84.04

OPINION NO. 84-4

An opinion has been requested concerning whether a member of a community college Board of Trustees (the Board) may teach as a part-time faculty member at the college.

This request was presented by the Chairman of the State Board for Community Colleges on behalf of a local community college (the College) and a member of its Board of Trustees (the Board Member) who proposes to teach as a part-time faculty member one or two courses starting with the 1984 Fall semester of the College. Community college boards of trustees are established pursuant to State Law in each county that has a community college. (See Education Article, § 16-201, Annotated Code of Maryland.) The boards exercise general control of the community college in the county and may adopt rules and regulations. In addition to general management authority, community college boards appoint the college's president and control the institution's real and personal property. Also, consistent with standards established by the State Board for Community Colleges, local boards establish entrance requirements and develop and administer the institution's educational programs.

Each board is composed of seven members appointed for six-year terms by the Governor with the advice and consent of the Senate. The Board Member is presently serving his second full six-year term, which will expire in 1988. He is retiring in June 1984 after forty years in his private profession, and proposes to teach one or two courses related to his occupation. The Board Member has several advanced degrees as well as previous teaching experience and extensive community service. He is viewed by the College President as eminently qualified to serve as a part-time faculty member upon his retirement.

This request raises issues under the outside employment prohibitions of §3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland). This section, among other things, bars an official or employee from being employed by an entity that has contractual dealings with his agency (subsection (a)(1)(i)), or accepting any other employment which would impair his impartiality or independence of judgment (subsection (a)(1)(ii)). We have previously advised that community colleges are executive agencies in State government as defined in §1-201(1) of the Law,1 and that members of their boards of trustees are therefore officials of the State for purpose of §3-103(a). (See Opinions No. 83-39, No. 83-36, and No. 83-29.)

In evaluating the circumstances of this matter, we view the Board Member's service on the Board as his primary State office and his proposed faculty position with the College as secondary employment subject to §3-103(a). In situations similar to this, we have in earlier opinions generally concluded that secondary employment with a State agency does not constitute employment with an "entity" as contemplated by the restrictive provisions of §3-103(a)(1)(i).2 Consistent with this approach, we believe that the proposed faculty employment by the Board Member is with a State agency and would not constitute employment that is subject to the §3-103(a)(1)(i) prohibition.

We have, however, applied the impairment provision in subsection (a)(1)(ii) of the Law to bar secondary employment with a State agency "where there are clear personal and organizational conflicts intended to be addressed by the Ethics Law that cannot be controlled by the personnel and administrative process".3 More particularly, in Opinion No. 82-51, we concluded that the inconsistent employment provisions barred a member of a local social services board from employment with the local social services department supervised by the board. In this situation the social services board had significant and substantial advisory responsibilities as to the management of the local department, and was responsible for appointment of the local Director. The board member's duties included supervision of his own work or of others responsible for evaluating his work as a department employee. We therefore concluded that the board member's proposed simultaneous board membership and local department employment would generate the type of concerns intended to be addressed by §3-103(a)(1)(ii) of the Ethics Law.

We believe that similar concerns are raised by this request. The Board of Trustees of the College has significant and substantial responsibilities for the management of the College. By statute, it fixes the salaries and tenure of the President, faculty and other employees. It provides policy guidance to the staff, and may determine course offerings, scheduling, and other requirements consistent with State standards. Many of the general matters before the Board, such as budget, capital improvement, course offerings, and scheduling, impact on individual faculty members. Decisions to expand one academic department may imply negative decisions regarding others. As we noted in Opinion No. 82-51, we believe that board members in situations such as these would necessarily have difficulty avoiding being influenced in their board duties by their operational experiences and relationships as employees. Thus, in our view, holding simultaneous Board of Trustee membership and faculty employment as proposed here would raise a type of personal and organizational conflict that is forbidden by §3-103(a)(1)(ii). This conclusion is also consistent with the goals of the Ethics Law as set forth in §1-102 to assure the public that the conduct of the State's business is not subject to even the appearance of conflict.

During our consideration of this request, the Board Member noted that he may resign from the Board in order to become a faculty member. He should be aware, in this regard, that as long as he serves on the Board he must adhere to the nonparticipation provisions of §3-101 of the Ethics Law, which prohibit official participation in any matter in which he has an interest. He should thus take care to disqualify himself from participation in Board consideration or action on any matters relating to the faculty position.

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

Date: February 29, 1984

——————

1 See our Opinions No. 81-10, No. 81-7, No. 80-21 and No. 80-9. Except as otherwise expressly cited to the Maryland Register, Opinion citations are to Ethics Commission Opinions published in COMAR Title 19A.

2 See our Opinions No. 82-51, No. 82-37, No. 82-33, No. 82-32 and No. 81-17.

3 See our Opinion No. 82-51.