83.37

OPINION NO. 83-37

An advisory opinion has been requested as to whether an accountant (the Employee) in the Department of Health and Mental Hygiene (DHMH or the Department) may have outside employment with a catering firm regulated by the Department.

The Employee works in the General Accounting section of the Budget Management unit of DHMH. He is an Accountant IV whose duties involve providing general accounting support in local health programs, letters of credit and child day care programs. The local health programs are generally funded through a grant program that is a line item in the Department's Statewide budget. Funds are allocated on a case formula system and are subject to general rules regarding allowable costs and general accounting principles. The Employee assists local units in these areas and in practical aspects of grant management such as billing schedules, receipts and other matters. He also receives raw expenditure data from the counties and enters it into the agency computer for development of various reports and data compilations. He does not have any input in the substantive work or decisions of the local health departments.

In addition to performing similar accounting functions for local health department special grants, the Employee is also responsible for supervision and training of employees in his unit in use of microcomputer techniques for development of reports and performance of other general accounting functions for the Department. He is also the person in the agency responsible for developing letters of credit to draw down funds for expenditures in the Department's federally-funded grant programs.

The Employee works as a maitre d' for a private catering service. As a result of recent Ethics Commission distribution of Financial Interest Exception Disclosure forms, the question was raised as to whether this employment could be continued consistent with §3-103(a) of the Ethics Law. The catering service is one that operates a commissary where food is prepared and transported to a party location where it is served. The Employee describes his duties as maitre d' as being responsible for managing different types of parties. He states his role is logistical, involving, for example, setting up the party situation and seeing that food is served and that other things are done according to the schedule contracted for by the client. He indicates that there is a cook involved in each occasion who is responsible for seeing that the food is properly served.

Catering establishments are subject to significant regulation by the Department pursuant to the Health-Environmental Article, Annotated Code of Maryland. In COMAR 10.15.03 the Department has established detailed regulations significantly controlling food service facilities. This term is defined to include both "catering kitchens" and "commissaries." The regulations set forth criteria regarding food supplies, food service personnel, food equipment and utensils, sanitary facilities and control, and other facilities and operations. Regulation 10.15.03.09 establishes enforcement provisions requiring permits for all facilities and setting forth inspection and penalty provisions. Personnel in the Department's Headquarters Division of Food Control indicate that these provisions apply to catering operations both at the commissary and at the site where the food is served. They recognize, however, that inspection and enforcement activities, which are carried out by local health departments, tend as a practical matter to be limited to commissary facilities.

This situation involves application of the Commission's outside employment exception regulations issued pursuant to §3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland). This section of the Law prohibits an employee from being employed by an entity that is under the authority of or has contractual dealings with his agency (subsection (a)(1)(i)). As the Employee's outside employer is regulated by his Department,1) this employment would therefore be prohibited unless it comes within the exception criteria established by us pursuant to the proviso in §3-103(a) that the prohibition applies, "except as permitted 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 are set forth in COMAR 19A.02.01. They include 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. 82-402 for a more detailed discussion of the exception criteria.) 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 appearance thereof exists.

We have considered the application of the exception criteria to the Employee's outside employment. As he works in an administrative support division of DHMH that is not substantively involved in the food services programs, we do not believe that any issues are raised under the criteria. The only possible questions would be raised under items D (where the outside employer is subject to the authority of the employee's agency unit) and F (where the employee's private job involves non-ministerial duties relating to the agency's regulatory authority over the employer). We do not believe that the Employee's relationship to the local health agency that would enforce the food service regulations puts him within the "unit" of DHMH having authority over the catering service. Nor do we believe that his mere presence at and involvement with a catered function where health regulations must be met constitutes having "non-ministerial" duties as contemplated by item F of the exception criteria.

In view of the fact that the Employee's DHMH duties and his outside employment activities appear to be sufficiently remote from agency regulatory authority, we conclude that there would be no conflict of interest or appearance of conflict and that this employment may therefore be excepted from the prohibitions of §3-103(a)(1)(i).

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

Date: October 25, 1983

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1 Note that the catering company does not appear on the Ethics Commission list of entities doing business with the State during 1982.

2 Except where expressly cited to the Maryland Register, citations are to be Commission opinions published in COMAR Title 19A.