83.02

OPINION NO. 83-2

An opinion has been requested by an Assistant Attorney General for the State Department of Education concerning whether and the extent to which 3-101 and 3-103(a) of the Public Ethics Law (Article 40A, §§3-101 and 3-103(a), Annotated Code of Maryland, the Ethics Law) apply to the service of a plumbing apprenticeship training official (the Official) on the State Board of Education.

The Official is a recent appointee to the State Board of Education (the Board) who is employed as the Director of Training of the Joint Apprenticeship and Training Committee (the Joint Committee). This entity is established by trust agreement between management and labor in the plumbing industry and is supported by contributions from these private sources. The Committee's function is to develop and implement apprenticeship programs for the plumbing trade. Apprenticeship programs developed by the Committee are presented to and reviewed by the Maryland Apprenticeship and Training Council (the ATC), which is part of the Division of Labor and Industry in the Department of Licensing and Regulation. The ATC is established in Article 89, §53-57, Annotated Code of Maryland, section 53(b) of which provides that no apprenticeship or training program that either accepts fees from students or is financed in whole or in part by State funds may operate unless it is first approved by the ATC. Section 53(b) also provides that apprenticeship programs must be submitted to the State Superintendent of Schools for his comments before they may be approved by the ATC.

The apprenticeship program developed and managed by the Joint Committee in Baltimore County is funded in part by the State Department of Education, which is headed by the Board. The funding and approval process for this program is begun by application of the sponsor (the Joint Committee) to the County, which in turn presents it to the Department, through the Division of Vocational-Technical Education. This Division includes the program as a line item on its budget submission to the Board, which makes the final determination as to what budget request will be submitted to the Governor for this program. If a program is approved for funding, then the funds are transmitted to the County, which pays instructors directly at an hourly rate. The Official indicates that the current hourly rate is $19.05, $10 from the State and the remainder from the Joint Committee. No funds are provided directly to his Committee. However, he indicates that in addition to his job with the Joint Committee, he is one of the instructors in this Baltimore County program.

The State Board of Education is established in §2-202 of the Education Article and is identified as the "Head" of the Department of Education. In this role the Board has broad and sweeping authority over all aspects of elementary and secondary education in the State. The Board, among other things:

1) determines the educational policies of the State;
2) may institute legal proceedings to enforce the Education Article and its own by-laws and rules;
3) exercises general control and supervision over the public schools and educational interests of the State;
4) establishes the basic policy guidelines for instructional programs; and 5) prepares and submits to the Governor an annual State public school budget.

The Board hears and resolves controversies arising under any provision of the Education Article, or under its own by-laws or regulations, as well as cases involving constitutional rights.1

The Ethics Law issues raised in this request involve 3-103(a) and 3-101. Section 3-103(a) prohibits outside employment with an entity under authority of or contracting with an official's agency, but provides in subsection (2)(iii) that this prohibition does not apply to:

...a member of a board or commission in regard to a financial interest or employment held at the time of appointment, provided it is publicly disclosed to the appointing authority, the Commission, and, in instances where confirmation is required, to the Senate prior to confirmation.

The Official is employed by an entity that operates a program funded in part by his agency, and is himself compensated as an instructor with agency funds (though it is not clear whether his service as an instructor in Baltimore County's plumbing apprenticeship program makes him a County employee). Funds for the program are disbursed by contract between the Department and the County. The apprenticeship program is actually certified by another department, which is, however, required to get comments from the Superintendent of Schools, a senior employee of the Department.

We believe that under these circumstances it can be concluded that the Official is employed by an entity under the authority of his agency. Even though the Department may not directly regulate the Committee as that term is usually understood, its broad funding and policy authority over the apprenticeship program support the conclusion that it has authority over the Committee. Moreover, a significant portion of the Official's compensation for his instructional duties comes from the Department as a result of Board and Departmental decisions. Thus, the §3-103(a) employment prohibition applies to the Official unless the exception in subsection (a)(2)(iii) is allowed.2

In our Opinion No. 82-35 we considered this exception and certain issues that arose in getting the disclosure procedures under it established. The Official's disclosure of his employment relationship with the Joint Committee and his teaching activities for Baltimore County occurred at the time that Commission staff and the Governor's Appointments Office were coordinating their efforts to work out the procedural problems of appointee exemption disclosure. His appointment was sent to the Senate and confirmed on March 30, 1982, prior to his being given the Commission's Appointee Exemption Form, and when he did receive the Form it was without specific instruction as to the timing or other details of its submission. He responded in what we consider to be a timely manner (within a few weeks of receiving the Form), but, as a technical matter, did not complete the Form prior to being sworn in.

Under these circumstances we believe that the exception should apply on the same basis that it did in Opinion No. 82-35. We believe that this is the type of situation where this exception was intended to apply, especially given the Official's immediate and good faith disclosure of his employment relationships. Though we generally think that this disclosure is to be made earlier in the appointment process, the situation here, as in Opinion No. 82-35, was a result of a technical oversight associated with a new process. Assuming that the Official's disclosure meets the requirements of the appointing authority and the Senate as set forth in our earlier Opinion, we conclude that §3-103(a)(2)(iii) applies to exempt him from the employment prohibitions of §3-103(a)(1) as to the employment existing at the time of appointment, as disclosed on the Appointee Exemption Form.

As the Official's service is not forbidden by §3-103(a), he should also be advised as to the disqualification requirements of §3-101 of the Law. This section forbids his nonministerial participation in any matter in which he has an interest or which involves as a party an entity with which he is employed.3 Since he is employed by the Joint Committee he should not participate in any matter specifically involving it, as long as he retains his employment relationship. The participation bar would apply to situations involving the continuation or abolition of the Baltimore County apprenticeship program, since this would directly affect his own compensation under the program as well as the activities and interests of his employer. This provision would not, however, bar his participation in apprenticeship program decisions in general, as these would not be viewed as specific matters involving the Joint Committee as a party, nor would it bar his voting on general budget questions that would only indirectly affect the Joint Committee or the apprenticeship program.4

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

Date: January 12, 1983

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1 It should be noted that the Education Article, at §2-202(b), establishes criteria for appointment of Board members. We do not believe that evaluation of these provisions is within the jurisdiction or expertise of the Ethics Commission, and wish to make it clear that our Opinion in no way impacts on resolution of issues arising under the Education Article.

2 The other exceptions in subsection (a)(2) would not appear to apply since the Official is not appointed based on a statutory requirement, and his duties would appear to be more than ministerial.

3 Note here that §3-101 applies to matters in which an individual has interest or which involve certain "business entities" as parties. Since the Baltimore County School Board is a governmental entity, not a business entity, these limitations would not apply to the Official's participation in matters involving the School Board.

4 For a more detailed discussion of the interpretation of §3-101, see our Opinion No. 80-17.