83.16

OPINION NO. 83-16

An opinion has been requested concerning whether the Commander of the Maryland State Police (MSP) Automotive Safety Enforcement Division (ASED) may have secondary employment with the State Board for Higher Education (SBHE) inspecting off-road vehicles of a vocational driver training program.

This request is presented by a MSP Captain (the Captain) whose duties are to "command, direct and control the Automotive Safety Enforcement Division of the Maryland State Police. " This Division is responsible for administering and enforcing that portion of the State vehicle laws that relates to inspection of used vehicles and warnings for defective equipment. (Transportation Article, Title 23, Annotated Code of Maryland.) It is also responsible for enforcement of the State's noise abatement program. Under the inspection program, ASED coordinates with the Motor Vehicle Administration (MVA) to develop safety standards for motor vehicle equipment. The Division also develops licensing and operational standards for inspection stations; it receives and investigates applications for inspection stations and issues inspection certificates to approved stations. The ASED also regularly monitors the inspection program and can take enforcement action against stations that do not comply with program requirements. The Division staff do not actually conduct inspections.

All police officers, State and local, have enforcement authority in the equipment repair order program, however. As all vehicles are required to meet safety equipment standards, a police officer may stop a vehicle and give an on-the-road warning and issue an order that certain repairs be made. The Captain's ASED Division participates in this program in several ways in addition to establishing the safety criteria. He and his staff provide training programs to police officers regarding the kinds of things to look for on vehicles and how to spot safety equipment deficiencies. Also, all issued repair orders come through ASED, which is responsible for the monitoring and enforcement of the orders.

The State's vehicle noise abatement program is also a part of ASED's responsibilities. Title 12 of the Transportation Article, Annotated Code of Maryland, provides for the establishment of maximum sound level limits for vehicles operated on the highways in the State, and prohibits any person from driving a vehicle (or combination of vehicles) on a highway within the State that does not comply with the established levels. The Title also provides that regulations for the administration and enforcement of this program are to be adopted jointly by the MVA and MSP. Thus, ASED participates in the drafting of these regulations, which are enforced by State and local police officers under procedures similar to those followed for the vehicle safety equipment program. This program applies only to vehicles operated on the road.

The Captain has requested approval of secondary employment with the State Board for Higher Education involving inspections of off-road vehicles owned by the National Training System (NTS). This company is a private entity that provides driver training and diesel mechanic training for operators of trucks. It provides both preliminary off-road behind-the-wheel training as well as training in over-the-road vehicles and diesel engine and heavy vehicle component mechanics, and maintains separate fleets of vehicles for these two purposes. The NTS had for some time been licensed by the MVA as a driver training school; its over-the-road vehicles were required to meet the inspection criteria jointly established and enforced by MVA and ASED, and its off-road vehicles were not regulated. The Company, however, is certified and approved as a vocational program for purposes of eligibility for federal vocational training funds. It petitioned the SBHE for certification as a State-approved vocational school, arguing that it was unable to effectively compete with its counterparts in other States who could advertise themselves as certified educational entities.

The end result of this petition was an administrative determination that NTS does teach a saleable vocational skill. It was therefore removed from MVA's driver education program and is now subject to SBHE's institutional evaluation program. The NTS is not now required by statute to be licensed by SBHE or any other agency of State government. It receives no funds from the State, and pays no fees to SBHE for the approval/certification. The SBHE evaluation of NTS is based on criteria relating to its curriculum and course of instruction, and also on its compliance with certain equipment requirements. All of the firm's over-the-road vehicles continue to be subject to the MVA/ASED used vehicle inspection program. Its off-road practice vehicles are subject to less restrictive standards established by SBHE.

These off-road standards were developed by SBHE with consulting assistance by the Captain, who has also assisted SBHE in evaluating NTS's diesel mechanics program. He indicates in his request that he has expertise as an automotive machinist developed prior to his MSP service. The Captain's original contact with SBHE staff came about through his participation as an MSP official in meetings with SBHE and MVA regarding transfer of the program. The SBHE's Executive Director indicates that the agency considered other individuals (two from the University of Maryland and one from Pennsylvania). The agency apparently does not usually request these types of services on a gratis basis from other agencies and did not formally request this one from MSP. It asked the Captain to review the criteria for NTS's off-road vehicles based on his significant practical experience as an automotive machinist. The Captain indicates that he provided guidance to the SBHE on the off-road criteria totally on his own time. He has been paid an honorarium, which he cashed, but is prepared to return if directed to do so by the Commission.

The Captain has also been requested by SBHE to provide continuing (twice yearly) services in inspecting NTS's off-road vehicles to ensure that they meet SBHE's criteria. The SBHE has advised that for its own policy reasons it prefers to employ a person in a private capacity, rather than to rely on another government agency. The Captain has requested approval of this as secondary employment through MSP's internal approval process, and the agency appears to have raised no objections to the activity. The work involves inspection of 6-8 vehicles, approximately 1-2 days work, twice a year. The SBHE's Executive Director indicates that the Captain would be hired as a contractor to SBHE. He would have minimum relationships or dealings with NTS. All arrangements for the inspections would be made by SBHE and reports provided to them. Any follow up action would also be taken by SBHE, and the Captain's payment and financial arrangements would be solely with SBHE.

This request raises issues under the outside employment and prestige of office provisions of the Public Ethics Law (Article 40A, Annotated Code of Maryland, the Ethics Law). Section 3-103(a) of the Law bars outside employment by employees with entities that are under authority of or have contractual relationships with their agency (§ 3-103(a)(1)(i)), as well as any other employment that would impair their impartiality or independence of judgment (§ 3-103(a)(1)(ii)). Though the Captain's relationship with SBHE would probably be viewed as an employment relationship, there appears to be no basis for applying § 3-103(a)(1)(i). In addition to being another State agency, SBHE does not have any contracts with MSP or appear to be under its authority. The strict criteria of subsection (a)(1)(i) thus do not apply, however the Captain's relationship with SBHE is characterized.

Nor do we believe that this activity would be "inconsistent" under subsection (a)(1)(ii). We have generally read this provision as a complement to the stricter provisions of subsection (a)(1)(i), intended to apply where the regulatory and contractual relationships do not exist, but where there are clear relationships between official and private duties that would impair an individual's impartiality and independence of judgment. We have concluded that this provision can be applied even where both employers are State agencies (see Opinion No. 82-51),1 but have generally looked for some fundamental "personal and organizational conflict" before applying this prohibition to secondary employment with another State agency. (See also Opinion No. 82-37.) We do not believe in this situation that NTS's continued responsibility for inspection of its over-the-road vehicles under the ASED program is sufficiently related to the Captain's official duties to raise an inconsistent employment issue under this section, and therefore conclude that his services would not be in violation of § 3-103(a).

Another question raised is whether acceptance of payment for either the proposed regular inspection work or the past consulting work (on the inspection criteria and diesel mechanics program) would be a violation of § 3-104 of the Ethics Law. This section prohibits a public official or employee from intentionally using the prestige of his office for his own economic benefit or that of another. We have generally said that acceptance of fees for private services that flow directly and immediately from one's State duties would be prohibited as an improper use of prestige under this provision. Though the Captain was briefly involved in the program transition, it does not appear from the facts presented to the Commission that this work is something that could reasonably be expected to have been done in his State job. Moreover, SBHE indicates that it sought out the Captain for this work. We thus do not believe that this situation presents the type of intentional abuse intended to be addressed by § 3-104, and therefore advise the Captain that he may engage in the inspection work and accept the honoraria for advising on the criteria, without violating § 3-103(a) or 3-104 of the Ethics Law.2

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

Date: June 27, 1983

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1 Unless otherwise specifically cited to the Maryland Register, all Opinion citations are to Ethics Commission Opinions published in COMAR, Title 19A.

2 The Captain should be aware, of course, that though he may be permitted to affiliate with SBHE under § 3-103(a) and 3-104, he continues to be subject to the disqualification provisions of § 3-101. He would therefore not be able to participate on behalf of MSP in any issues relating to the SBHE/NTS inspection program.