An advisory opinion has been requested as to whether a specialist in athletics in the Department of Education (DOE) may participate, for compensation, in a radio series on Maryland high school athletics.
The Requestor's primary State duties involve being executive secretary to the Maryland Public Secondary Schools Athletic Association (MPSSAA or the Association). This organization is organized under the auspices of DOE, and is responsible for carrying out athletics tournaments and advising the Department on matters of policy relating to high school athletics in the State. It is a voluntary organization composed of representatives of all 23 counties (Baltimore City is not a member). The Association prepares rules and regulations for members participating in the high school athletics program, which are recommended to the State Superintendent for his adoption.
As its primary professional staff the Requestor is responsible for carrying out much of the Association's activities. He distributes rule books for each sport; certifies officials; plans, coordinates and implements State tournaments; approves athletics contests for schools; and prepares and distributes calendars of events. He also provides technical assistance to schools and carries out State by-laws regarding violations, penalties and appeals under the State rules regarding athletics. State tournaments run by MPSSAA are funded primarily through gate receipts. These funds are also the source of one-half of the Requestor's salary and benefits. The remainder is paid through regular State payroll funds. Even though the Requestor is thus assigned part-time with DOE and part-time with MPSSAA, he is still a full-time regular State employee for personnel purposes.
This request has to do with a proposal initiated by a private party who would like to do a weekly radio program dealing with Maryland high school athletics. This individual is formerly general manager of a metropolitan radio station, and he would be working with a professional sports announcer affiliated with a local municipal radio station and a local cable network. The format of the proposed program would be a 5-minute segment (2-1/2 minutes actual air-time) with the sports announcer as host and the Requestor as a regular guest. The subject would be Maryland high school athletics, focusing on upcoming tournaments, and spotlighting teams, athletes or coaches in various sports during the season and leading up to the tournament. The Requestor indicates that he would be identified as involved with the Association, but not as a State employee. He would also be discussing information beyond what would normally be addressed in his public relations activities for the Association. He states that he would be doing additional research on his own time and not using DOE or MPSSAA time or materials in connection with the radio program.
The program would be prerecorded and marketed to various local stations. The recording session would be approximately two hours (an estimate based on the time involved in preparing a demo), and the Requestor indicates a possible compensation to him of $50 per week. The project was originally considered for the Spring 1984 basketball tournament, but did not get going in time. It is still being developed as a possibility though its current marketing status is unclear. The Requestor indicates that he may deal with radio stations in connection with his State duties. He states that MPSSAA seeks to make maximum use of public relations, press and media opportunities, since the tournament program is funded solely through gate receipts. (Local regular season contests are totally within the local county budget.) According to the Requestor, radio and TV stations do cover tournament play based on agreements with and in accordance with rules established by MPSSAA and DOE. A fee is paid by the broadcasters, and the rules deal primarily with advertising, barring ads marketing alcohol or tobacco products as well as political advertisements.
Management personnel in DOE, including the Division of Instruction, have been consulted regarding this situation. Generally they support this activity as one that would benefit Maryland athletics, as it would improve the visibility of the program and bring more people into the tournaments. DOE managers indicate, however, that this would not be a part of the Requestor's job, and that they would be unwilling to provide State compensation for these activities. His immediate supervisor indicates that though he may earn compensatory time for extra time spent during the day (on a week-end or holiday) at tournaments, the Department does not allow additional compensation for evening work, even for tournament activities that are clearly part of his official duties. The Requestor does currently participate, without outside compensation, in interviews and other appearances with the media in his official capacity, and this activity would not be affected by his outside employment.
We find the circumstances of this request to be very similar to those presented in our Opinion No. 82-42.1 That request involved application of the outside employment provisions of the Public Ethics Law (Article 40A, Annotated Code of Maryland, the Ethics Law) to the employment of an agency's public relations director with a local daily newspaper. These provisions bar outside employment by officials and employees with any entity that is under their agency's authority or that has or is negotiating a contract with their agency (§3-103(a)(1)(i)). They also prohibit other employment that would impair an individual's impartiality or independence of judgment (§3-103(a)(1)(ii)). We have consistently held that provision of personal services gives rise to an employment relationship. We also believe that this venture, though sponsored as a free lance project, involves an entity as contemplated in the Ethics Law.2 Based on the facts of this situation as currently presented to us, however, we do not believe that the Requestor's proposed activity would violate either of the cited outside employment provisions of the Law.
First, though this endeavor does involve an "entity," as we construe that term, it is apparently being organized by an individual not affiliated with a radio station or otherwise having dealings with the Requestor in his DOE or MPSSAA capacity. Under these circumstances, we do not believe the strictly worded prohibition of §3-103(a)(1)(i) would apply.3 Nor do we believe that the Requestor's proposed activity need be viewed as "inconsistent" employment under §3-103(a)(1)(ii) of the Law, as we have applied that provision in other situations. We have generally viewed this provision as applying where the strict contractual or authority relationships do not exist, but where there are relationships between official duties and the private entity that raise "clear and serious concerns" about the individual's ability to carry out his official duties.
As we considered in Opinion No. 82-42, we believe that the agency's view that this activity would be of benefit to the agency's and MPSSAA's program is of significance in evaluating application of the Law's inconsistent employment provision. We also understand that this work will not be undertaken by Requestor in his capacity as a State employee, and that it is not part of his State employment. It will involve information and work developed on his own time. Also, the Requestor's official work with radio and other media currently does not involve any competition; any station that wants to broadcast a tournament and will pay the fee may do so. Moreover, the promoter of this show has no dealings with MPSSAA, and will be doing all of the marketing of the series. The Requestor will be paid a nominal fee for each week, and will not be involved in promotion of the series to stations.
Under these circumstances and in view of the fact that DOE approves of the activity as a benefit to the program, we do not believe that the Requestor's proposed participation in the radio series must be viewed as inconsistent employment under §3-103(a)(1)(ii) of the Ethics Law. We therefore advise him that he may undertake this employment without violation of §3-103(a), provided that his activities continue strictly within the framework of the circumstances described to us and set forth in this Opinion.
Herbert J. Belgrad, Chairman
Reverend John Wesley Holland
Betty B. Nelson
Barbara M. Steckel
Thomas D. Washburne
Date: June 7, 1984
1 Except as otherwise expressly cited to the Maryland Register, Opinion citations are to Ethics Commission Opinions published in Title 19A COMAR.
2 Section 1-201(d) defines the term "business or business entity" to be "any entity, regardless of form."
3 If this situation changes, of course, it would have to be reconsidered in view of the specific relationship of the private sponsor to the Requestor's agency, and in view of our outside employment exception regulations. (COMAR 19A.02.01.) The Requestor should also be aware, if the sponsor's situation changes, of the application of §3-105, which bars employment with an entity that has contracts with the State that are within the individual's responsibility, and also §3-101, which bars official participation in matters that involve as a party a business entity with which one has an employment or contractual relationship.