84.05

OPINION NO. 84-5

A request has been presented for an advisory opinion as to whether an Assistant Revisor with the Commission to Revise the Annotated Code (the Commission) may enter into a private contract to provide bill and other legislative and regulatory information to an entity publishing a business newsletter.

The Requestor works as an Analyst II (Assistant Revisor) in the Code Revision Division (the Division) in the Department of Legislative Reference (DLR). The primary responsibility of this Division is to provide staff services to the Commission to Revise the Annotated Code. This Commission is responsible for preparing formal revisions of the public general laws of Maryland, and recommending them to the General Assembly for adoption. The Requestor indicates that the Commission has a long range planning committee that makes substantive decisions regarding which portions of the Code will be revised and when. The Division has eight attorneys, including four Article Supervisors that generally supervise and process a particular article through final enactment, and four Assistant Revisors who are substantially responsible for the actual drafting. The Assistants may be involved in presentation of an article to the Commission subcommittee considering it, while the Article Supervisors make the presentation to the Commission.

According to the Requestor, his duties involve review of all of the laws pertaining to a particular subject or article assigned to him. Revisors do not make any substantive changes; they reorganize the material and make changes necessary to conform it to the style adopted for the Revised Code. Assistant Revisors may also be involved in preparation of Revisor's Notes and Memorandum Reports prepared in connection with submission of the revised Article to the General Assembly for enactment. The description of the duties of the Assistant Revisors also includes studying other statutes (including those of other states), and review of judicial and administrative rulings.

The Assistant Revisors generally have responsibilities in particular subject areas. The Requestor's most recent assignment has involved the Article on State finance and procurement law. This work involved revision of laws pertaining to the Board of Public Works and the Departments of State Planning and General Services. He anticipates that his next assignment will be the Business Occupations Article, which would deal with barbers, cosmetologists and architects. During the legislative session, Assistant Revisors are also assigned bill drafting duties. This work can involve any subject matter, though the Requestor indicates that his field is generally the Public Service Commission, election law, and State government and finance. He also occasionally is assigned bill drafting duties dealing with taxation. Since his primary service is in the Code Revision Division, he does not currently have a legislative committee assignment.

This request relates to the Requestor's interest in entering into a contract with the National Service Organization (NSO). This entity is incorporated in Nebraska to publish a newsletter apparently geared to the health and life insurance industry. The newsletter would be a continuing information source for the laws and regulations of all of the states dealing with the subject matter. The Requestor sees his role as being the Maryland contact to provide information on the status of pending and existing legislation and regulations. He indicates that the materials would be public information acquired through the Bill Room at DLR and through the Maryland Register and COMAR in the Division of State Documents. He indicates that he would have to take care to do his research solely on his own time, and would disqualify himself from working on subjects that are involved in his outside research. He states, and the owner of NSO confirms, that it is purely an information channel; it does not provide analysis or do lobbying. It is not registered to do business in Maryland and has no other official presence in the State.

The Requestor's supervisor, the Revisor of Statutes, does not see any real problem with his accepting this employment, with certain reservations. The supervisor indicates that the Health Articles are completed, and the Insurance Article not contemplated within the next few years, so he does not envision a problem with the Requestor's code revision responsibilities. As to the bill drafting work, the concern of both the Revisor and the Director of Legislative Reference is that the Requestor be scrupulously careful about the Department's duty to ensure that drafted bills are confidential until they are introduced. Also, while he sees no problem as a general matter, the Requestor's immediate supervisor recognizes that in the future there is at least the possibility that the Requestor's disqualification in different areas could create problems if it hampered job assignments within the Department. Neither the Director nor the Revisor see the kind of impact, however, that would warrant a bar of the employment as an impairment of the Requestor's ability to carry out his DLR duties.

This request raises an outside employment issue under §3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law). This section prohibits an official or employee from having any outside employment with an entity that contracts with or is regulated by his agency (subsection (a)(1)(i)), or any other employment that would impair his impartiality or independence of judgment (subsection (a)(1)(ii)). Since NSO appears to have no official regulatory or contractual relationships within the State of Maryland, we believe that the employment question arises solely under the inconsistent employment provision of subsection (a)(1)(ii). We have generally viewed this section as a complement to the more strictly worded subsection (a)(1)(i). In an early Opinion interpreting this prohibition (No. 81-281) we concluded that the language should not be read to require the near impossible finding of an actual present conflict of interest. Rather, we concluded that the provision applies where "the relationship between official duties and outside activities gives rise to clear and serious concerns as to the ability of the official or employee to engage in the outside activity and still maintain his impartiality and independence of judgment in carrying out his State duties." In that case, we allowed a field agent for the Motor Vehicle Administration to establish a private detective agency.

In two more recent cases, we concluded that this impairment provision did not apply to absolutely bar certain private employment relationships, since the individuals' official duties as described did not involve specific actions dealing with or impacting on their private employers. (Opinions No. 83-39 and No. 83-30.) We have considered the fact that the Requestor's private job would involve his working, at least in part, with the same data source with which he works in his official duties. We are also aware that in these circumstances there is at least some potential for use of official time, materials, status, or information in carrying out private activities. We have not in the past, however, held that the mere potential for abuse to occur was a basis for absolutely barring an outside activity, especially where there is no other obvious connection between official and private duties. (See, for example, Opinions No. 82-49 and No. 82-42.) Thus, taking into account all of the facts presented here, as well as the views of the Requestor's agency supervisors, we conclude that his proposed private employment need not be viewed as inconsistent employment as contemplated in § 3-103(a)(1)(ii) of the Ethics Law.

The Requestor, however, should keep in mind the constraints under which this activity would be allowable, pursuant to the Ethics Law as well as the administrative policy of DLR. Section 3-107 of the Ethics Law, for example, forbids the improper use by employees of confidential official information, and both the Director of DLR and the Requestor's supervisor have been clear in their insistence that he must take scrupulous care to comply with the agency's rules regarding the confidentiality of certain drafted bills. Moreover, §3-104 of the Law prohibits use of the prestige of one's office for private gain, and State personnel and administrative rules strictly forbid the use of official time, equipment or personnel for private business activities. The Requestor should thus take great care to strictly separate his private activities from his official work, including disqualifying himself from participation in subject areas also related to his private duties.2

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

Date: February 29, 1984

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1 Except as otherwise expressly cited to the Maryland Register, citations are to Ethics Commission Opinions published in COMAR Title 19A.

2 We recognize that it is not entirely clear that the nonparticipation provisions of § 3-101 of the Ethics Law would apply here as a technical matter, and also that disqualification could present at least some potential future administrative problems for the agency. We believe, however, that this is a matter for internal agency discretion, and merely recommend the nonparticipation approach in order to avoid potential appearance problems that could arise if the Requestor's private and official subject areas were to overlap.