84.02

OPINION NO. 84-2

An inquiry has been presented concerning whether a conflict of interest exists if an individual serving as an associate professor at the University of Maryland (the University) is also the County Executive of the County where the University's main campus is located.

The Requestor is the County Executive for Prince George's County; prior to his 1982 election to this position, he served on the County Council. He is also a faculty member in the Department of Government and Politics at the University of Maryland. He has been on the faculty since 1967 and has attained the rank of Associate Professor. Since his election as County Executive he has been treated as a full-time employee on leave for the period of time he commits to public service. Currently his sole commitment to his faculty job is to teach one undergraduate course. Because of his leave status he is not assigned any students to advise, and he plays no role in the administrative functions of the Department or the Division of Behavioral and Social Sciences, of which it is a part.

The University's College Park campus is a major facility within Prince George's County. Officials in the County's Office of Law indicate, however, that the relationships between the two are detailed in a very few formal agreements, all signed by the County Administrator. The primary continuing agreements deal with coordination of County and University law enforcement activities, a cooperative extension service agreement, a use agreement allowing the University use of a surplus elementary school, and an agreement concerning use by the County of the University's Maryland Fire and Rescue Institute. The Deputy County Attorney also indicates that the County has no regulatory authority over the University, its property or activities.

Apparently none of these agreements or relationships have given rise to any specific controversy, and both the Deputy County Attorney and the Executive Assistant to the University's College Park Chancellor state that the general relationship of the County and University is not controversial. University officials, including the Division Provost and the Requestor's Department Chairman, further indicate that neither the Division nor the Department is involved in activities dealing with County/University relationships. The Department Chairman states that there are currently no internships or student fellowships involving students and the County government, though these would not necessarily be unlikely. Such activity, however, would be generated by a student and reviewed by a faculty committee based solely on academic considerations.

This request raises issues under the outside employment provisions of §3-103(a)(1) of the Public Ethics Law (Article 40A, §3-103(a)(1), Annotated Code of Maryland, the Ethics Law).1. This section prohibits an official or employee from being employed by or having an interest in an entity that is regulated by or has contractual relationships with his State agency employer (subsection (a)(1)(i)). It further bars any other employment that would impair the individual's impartiality or independence of judgment (subsection (a)(1)(ii)). As to subsection (a)(1)(i), though the University appears to have no authority over the County, it plainly has contractual relationships, that, for example, define certain duties and responsibilities and transfer property. We have generally concluded that these kinds of intragovernmental or general agreements create contractual relationships as contemplated by §3-103(a)(1)(i). The Requestor's County employment would thus appear to come within the prohibition of this section 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 and are codified in 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 service as County Executive in light of the criteria and have also received the views of the Requestor's agency. The College Park Chancellor has indicated that in his view this situation does not raise concerns for the University. The University and the County are both public entities apparently having only a few non-controversial contractual relationships, and the Requestor's University teaching apparently in no way involves the University's relationship with Prince George's County. Moreover, his duties as County Executive are described as not involving the day-to-day types of decisions that would impact on the University contracts. All of the contracts are signed by the County Administrator. Under these circumstances, we do not believe that this employment would raise issues prohibiting his service as County Executive 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 purely teaching responsibilities, and the apparently limited relationships between the County and the University, we do not believe that Requestor's employment as County Executive 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 State duties. (See our Opinions No. 82-42 and No. 81-28 for discussion of application of this provision.) We therefore advise the Requestor that his service with the County is not, as presently described, a violation of §3-103(a)(1)(ii) of the Ethics Law.

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

Date: January 26, 1984

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1 Note that this request is being considered solely from the point of view of the Requestor as an employee of the State of Maryland. He has been advised that any issues arising from his University employment in relation to his duties as County Executive must be raised with the County Ethics Commission. This Opinion should not be read as reflecting any judgment by the State Ethics Commission as to application of the County ethics provisions to this situation.

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