84.08

OPINION NO. 84-8

The State Highway Administration (SHA) has requested Ethics Commission advice as to whether an individual in its Western Regional Laboratory may be promoted to a supervisory position that would involve his being the direct supervisor of one brother and an indirect supervisor of another brother.

This request was presented by the Director of SHA's Office of Administration. It involves a proposed promotion in the agency's Western Regional Laboratory (the Lab), located in Hancock, Maryland. The Lab's responsibility is to test all materials being used in State highway contracts. Work is done through a field testing section and a section that tests samples in the Lab facility itself. The lab testing section evaluates samples provided by the contractors to determine whether they meet materials specifications in State contracts. Most samples are approved or disapproved in the Lab, with final authority exercised by the Regional Engineer, though some may be sent to the agency's central lab in Brooklandville.

The Lab is directed by a Regional Materials Engineer, with the lab and field sections each headed by an Assistant Regional Materials Engineer. The lab section has two subsections, one with three units, and the other with an intermediate section chief and two sub-units. The Assistant Regional Materials Engineer-Lab supervises all activities of the section. He reviews all reports processed through the section and makes a preliminary determination which is then forwarded to the Regional Engineer; he is also responsible for maintenance of the Lab's physical plant and has general administrative and supervisory responsibility for the employees in the lab section. The Assistant Regional Engineer is responsible for establishing priorities and managing the facility's work flow to assure that the results and work required by the contractors are produced. He also may interact with unit chiefs if there is a problem with a test or test procedures.

The Lab is a small facility located in a small Western Maryland town in Washington County (county pop. 113,086). Most of the employees are non-degreed technicians who have many years of service at the Lab. Apparently, many of the individuals in the Lab are related to each other. Until now, none of these individuals has held a permanent position in a supervisory relationship with a relative. The agency, however, is proposing to promote one individual (the Employee) from his position as Bituminous Metals Section Chief to Assistant Regional Materials Engineer-Lab, and promote his brother, John, from a Unit Chief position to the vacated Section Chief position. John would not be in the supervisory chain over a third brother, Paul, but, as Assistant Engineer, the Employee would be directly supervising John, and indirectly supervising Paul.

Both the Employee and his brother John have over 20 years of service in the Lab. The Lab's Regional Engineer indicates that there is another candidate for the position, but he believes that the Employee's experience and length of service at the facility make him the better choice. The Employee indicates that he has filled the position in an acting capacity before and there were no problems. Both he and the Regional Engineer say that the technical nature of the Lab's work leaves little room for discretion or favoritism.

The SHA's Assistant Chief Engineer for Materials and Research agrees that this situation would not present a problem for the Lab. He notes that the general policy is not to allow relatives to work together, but believes that this situation is unique, given the Lab's size and location. He states that all of these individuals are good workers with good performance ratings. Both he and the Regional Engineer agree that the facility could function efficiently if the Assistant Regional Engineer (the Employee) were taken out of the supervisory chain for purposes of personnel types of decisions as to his two brothers. Given the size of the facility, the Regional Engineer believes that he is familiar enough with the work of the individuals to do performance evaluations and make other personnel decisions.

We have considered issues relating to the employment of relatives in two Opinions, Nos. 81-2 and 81-37.1 In both of these Opinions, we concluded that the Public Ethics Law (Article 40A, Annotated Code of Maryland, the Ethics Law) does not have a nepotism provision that flatly bars the employment of relatives of incumbent State employees. We declined in these Opinions to be a general repository for all administrative and other issues arising from this type of employment situation. We did indicate, however, that the Ethics Law could apply where participation in hiring, promotion or other supervisory or personnel matters regarding a relative would result in violation of §3-101 of the Law, and have also recognized that employment circumstances involving relatives could raise issues under the §3-104 prohibition against use of prestige of office.

The situations presented in both of these Opinions were approved. Opinion No. 81-2 involved an incumbent employee in a secretarial position that involved no supervision or personnel decision-making; and in Opinion No. 81-37 the individual was an agency manager able to totally disassociate himself from decisions relating to his spouse's service to the agency. The circumstances presented here are different in that they could place the Employee in the direct line of supervision of his two brothers. Subsection §3-101(a) of the Ethics Law bars any non-ministerial participation in a matter in which an employee's brother has an interest, interest being very broadly defined in §1-201(n) of the Law. Section 3-104 prohibits an official or employee from using the prestige of his office for his own economic benefit or that of another.

Potentially, the Employee could run afoul of these provisions in exercising personnel responsibilities in situations involving his brothers. Other agency managers, however, appear to be satisfied that personnel matters can be handled by the Regional Engineer, though substantive interaction among the three employees could probably not be avoided. The Regional Engineer has made it clear that he is familiar enough with the work of the Lab and of these employees to be able to take over any supervisory personnel responsibilities that might otherwise be handled by the Employee, including performance evaluations, promotion decisions, disciplinary actions, and time and attendance decisions. Also, the agency managers here are convinced that the nature of the substantive management decisions handled by the Employee would not result in the types of relationships and participation situations addressed in §§3-101 and 3-104 of the Ethics Law.

Under these circumstances, and in reliance on the agency's assurance that this process is otherwise within applicable personnel procedures, we conclude that this situation does not create such continuing and inherent problems that the Ethics Law must be applied to absolutely bar this proposed promotion, and so advise the agency and the Employee. Agency and Lab officials, however, should be aware that we do not purport to deal with any management or administrative issues arising from the employment of related individuals in a facility such as this. Also, our conclusion is based solely on the facts and supervisory relationships set forth regarding these particular employees, and at this particular time. We do not express general approval of promotions as to others in this facility, and we rely on the agency's assurances that it will continue to monitor and be sensitive to the circumstances of this particular situation.

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.