83.36

OPINION NO. 83-36

An advisory opinion request has been received concerning whether the Public Ethics Law (Article 40A, Annotated Code of Maryland, the Ethics Law) prohibits an attorney from serving as a member of the Board of Trustees for a community college where some of the attorney's clients may on occasion submit bids on proposed college contracts.

Section 16-201 of the Education Article, Annotated Code of Maryland, requires that a board of community college trustees be established in each county that has a community college. The boards are appointed by the Governor and are fully authorized (under Education Article, §16-203) to exercise general control over the community college. Included in the Board's authority is the ability to hire and fix the salary and tenure of college personnel; to acquire and manage college property; to apply for and accept grants and gifts; and to sue and be sued. The local board also establishes and implements all educational programs and procedures within the college, subject to minimum State standards. The Requestor is an attorney who was appointed to the Board for the community college in his county in 1976 and reappointed in 1981; his present term expires on June 30, 1986.

At the time of the appointments in 1976 and 1981, the fact that the Requestor was an attorney practicing law in the county was generally known. The Requestor has indicated, however, that he has never represented clients before the Board of Trustees. He states that on a few occasions when the College's administrative staff has presented materials on the selection of bidders for a project, he has recognized the names of businesses he has represented in legal matters. In such situations, he has not participated in the discussion of the staff's recommendations and abstains from voting. He has also had the record reflect that he did not participate and abstained from voting. According to the Requestor these situations have come up four or five times in his service of the Board. To his knowledge, there has never been a contractual dispute between a business he represents and the College. The Requestor indicates that he does not have retainer agreements with these clients, though he has done all their legal work for the past several years. The Requestor's law practice is incorporated as a professional association and he employs two associate attorneys; the associate attorneys have apparently not been involved in any matters involving the College.

This request presents issues involving the application of the disqualification provisions of §3-101 and the outside employment provisions of §3-103(a) of the Ethics Law. Section 3-101 requires an official or employee to disqualify himself from participation in a matter if he has an interest therein or if a business entity in which he has either a direct financial interest, employment interest or contractual relationship is involved as a party. Section 3-103(a) prohibits an official or employee from being employed by or having an interest in any entity which has or is negotiating a contract with that government agency (subsection (a)(1)(i)) or from holding outside employment which may impair his independence of judgment and impartiality (subsection (a)(1)(ii)).

A preliminary question is whether §3-103(a) would apply to absolutely bar the Requestor's service on the Board. We have consistently held that community colleges are executive agencies in State government,1 and that their employees and members of their boards are subject to the conflict of interest and other provisions of the Ethics Law. Addressing the relationships prohibited by §3-103(a), we have also previously concluded that private affiliations with a law practice organized as a professional association resulted in both employment and interest relationships subject to §3-103(a)(1)(i) of the Law. (Opinions No. 80-3 and No. 83-29). These prior Opinions have dealt specifically with situations where a private practice entity was involved in contractual relationships with an individual's agency. Opinion No. 80-3, for example, involved a member of the Maryland Industrial Development Financing Authority (MIDFA) who was an attorney affiliated with a private law practice organized as a professional association. We concluded that negotiations of financing arrangements by members of his firm on behalf of MIDFA applicants constituted negotiation of a contract, and that the individual's private practice therefore involved employment and interest relationships that were forbidden by §3-103(a).

Also, in our Opinion No. 80-6, we considered the relationship of a physician to a professional medical association that proposed to enter into a contract to provide medical services for the facility of which the physician was superintendent. We found that this relationship with an entity over which the physician would have such significant official responsibility was the very type of situation intended to be addressed by §3-103(a). More recently, in Opinion No. 83-29, we gave general advice and guidance to members and potential members of local boards of community colleges who were professionals and privately affiliated with a partnership or professional association. In that Opinion we advised that a member of a local community college board who is an attorney or other professional may not be affiliated as a partner, as a member of a professional association, or as an employee of a private practice that contracts to provide services to his board.

The present request presents a different question, that is, whether the Requestor's relationship to his law firm and particular clients appearing before his Board creates an employment or financial interest subject to §3-103(a) of the Ethics Law. Based on the facts as presented in this request, we believe that the Requestor's affiliations to his private practice and its clients do not present the concerns raised in our prior Opinions, as we view his representation of clients as that of a vendor of services, rather than one creating an employment or financial interest relationship in the client entity as contemplated by subsection (a)(1)(i). Additionally, while there may be some circumstances where the nature of a law practice relationship would be a violation of the inconsistent employment provision of §3-103(a)(1)(ii), we do not find such circumstances here.

As noted above, the Requestor has disqualified himself from participation in specific Board matters involving any entity or person who was his client, and has never assisted or represented any client before the Board. We commend the Requestor for his recognition of this responsibility as required by §3-101; his non-participation in those matters serves to avoid a conflict or the appearance of conflict. We therefore advise him that under the circumstances described to us, there would appear to be no prohibited §3-103(a) employment or financial interest barring his service on the Board. He should continue to avoid any conflict of interest or appearance of conflict by disqualifying himself consistent with the requirements of §3-101 of the Law.2

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

Date: October 25, 1983

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1 See, for example, our Opinions No. 81-10, No. 81-7, No. 80-21 and No. 80-9. Unless otherwise specifically cited to the Maryland Register, citations are to Commission Opinions published in COMAR Title 19A.

2 New or prospective board appointees should be aware of the appointee exemption set forth in §3-103(a)(2)(iii) of the Law. This exemption may be applied, however, only as to conflicting interests or employment held at the time of appointment, and fully disclosed in connection with the appointment to the appointing authority, the Ethics Commission, and (if required) to the Senate. (See our Opinions No. 82-35, No. 81-39, and No. 81-38.)