducting percolation tests that determine the minimum lot size or require a determination that the property must be rejected for any sewage disposal. She is one of four Sanitarians in the Department's Environmental Health Division, and also is involved in restaurant and water system inspections, swimming pool inspections, the rabies inoculation program, and mobile home park approvals. As a recently hired employee the Employee is currently subject to relatively close supervision. However, the Director indicates that she is now beginning to work on her own, and he anticipates she will be supervised less and less as she gains experience. Her supervisor states his view that there could be some concerns if the Employee is doing soil evaluations on property where her spouse is employed by the landowner, but he indicates that assignment to her of properties in which her spouse is not involved would not present a problem for his management of the division.

The employee's spouse is an engineer whose current full-time work with a local architect-engineering firm does not bring him into contact with the Department. He is a surveyor, however, and anticipates taking individual clients on a part-time basis. The Employee indicates that she would not be working for him in this effort. She states that she would get involved only if he were to make his business full-time, in which case she would terminate her State employment in order to assist him. The Employee has indicated that her spouse does not anticipate doing subdivision work, probably at all, and certainly not in Maryland. He would be working with landowners developing individual lots, and contemplates dealing only with larger size lots (an acre or over) where the Department's minimum lot size requirements are unlikely to be an issue.

Section 3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law) prohibits an official or employee from 1) having an interest or being employed by an entity that is under the authority of or contracts with his agency (subsection (a)(1)(i)), or 2) having any other employment that would impair his impartiality or independence of judgment (subsection (a)(1)(ii)). The Employee has indicated that she does not anticipate being involved in her spouse's surveying activities. Under these circumstances, she would not appear to have an employment relationship that would bring her under the employment prohibitions of §3-103(a)(1).1

Nor do we believe that the §3-103(a)(1)(i) prohibition against holding a financial interest in a regulated or contracting entity would apply as an absolute bar to her husband's activity. The term "interest" is defined in §1-201(n) of the Ethics Law to include any legal or equitable economic interest, direct or indirect. We have on one occasion found that a spouse's business interest was also an interest of the employee which was barred by §3-103(a). Opinion No. 82-12. In this Opinion, there was significant involvement in the business by the employee, including a pre-existing direct ownership interest that was to be divested solely to meet the technical requirements of the Ethics Law.

In the absence of these kinds of facts, however, we have generally concluded that interests of a spouse need not be automatically attributed to an employee. Opinions No. 80-17 and No. 81-37. We believe that this general approach is applicable to the situation presented in this request, so long as the Employee does not become actively involved in her husband's surveying business. We thus conclude that the restrictions of §3-103(a) do not apply to absolutely bar the continued service of the employee as a Sanitarian while her husband has a part-time surveying business.

She should, however, be aware of the continuing application of other provisions of the Ethics Law. Particularly, §3-101(a), (a)(2), and (a)(4) could be of concern. This section prohibits non-ministerial participation by an employee in any matter in which the employee, or a spouse, has an interest, or which involves as a party an entity in which a spouse is an officer, director or employee or with which the spouse has a contractual relationship. The application of these provisions may vary as a technical matter, depending on particular circumstances. The Employee and her supervisor, however, should keep in mind that §3-101 may require her disqualification from matters involving landowners for whom her spouse does surveying work. She should also be aware of other provisions of the Law, including: 1) §3-104, which would bar her spouse's use of her position in soliciting business, and 2) §3-107, which would forbid her from using official information for her own benefit or that of her spouse.

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

Date: October 20, 1982

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1 The Employee should be aware that we have in prior opinions found the existence of an employment relationship even without compensation, where an individual provided services and had a significant commitment or loyalty to an entity. Opinion No. 82-43. Thus, our conclusion that the outside employment provisions of §3-103(a)(1) do not apply is based on the Employee's assurance that she will not be involved in her husband's efforts. If she does become involved, even without direct compensation, she may risk a violation of this section, given the relationship between her spouse's surveying activities and the responsibilities of the Department.