83.26

OPINION NO. 83-26

The Maryland State Police (MSP) have requested an opinion concerning whether State Police Troopers assigned to a County resident trooper program may engage in outside employment as security guards for county schools.

This request was presented by an Assistant Attorney General for the MSP on behalf of two Troopers assigned to the Westminster Barrack in Carroll County (the Troopers) who are both assigned to the County's resident trooper program. This program is established in Article 88B, §63, Annotated Code of Maryland, which provides that county governments may enter into agreements under which MSP takes over all or a portion of the functions of a local police force; municipal jurisdictions may also be involved. Pursuant to these agreements, MSP "within the county shall enforce the public local laws of the county or municipalities and perform related police services...." The local jurisdiction reimburses MSP for 75 per cent of the cost of the resident troopers within the particular jurisdiction.

The specific police services to be covered or not covered by the resident troopers are set out in the contracts of each particular jurisdiction. The MSP agreement with Carroll County does not expressly include or exclude security services for school athletic events. The County's Administrative Assistant indicates that these services have never been contemplated as included in the resident trooper program. Further, as a practical matter, the Troopers indicate that the resident troopers have not provided security services for these events. Troopers may do "stop-through" checks during events, or would respond to a call if there is a disturbance or other criminal activity. However, they do not undertake to remain for an entire event, or to be available in the numbers sometimes necessary to provide adequate security for crowds of the size attending athletic events.

Troopers assigned to be resident troopers continue to be MSP employees and are supervised by the Superintendent of Police. They carry out routine police work, conducting criminal and miscellaneous investigations, and responding to calls for police services where there is a disturbance, a robbery or other situation requiring law enforcement assistance. Of ninety-two troopers assigned to the Westminster Barrack, forty are resident troopers. The remaining troopers are described as road troopers, responsible for patrolling State highways and enforcing State traffic laws, including drunk driving laws and speed laws.

The Troopers involved in this request wish to engage in secondary employment providing security services for athletic events at two county high schools. The Athletic Director of one of the two high schools has indicated that the Athletic Department has certain funds budgeted by the Board of Education for security at athletic events. Additional funds from gate receipts may also be used for this purpose. Security personnel may be hired solely at the discretion of the Athletics Director; there are apparently no County guidelines or other controls regarding procurement of these services. The Director states that he has recently used a private agency for security guards, and prior to this the County Sheriff's Department provided this service. He indicates that the private services have not been bonded; nor do their personnel carry firearms or have arrest powers.

State police officers, however, do have these powers and carry firearms; and they do not need to be bonded. The Athletic Director views the presence of all of these benefits in State police officers as a substantial plus in favor of their use in this way, and sees this also as an important community relations benefit. He indicates that security personnel are hired for individual events based on need. After the event, they bill the school, which verifies the bill and forwards it to the School Board. The individual is paid by the School Board with a check drawn on a School Board account. The Athletic Director states that there has never been any suggestion that security services be provided by the resident troopers.

This request for approval of secondary employment is also subject to MSP regulations covering secondary employment by troopers. These regulations permit security work by troopers as a general matter, but have substantial limitations recognizing the fact that troopers are viewed as being "on duty" at all times. Thus, a trooper who sees a crime committed has a duty to take appropriate law enforcement action. This would be true, of course, whether outside employment involved security or other work, or even if a trooper just happened to be on the scene and there was no secondary employment involved. One of the Troopers indicates that troopers are expected to be "suitably armed" at all times, though they are no longer absolutely required to carry a firearm. He says that many troopers carry their own firearm, approved by the MSP, rather than their MSP weapon. He also indicates that he and other resident troopers drive "take-home" State cars; none of the officers anticipate using any MSP equipment, vehicles, or uniforms in their private security work. The Trooper also indicates that the proposal here would be for several troopers to be available for service to these two schools. They would not form an official agency, but would coordinate their schedule so that the schools would know who would be available for a particular event.

The Westminster Barrack Commander indicates that he does not see a problem with troopers engaging in this type of activity as a general matter. His concern with this particular situation is that the resident troopers would be paid by County funds, which are also a primary source of their regular pay under the resident trooper agreement. He states, however, that the resident trooper agreement (the Agreement) does not call for troopers to provide security services to schools. As indicated above, under normal circumstances troopers on duty would do a "stop-through" at an event. The Commander indicates that this would continue to be the case, even if the security personnel hired by the school were off-duty troopers. The Commander and the Troopers indicated that the police have generally worked cooperatively with the School Board regarding law enforcement activities within the schools.

This request raises outside employment issues under §3-103(a) of the Public Ethics Law, as well as possible issues under the prestige of office provisions of §3-104 (Article 40A, §3-103(a) and 3-104, Annotated Code of Maryland, the Ethics Law). Section 3-103(a)(1)(i) bars outside employment by an employee with an entity that is under his or his agency's authority or that has or is negotiating a contract with his agency. Section 3-103(a)(1)(ii) further bars any other employment that would impair the individual's impartiality and independence of judgment. Subsection (a)(1)(i) addresses employment with entities having certain relationships with one's State agency. The Troopers' employment would be with the County School Board, and their agency has a resident trooper agreement with the County. Thus, their security guard work could be treated as prohibited employment, if the County is viewed as an entity, if the employment is with the County as an entity, and if the Agreement is viewed as a contract within the scope of §3-103(a)(1)(i).1

Application of subsection (a)(1)(i) in this situation depends upon resolution of certain technical questions, such as: 1) whether the Trooper's employment is with an entity intended to be covered by this subsection; 2) whether the employing entity has a relationship with their agency; and 3) whether that relationship is a contractual one as contemplated by subsection (a)(1)(i). While issues could be raised under items 1) and 3), we do not believe that they need be resolved, as in our view, the Troopers' employment with the school system is not employment with the same entity with which MSP contracts.

The resident trooper agreement is with the County. The Troopers would be hired by individual school athletic directors and paid directly by the School Board. The County Administrative Assistant describes the School Board as an autonomous body not functioning as a unit in the County government. He states that the County's only duty is to provide funds and review the budget on a budget category (rather than a line-item) basis. The County does not otherwise get involved in substantive decisions on management and operation of the school system, nor does the School Board participate in negotiation or implementation of the resident trooper agreement. Under these circumstances, we conclude that the Trooper's employment with the school system is not employment with an entity that contracts with their agency and is therefore not proscribed by subsection (a)(1)(i).

Where employment is found not to be within the strict prohibition of subsection (a)(1)(i), the question is whether the inconsistent employment provision of subsection (a)(1)(ii) would apply to bar the activity. We have generally looked for significant relationships between official and private duties in determining whether to bar activity under this subsection. Where the activity involves another State agency we have looked for even closer personal and organizational ties before barring employment under this subsection (Opinion No. 83-16), and we have both prohibited (Opinion No. 83-222) and allowed (Opinion No. 83-24) relationships with local entities.

Though we have as a general matter declined to totally exclude employment with a local government entity from the inconsistent employment provision, we believe that the fact that the secondary employment proposed here would be with another public entity is significant. These Troopers would be providing services to the School Board in furtherance of another public function, and would have an employment relationship with an entity that does not have private economic or other interests that could interfere with the Troopers' discharge of their official duties. There also appears to be no evidence of any conflicts having arisen between the School Board and MSP under the resident trooper program, or any expectation that these services would be officially provided by the Troopers, or that the School Board has been involved in negotiation or implementation of the resident trooper agreement.

Moreover, issues raised by the fact that the Troopers would be engaged in law enforcement activities similar to their MSP/County duties--such as their "always on duty" status, their ability to carry firearms, and their arrest powers--have been carefully and fully addressed by MSP regulations. The agency through its counsel has indicated its general approval of the proposed activity. Given all these circumstances, we do not believe that the secondary employment proposed by the Troopers would raise the types of impairment and appearance issues intended to be addressed by §3-103(a)(1)(ii). We therefore conclude that this employment would not be in violation of §3-103(a) of the Law.

Nor do we believe that the service by the Troopers as security guards at school events would be barred under the provisions of §3-104 of the Ethics Law. This section prohibits employees and public officials from using the prestige of their office for their own economic benefit or that of another. The Troopers indicate that they would not be doing their security work in MSP uniforms or using police vehicles, nor would they anticipate using MSP-issued firearms. They state that this potential employment came about as a result of general friendships with the school Athletic Director, and was not solicited by the officers. They further indicate that they have not made any direct references to or sales presentation based on the Troopers' status as police officers. We recognize that the Troopers' status, their ability to carry firearms, and their arrest powers result in certain benefits to the school. Section 3-104, however, deals with intentional use of prestige. We do not believe that these benefits or the Troopers' official status bring this situation within the abuse of prestige provision as set forth in §3-104 (see our Opinions No. 82-51, No. 82-37, and No. 81-33 for other interpretations of this section), and therefore advise the Troopers that their outside employment, as described to us, would not violate this section of the Law.

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

Date: August 18, 1983

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1 Though the MSP has broad law enforcement authority, the status of the County and the School Board as government entities would seem to limit the likelihood that an authority relationship exists between the MSP and the outside employer. The authority aspect of §3-103(a)(1)(i) is therefore not discussed here.

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