A question has been presented as to whether the Director of Education (the Director) at the Maryland Correctional Training Center (the Training Center) may be a part-time teacher at a Junior College that provides courses of instruction at the Training Center.

This request arises in connection with the disclosure by the Director of his part-time employment with the Hagerstown Junior College, on the Ethics Commission's Financial Interest Exception Disclosure Form. The Director is an employee of the State Department of Education (DOE) in its Division of Vocational-Technical Education. He is the Director of Education at the Training Center, a facility of the Department of Public Safety and Correctional Services (DPSC). The Training Center is a correctional institution housing medium, minimum and pre-release inmates. Assignment of an inmate to the Training Center is determined by classification personnel in the Division of Correction. It was originally designed to house youthful first offenders with an emphasis on academic and vocational training. It is currently overcrowded, housing approximately 2,400 inmates, generally adult second offenders, with an average age of 22 years.

The education program at the Training Center is funded and implemented by the DOE pursuant to Title 22 of the Education Article, Annotated Code of Maryland. The program includes academic and vocational-technical courses up through the secondary level. The Director indicates that it begins at the first grade and goes through the high school equivalency degree (G.E.D.), with most students at the intermediate (grades 5 and 6) level. He states that he manages the total program, supervising thirty-four full time employees, and using thirteen to eighteen contractors. Fifteen of his instructors are involved in the academic part of the program, with thirteen assigned to vocational-technical courses.

The Hagerstown Junior College (HJC or the College) runs a two-year Associate of Arts degree program within the Training Center. As a post-secondary educational program, the HJC program is not within DOE's primary mission, though the Director's overall educational duties at the facility necessarily include interaction with the College. For example, his official position description includes several duties that he and his agency describe as primarily ministerial and administrative:

1) he screens students for the program, providing comments on their ability and background;

2) he orients instructors as to institutional rules and procedures;

3) he processes payment vouchers, as inmates are not permitted to handle their own money;

4) his duties include seeking outside funding (though this has been unsuccessful and is therefore no longer done); and

5) he evaluates students' progress and behavior in the program.

The college program, according to DOE officials, is not funded or subsidized by either DPSC or DOE, though it is certified as to its vocational-technical component by the DOE. The program is also certified by Region III of the U.S. Department of Education, and its students are therefore eligible for federal educational grant funds. Many of the students, because they are incarcerated and have little or no income, qualify for federal funds, and pay their own tuition, either with these funds, veteran's benefits or other private sources. The College has an "off-campus coordinator" who spends two days a week at the facility, handling registration, books, billings, and other similar administrative matters.

The Director indicates that he is not involved in the College's substantive administration of the program and has no input into policy decisions about program content (other than his own courses) or teacher selection. He does, as indicated above, have occasion to deal with HJC in connection with practical matters regarding facility use. The College's agreement with regard to its use of the facility for this program, however, is with the Superintendent of the facility or with the host agency, DPSC. Though the College thus does not contract with DOE and is not subject to direct DOE authority with regard to the Training Center program, it is still subject to the agency's authority as a general matter, to the extent that its vocational-technical programs are certified by the Department. Also, DOE is the State agency responsible for funneling federal vocational training funds to community colleges. This funding relationship does not apparently represent a significant part of the activities of either HJC or DOE. Most community college funding (even for courses that could be viewed as technical and vocational training) is from the State or county, and most DOE funds are directed to local school systems at the secondary level and below.

This Opinion involves the Director's disclosure on our Financial Interest Exception Disclosure Form of part-time employment as a teacher at HJC. He indicates that he teaches a course for the College as part of its program at the Training Center, and has occasionally also taught on the main campus. He has taught courses in economics and also introductory correctional courses. He generally teaches one course a semester, on his own time, usually in the late afternoon. (His regular work day is 7:30 A.M. to 3:15 P.M.) He is paid directly by the College. This employment was reviewed and approved in the DOE system established for this purpose. The Deputy State Superintendent reviews all requests from DOE employees for approval of secondary employment, under a policy developed by the agency several years ago. He states that he does not believe this employment raises concerns for the Department. He states that any DOE grants to HJC, or approvals of its program, would be done in a completely different branch of the Vocational-Technical Division and that the Director's duties are not at all related to this type of project. He also notes that, given the status of the College at the Training Center, the Director is very limited in his ability to assist or otherwise favor HJC. Other DOE personnel, as well as the Training Center Warden, agree with this assessment.

Though it was erroneously disclosed on an interest exception form, this activity raises issues under the employment provisions of §3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law), in particular under the inconsistent employment bar of subsection (a)(1)(ii). Though we have not treated secondary State employment as subject to the strict prohibition against employment with an entity contracting with or under the authority of one's agency,1 we have held that the subsection (a)(1)(ii) bar against any other employment that would impair an individual's impartiality or independence of judgment can be applied to employment with another State agency. (See Opinions No. 82-37 and 82-51.)

In applying this principle, we have said that employment with another State agency could be within the §3-103(a)(1)(ii) prohibition "where there are clear personal and organization conflicts intended to be addressed by the Ethics Law that cannot be controlled by the personnel and administrative process." Also, in generally applying this section, we have looked for relationships between the private activities and official duties that would give rise to clear and serious concerns about the individual's ability to maintain his impartiality and independence of judgment in his State duties. The Director works in the same facility in both of his employment affiliations, and does have some relationships with HJC as the Training Center's Director of Education. However, his contacts with HJC seem to be based on practicality and general practice rather than any official authority over HJC's activities at the Training Center. Also, many of his actions regarding the College could be viewed primarily as ministerial and administrative.

We also take particular note of the fact that this situation involves a cooperative effort between several State agencies and that the Director's own agency has an established procedure for reviewing outside employment situations. In considering this employment the agency has taken account of the facts that the HJC program at the Training Center has no DOE funding; that there is a separation of time between the two activities, and little likelihood of an overlap; that there are no other institutions competing with HJC to be at the facility; and that the Director's ability to participate at a time other than the regular hours available for HJC classes results in practical benefits and extension of services to the total program. Under all of these circumstances, we conclude that the Director's service as an instructor in HJC's program at the Center would not constitute a violation of the inconsistent employment provisions of §3-103(a)(1)(ii). We assume, however, that the DOE will continue to monitor this activity. We also advise the Director that he should be aware that §3-(a) of the Ethics Law prohibits his non-ministerial participation in any matter in which he has an interest.2

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

Date: July 27, 1983


1 The HJC is a community college viewed by this Commission as a State agency (see Opinion No. 80-9), and therefore not an entity under the strict employment prohibition in subsection (a)(1)(i) (see Opinion No. 81-7). Except as otherwise specifically cited to the Maryland Register, Opinion citations are to Ethics Commission Opinions published in COMAR Title 19A.

2 Application of §3-101 is limited to the general interest prohibition of the section, rather than §3-101(a)(1) through (a)(6). These latter provisions deal with affiliations with business entities, and HJC is a governmental entity, not a business entity.