An opinion has been requested by the Chairman of the Real Estate Commission (the Commission) concerning whether members of the Commission or its staff may receive compensation for serving as guest lecturers in courses required for licensure as real estate salesman or broker.1
The Real Estate Commission is a unit within the Department of Licensing and Regulation (DLR) and is established and functions pursuant to Article 56, §213-224A, Annotated Code of Maryland. The Commission consists of eight members appointed by the Governor with the advice of the Secretary of DLR and the advice and consent of the Senate. Five Commissioners must be licensed brokers or salesman, while the remaining three members are prohibited from being "directly or indirectly engaged in the business of real estate." The Commission has general licensing and enforcement authority over all real estate brokers and salesmen doing business in Maryland. The Commission administers the licensing exams in these fields, which exams are generated by an independent testing service under contract to the Commission. Staff and Commission members may be involved in reviewing a pool of potential questions for use in the exams.
Minimum qualifying requirements that must be met by those wishing to sit for the exams are established by the Commission. They include requirements that applicants "successfully complete a course of instruction approved by the Commission." Applicants for sales licenses must complete forty-five hours of instruction either through the Realtor's Institute of Maryland (Course I) or other approved courses. Also, Article 56 further requires that all persons with real estate licenses participate in continuing education as a condition to the renewal of their license. These continuing education and licensing courses are offered by a wide variety of institutions in the State, including community colleges and other colleges, general business schools, and real estate industry schools (such as the Maryland Institute of Real Estate and the Realtor's Institute of Maryland). All of these courses must be approved, as to substance and form, by the Real Estate Commission.
This request involves participation by Commission members and staff in these courses as guest lecturers. The indication is that these courses of instruction may have a variety of formats. There may be an intensive course including the required number of hours on consecutive days in a single week; or a course may be presented a few hours at a time over a longer period as in a regular college semester program. In any case, the courses tend to be divided into the various subject matter areas required to be covered by the Commission. The question presented here is apparently not whether the individuals may contract with the course sponsors to teach a complete course. The individuals would be teaching as guest lecturers at a single unit of the course. The unit would cover the Real Estate Law, the procedures, regulations and authority of the Commission, and the real estate Code of Ethics.
This request raises issues under §§3-103(a) and 3-104 of the Public Ethics Law (Article 40A, §§3-103(a) and 3-104, Annotated Code of Maryland, the Ethics Law). Section 3-103(a) deals, in part, with outside employment by State employees, prohibiting employment with an entity that is under the individual's authority or that of his agency (subsection (a)(1)(i)), and also barring any other employment that would impair his impartiality and independence of judgment (subsection (a)(1)(i)). Section 3-104 of the Law further prohibits a public official or employee from using the prestige of his office for his own economic benefit or that of another. In our view provision of guest lectures as part of real estate courses would, if compensated, result in an employment relationship with the sponsoring institution. This institution could be a State or community college, or a private college, business or industry group. In any case, the sponsor would be subject to the authority of both the Commission members and Commission staff, as all courses must be approved by the Commission. Also, of course, all of the course sponsors have a stake in the testing and licensing process, to the extent that they want their students to do well on the exam, and Real Estate Commission members and staff may see a bank of potential test questions and are ultimately responsible for administering the test.
These sponsoring organizations would thus, as a general matter, be viewed as coming within one or both prohibitions of §3-103(a). In many situations such as this we would evaluate the particular circumstances of each potential employer. We would consider, for example, whether the organization is a State agency not included as an entity covered by subsection (a)(1)(i). (See our Opinions No. 82-51, No. 82-37, No. 82-33, No. 82-32, No. 82-15 and No. 81-7. 2 for a discussion of §3-103(a)(1)(i) coverage of secondary employment with State agencies.) We would also evaluate, for each person or position involved, whether the relationship between the outside employment (either with a State or private entity) and State activities are close enough to impair an individual's impartiality under subsection (a)(1)(ii) (see our Opinion No. 82-51), and consider also whether the exception provisions of §3-103(a) (as implemented in COMAR 19A.02.01) could be applied.
We do not believe that this detailed type of analysis is required in the circumstances of this request, however, as we believe the lecturing activity, with any course sponsor, is controlled by the provisions of §3-104 of the Ethics Law. We have on several occasions addressed the issue of whether a State employee or official may accept fees offered in connection with lectures and speeches, generally concluding that the acceptance of such fees is governed by a determination under §3-104 as to whether the activity (invitation to lecture) flowed directly and immediately from the employee's or official's State duties. For example, in Opinion No. 80-7 an official was prohibited from accepting a $500 fee for editing tapes related to a seminar that he attended as a State employee. In Opinion No. 80-8 acceptance of a fee was allowed, since the employee's then-current duties were not related to the subject of the seminar, and the employee had maintained his own, clearly private, affiliation with the sponsoring entity.
We have also addressed this issue in two more recent Opinions, one involving the Administrator of the Division of Condominium Registration in the Secretary of State's Office. (Opinion No. 83-4.) In this Opinion we advised the individual that he should not conduct seminars on the condominium registration program for private law firms that would be submitting material directly to him for review and approval. Our Opinion No. 83-9 involved the acceptance by the Chairman of the Board of Contract Appeals of a $100 honorarium for a lecture he gave in a seminar series on Maryland construction law. The seminar participants were individuals likely to be appearing before the Chairman's agency, and the lecture was directly related to the general policies and procedures of the State Procurement Law and the Board of Contract Appeals. In both of these Opinions we considered also that the activity was a public information activity reasonably viewed as a part of the individual's official duties.
In our opinion, application of these principles to this request would bar acceptance by either Commission members or staff of any fees for lectures given on the Real Estate Law or regulations, the industry Code of Ethics, and related matters. As noted indirectly in correspondence from the Commission, its members and staff are invited to lecture as a direct result of their official duties. The students participating in the courses are persons interested in obtaining real estate licenses from the Commission and thus directly concerned with its interpretations of the Real Estate Law and its requirements. The institutions offering the courses must also receive the approval of the Educational Committee of the Real Estate Commission in order to conduct the courses. We thus conclude that there are very direct and immediate ties between the official duties of both Commission members and its staff and the proposed lecturing activities, resulting in the application of §3-104 to bar acceptance of fees for giving the lectures. Also, private relationships in these types of situations could clearly give rise to the type of appearance of conflict intended to be addressed in the Ethics Law (§1-102(b)).
Additionally, the Real Estate Commission and staff might reasonably be expected to do this type of public information activity as part of their State duties. Thus, while we conclude that provision of lecturers on a compensated basis would be prohibited by §3-104, we believe that such activities could be allowed as part of the official duties and responsibilities of the individuals involved. Under these circumstances where agency funds are not available, participating individuals may accept reimbursement of expenses in connection with the activity, provided of course, that the reimbursement is for actual expenses and within the bounds established for such reimbursement by the State and the Department. (See our Opinions No. 83-33 and No. 82-28.)
*Mr. Finney was a member of the Ethics Commission at the time this request was considered and decided, but resigned prior to issuance of the formal Opinion.
Herbert J. Belgrad, Chairman
*Jervis S. Finney
Reverend John Wesley Holland
Barbara M. Steckel
Date: November 29, 1983
1 In its original presentation, this request addressed work by these individuals in teaching a full course, possibly at a local community college. We were subsequently informed that this had not been done and is not now contemplated. While we believe that this activity would raise serious ethics issues, we do not specifically address this issue here.
2 Except as otherwise expressly cited to the Maryland Register, Opinion citations are to Ethics Commission Opinions published in COMAR Title 19A.