83.10

OPINION NO. 83-10

An opinion has been requested from the Maryland State Police (MSP) concerning whether the MSP Corporal (the Corporal) who received investigative hypnosis training on State time may have a private practice in therapeutic hypnosis.

The Corporal is an MSP officer assigned to the Annapolis Barrack and working until recently in the agency's hypnosis unit. He was trained for this on State time but at his own expense, and also received some on-the-job training. The course that he took on State time was at the Investigative Hypnosis Institute, and the program and training were directed solely toward use of hypnosis in criminal investigations, in interviewing witnesses and victims to develop information to assist in investigations.

The Corporal is one of 3 or 4 other MSP personnel in the Hypnosis Unit, though the future of the program is uncertain as a result of court cases casting doubt on the admissibility of evidence procured from an individual under hypnosis. He indicates that he has only done one hypnosis interview in over a year, and thinks that the whole unit may have done no more than 2 or 3. The Corporal himself has recently completed a training program as a polygraph examiner, and is currently in the process of being phased into a new job in the agency's Polygraph Unit. It is not clear under these circumstances whether he will be doing any more hypnosis work, especially given the virtual suspension of the program and the uncertainty of its future.

The Corporal wishes to engage in limited outside activity doing therapeutic hypnosis. He says that he has been requested to work with a few people occasionally in his home, doing hypnosis sessions directed at helping people in various self-improvement areas, such as weight loss or giving up smoking. He indicates that this is a totally separate endeavor from the investigative techniques learned for and used in connection with his official MSP duties. The Corporal says that he has continued with additional follow-up training and other activities (including membership in various professional associations) on his own time and at his own expense.

The Corporal is supervised by an MSP Colonel who is Chief of the Agency's Field Operations Unit, which includes both the Hypnosis and Polygraph programs. The Colonel has expressed concern about this proposed activity, primarily because the original training (which consisted of a 2-3 day course) was on State time and in connection with State duties. He notes that the scope of the training was to be directed solely to investigative work. The Director of the Investigative Hypnosis Institute agrees that investigative and therapeutic hypnosis skills are very different. He believes, however, that this raises an industry ethics issue to be addressed as a policy or legislative matter, dealing with the need for regulation and licensing of practitioners in this field. He does not see how the activity itself would create inherent problems for a police officer in connection with his job duties. Counsel for the MSP and the Colonel have both suggested the possibility that the activity could create a problem if it were to involve individuals who subsequently became witnesses in a criminal trial, recognizing, however, that this possibility is remote.

As the Corporal's activity would be outside employment, it raises issues under the employment prohibitions in §3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law). Subsection (a)(1)(i) of this provision bars employment by an employee or official with any entity that is under his authority or that of his agency, or that has or is negotiating a contract with the agency. Subsection (a)(1)(ii) bars any other employment that would impair the individual's impartiality or independence of judgment. In applying these provisions, we have consistently held that a private practice or consulting endeavor, however informally organized, is an entity for purposes of §3-103(a) (see, for example, Opinions No. 82-46, No. 82-16, and No. 82-3).1 Further, individuals have also been viewed as having both an employment and interest relationship in these entities. (In addition to the above, see Opinions No. 81-15 and No. 82-8.) The Corporal's activities would thus be covered by subsection (a)(1)(i), if they are under MSP authority or have contractual dealings with it. The possibility of such contractual dealings appears to be remote, however, and given the current fact situation, there also appears to be no authority relationship between the Corporal's proposed private hypnosis activities and his official duties. We thus conclude that the proposed activity would not be barred by the absolute prohibitions of §3-103(a)(1)(i).

The Corporal's practice would therefore be barred only if it is viewed as inconsistent employment under subsection (a)(1)(ii). We have generally viewed this provision as a mechanism for dealing with situations that raise clear and serious conflict of interest issues, but where the particular authority or contractual affiliations of subsection (a)(1)(i) are not present. We have in the past applied a remoteness test, evaluating whether there was a relationship between the private and official activities that raised these types of issues. (See, for example, Opinion No. 82-55). Applying these principles to the Corporal's situation, we do not believe that the relationship between his official duties and proposed private activities warrants a conclusion that the private practice raises clear and substantial concerns about his ability to carry out his duties impartially and independently.

We note, of course, that his original training was on State time and in connection with anticipated official duties. Though this can be an important factor in applying various provisions of the Ethics Law, we have not always found it to be a determining one.2 We think that the key consideration in this situation must be the relationship of the actual proposed private activity to the individual's actual or anticipated official duties. We note, for example, the current status of the agency's Hypnosis Unit, and the Corporal's changed job duties, as well as the fact (apparently agreed to by everyone) that his private activity would deal with a hypnosis approach and technique that is completely separate from the one involved in his State police work.

In any case, whatever the industrial ethical considerations, or the Corporal's qualifications to carry out this activity, or the policy considerations as to regulation and licensing of hypnosis, the question to be considered under §3-103(a)(1)(ii) continues to be whether and to what extent the secondary employment would interfere with his responsibilities for the State. As we do not find any basis in the facts presented to us for concluding that the secondary employment would interfere with his MSP duties, we advise the Corporal that he may carry out his practice as proposed, without violation of §3-103(a)(1)(ii).3

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

Date: April 21, 1983

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1 Unless otherwise specifically noted all Opinion citations are to Commission Opinions published in COMAR, Title 19A.

2 See, for example, an earlier Opinion involving a Maryland State Police Officer who was permitted to affiliate with the International Association of Chiefs of Police giving a course that grew in part out of training provided by MSP (Opinion No. 81-36).

3 He should, of course, keep in mind that his private activities continue to be governed by the disqualification provisions of §3-101 of the Ethics Law and the prestige of office prohibition of §3-104.