83.23

OPINION NO. 83-23

The Ethics Commission has received an opinion request from an Administrator I in the Office of Planning, Department of Health and Mental Hygiene (DHMH), concerning whether he may serve as a Commissioner of the Maryland-National Capital Park and Planning Commission (Park and Planning Commission).

The Requestor works in the DHMH Office of Planning, which is the unit under the Assistant Secretary for Administration that has responsibility for internal Departmental planning activities. The Office works with DHMH facilities and with various administrations in the Department in developing the agency's capital budget proposal, its master facilities plan, and individual facilities plans. The Requestor's responsibilities relate solely to formulation of the capital budget request. He works with personnel from particular facilities putting together the materials to request funding for work to be done at the facility. This work usually involves improvements within an existing campus, such as renovation or repair work or addition of a new building to existing structures on property already held by the Department.

According to the Requestor, he is not involved in the policy decisions of whether or where to do construction at DHMH facilities; nor is he involved in implementation activities related to actual construction. His job is to put together the paperwork that supports funding for a particular project. This description of the Requestor's duties is confirmed by DHMH's ethics contact, the Director of the Manpower Resources Administration (the Director), who has also reviewed the matter with the Assistant Secretary for Administration. The Director describes the Requestor's role as limited strictly to dealing with capital improvements within the Department, and indicates that he has no role in policy development, or with agency contracts or regulatory programs. Requests are received from various facilities and processed by the Requestor after preliminary policy determinations are made. Also, the Director indicates that these types of projects relating to State facilities are generally exempt from local zoning and planning requirements.

The Requestor is a resident of Prince George's County and indicates that he has long been involved in recreational and other activities there. His request arises out of his interest in serving as a Commissioner on the Park and Planning Commission, a bi-county agency established pursuant to Article 66D, Annotated Code of Maryland. Park and Planning Commissioners are appointed, pursuant to an involved, statutorily defined process, to serve a four-year term; part-time commissioners are compensated at an annual salary rate of $5,600, with provision for $750 vouchered expenses. The Park and Planning Commission has general responsibilities within Prince George's and Montgomery Counties for development of parks and recreational facilities and for planning within the bi-county jurisdiction. For example, the Commission may acquire and develop property for "public recreation or the construction of public recreation centers, community buildings, or other public buildings necessary to house the public recreation program...." It may condemn land for the construction of levees and other flood control projects. It is responsible for developing a master plan for the region, and has approval authority of subdivision plats. Actual zoning powers, however, are retained in the local governing bodies of the two counties.

This employee's proposed service on the Park and Planning Commission would constitute employment under §3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law). It would be prohibited under this section if the Commission is an entity that is under the authority of or contracts with the Requestor's agency (subsection (a)(1)(i), or if it were to be viewed as impairing his impartiality or independence of judgment (subsection (a)(1)(ii)). We believe that the strict prohibition of subsection (a)(1)(i) could be applied here as a technical matter, despite the fact that the relationship of its planning activities to the DHMH is unclear.1 The Director indicates that the Department has a small grant to the Commission's Parks Division in Prince George's County, to operate a two-week camp for retarded children. The grant has been ongoing for several years. The Department also, of course, has significant authority, through the local health officer, to regulate activities of the Commission's park systems, such as swimming pools and other activities subject to health regulations. The Commission is also responsible in its planning activities to take account of the many DHMH regulations and policies regarding water and sewer treatment and other environmental matters.

Given these relationships between the Park and Planning Commission and DHMH, and assuming for discussion purposes that the Commission is not a State agency (see footnote 1), the Requestor's service on the Commission would appear to be barred by §3-103(a)(1)(i), unless it is excepted pursuant to the Law's provision permitting employment "by regulation of the Commission...where such employment does not create a conflict of interest or the appearance of conflict." Regulations implementing this exception provision were issued effective August 2, 1982 (COMAR 19A.02.01). They set forth several criteria identifying circumstances where the relationship between an employee's outside employment and his agency would be so remote that a conflict of interest or appearance of conflict would be unlikely. They allow exception, for example, where the employee's official duties involve no significant impact on his outside employer, and where his outside position is not directly funded by a contract with his State agency. (See our Opinion No. 82-40 for a more detailed discussion of the exception criteria.2)

The regulatory procedure requires review and determination regarding each factor in order to conclude that the absence of the relationships supports a finding that no conflict or appearance thereof exists. We have reviewed the Requestor's proposed service on the Park and Planning Commission in light of the criteria, and have also sought the views of the Requestor's agency. While we did not have a formal agency view, the Director has indicated that in their tentative review of this situation neither he nor the Assistant Secretary would view this activity as raising concerns for the Department. The Requestor's supervisor, the Director of the Office of Planning, has also indicated that she does not see a problem with his proposed Commission service, as long as he uses leave time for any Commission activities. Under these circumstances, we do not believe that this employment would raise issues prohibiting his service on the Commission, and we therefore conclude that this service may be excepted from the prohibitions of §3-103(a)(1)(i).

Also, given the limitation of the Requestor's duties to internal agency matters, and the apparently limited relationships between DHMH and the Park and Planning Commission, we do not believe that this proposed employment must be viewed as "inconsistent employment" under §3-103(a)(1)(ii) of the Ethics Law. The outside employment situation presented here does not, in our view, raise clear and serious concerns about the Requestor's ability to properly carry out his official duties. (See our Opinions No. 82-42 and 81-28 for discussion of application of this provision.) We therefore advise the Requestor that his service with the Park and Planning Commission would not be a violation of §3-103(a)(1)(ii) of the Ethics Law.3

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

Date: July 27, 1983

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1 A preliminary question in evaluating the strict language of §3-103(a)(1)(i) is whether the Park and Planning Commission should be viewed as a State agency within this context, since we have concluded that secondary employment with another State agency is not employment with an "entity" intended to be addressed in §3-103(a). The bi-county agencies have not been treated as State agencies for most purposes under the Ethics Law, since specific provisions regarding them are included in Title 6 of the Law. Neither Title 6 nor the definition of "executive agency" (§1-201(1)) expressly excludes the bi-county agencies from the term, however, and Article 66D, §2-110 specifically provides that the Commission is not a municipal corporation. We specifically do not determine here whether the Park and Planning Commission is a State agency, as we believe that this determination is not necessary to resolve the issues presented in this request.

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

3 The Requestor should take care if he is appointed, however, to avoid becoming involved as a Park and Planning Commissioner with matters involving his Department. Also, as is discussed in the text above, the Park and Planning Commission appointment process is thorough, and includes financial disclosure and ethics considerations. This Opinion should not be read as reflecting any judgment by the State Ethics Commission as to application of the ethics provisions of the Park and Planning Commission.