84.17

OPINION NO. 84-17

An opinion request has been presented as to whether, under the provisions of the Ethics Law, an individual (the Member) may serve as a member of and Secretary to the Board of Morticians, while his spouse is the President of the Maryland State Funeral Directors Association (the Association).

This request is presented by the Boards and Commissions Coordinator on behalf of the Department of Health and Mental Hygiene (DHMH or the Department). The State Board of Morticians (the Board) consists of twelve members, nine of which must be morticians or licensed funeral directors. The remaining three include consumer members and the Secretary of DHMH (or his designee), who serves ex officio. The primary responsibility of the Board is the examination and licensing of morticians and funeral directors, apprentices, and funeral establishments. It has all of the usual hearing and enforcement authority vested in licensing boards, including enforcement responsibility as to a significant number of substantive limitations on licensed activities. The Board also has authority over miscellaneous aspects of the funeral business, including partnerships, a school of mortuary science and pre-need contracts.

The Member is appointed to the Board as a mortician member, and has served for many years. He is also involved with the State Funeral Directors Association, and his wife is its current President. The Member serves as Secretary pursuant to a provision in the law that the Board "may appoint a Secretary, who may be a member of the Board." He is compensated as Secretary in an amount set forth in the State budget that exceeds the standard per diem paid to Board members. However, he is not, according to the Requestor, a State employee who is covered by employee benefits, or whose salary is part of the agency's salary budget. His compensation is treated as an increased honorarium paid to a volunteer for additional services.

The law establishing the Board (Health Occupations Article, Title 6) provides that its members are to be appointed by the Governor, with the advice of the Secretary and the advice and consent of the Senate. The Department's Assistant Secretary for Health Regulatory Programs indicates that the extent of involvement of professional associations in the appointment process varies from board to board. The process as a general matter, however, reflects the approach of the State to peer group licensure in the health professions. This Board's law requires appointment of members of the profession, but does not establish particular "slots" for members of the professional association or require appointment of an association nominee as a matter of law. Thus the agency recruitment process would include recommendations from the Association as well as from other sources, but would not require appointment of an Association nominee. Usually two or three individuals would be identified by the recruitment staff and reviewed by the Assistant Secretary's office and forwarded to the Secretary of the Department. All of these names, if acceptable, would be forwarded to the Governor, usually with a recommendation for appointment of one of the group.

The Funeral Directors Association may thus be involved in the appointment process, though it does not have a specific statutory role. The officers of the Board are elected or appointed by the Board itself. The Member indicates that many of the professional members of the Board are in the Association, which has about three-hundred funeral director members. This represents about 38 percent of the State's licensed directors. There is another association (the Funeral Directors and Morticians Association) and many licensees are not affiliated with an association. According to the Member the Association does not make formal appearances before the Board or act as a party in matters pending before the Board. He states, however, that the Board and the Association have a good informal working relationship and have cooperated on matters involving legislative action. The Association has a paid professional lobbyist who is registered with the Ethics Commission as both a legislative and executive branch lobbyist.

The issue presented by the Department in this request is whether there are any Ethics Law provisions that would apply to bar or otherwise limit the Member's service on the Board, either as a member or as Secretary. A first question is whether the absolute bar of §3-103(a) would serve to bar this service altogether. This section prohibits an employee or official from having an employment or interest relationship with an entity that is regulated by or contracts with an individual's agency, or from having any other employment relationship that would impair his impartiality or independence of judgment. We have generally held that being an officer or board member of a private non-profit association can result in an employment relationship (see, for example, our Opinions No. 83-33, No. 82-45, No. 82-43, No. 82-22, No. 82-2, and No. 80-4, 1 but have not generally applied this principle to membership in an entity in itself. We note that the Member is not an officer of the Association, though he is otherwise involved with it. We do not believe that there is anything in this situation to require a different application of our interpretation, and therefore conclude that his participation in the Association, in itself, does not result in an employment relationship that would bring him within the employment prohibitions of §3-103 (a).2

Nor do we believe that the fact that the Member's spouse is an officer in the Association would lead to an absolute bar under §3-103(a), even given the Association's role in the appointment process. We have generally not attributed employment relationships of spouses to officials and employees unless there is some clear identity of interest or indication that the situation is structured with the specific intent of avoiding the provisions of the Ethics Law. (See Opinions No. 80-17, No. 81-5, No. 81-29, No. 82-12 and No. 82-50.) The Member has a business relationship with his spouse in his funeral home, and continues to be a participant in the Association of which she is President. In our view, however, these relationships do not require an attribution of her employment relationship with the Association to him for purposes of §3-103(a). We therefore advise him that this section does not apply to bar his service as a member of or Secretary to the Board, even while his spouse is President of the Association.

Although the Member's service as a Board member or as Secretary is not absolutely barred by §3-103(a), it is necessary that he be aware of the possible application of the §3-101 non-participation provision to limit his activities with the Board. This section bars official participation in any matter in which an official or certain relatives (including a spouse) have an interest, or any participation in a matter that involves as a party an entity with which they or their relatives have certain relationships (including employment or service as an officer). According to the Member, the Association does not make formal appearances in Board proceedings, though the Board and the Association cooperate on legislative issues. Our Opinion No. 81-5 dealt with issues very similar to this involving employment by the spouse of the Energy Administrator with the Maryland Petroleum Association. In that Opinion we noted that the private entity was "primarily a lobbying organization and most likely to be engaged in informal participation in regulatory, legislative or policy issues," and noted that we did not "believe that such situations (especially general policy determinations or legislative proposals) constitute "Matters' as contemplated in §3-101."

Applying the principles of this earlier Opinion, we therefore advise the Member that the potential matters to which disqualification would apply as a technical matter are narrow. He should, however, continue to be aware of these provisions, to be sure to disqualify himself from participation in any specific matter that involves the Association, or his spouse in particular, and be sensitive to other situations that could raise a conflict of interest or the appearance of conflict.

Herbert J. Belgrad, Chairman
    Reverend John Wesley Holland
    Barbara M. Steckel
    Thomas D. Washburne

Date: July 10, 1984

——————

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

2 The Member's affiliation with his funeral home would, of course, be an employment and interest affiliation as contemplated by §3-103(a). As he is appointed as a mortician member, however, conflicts arising from this under §3-103(a) would appear to be excepted by §3-103(a)(2)(i), which provides that the prohibitions do not apply to individuals appointed to a licensing authority pursuant to a statutory requirement that regulated parties be represented on it. In our view this exception also goes to this member's service as Secretary; the enabling statute's specific reference to a member as Secretary (without limitation to a consumer member) seems to us to indicate that being a licensed funeral director is also acceptable as Secretary. (See Opinion No. 81-21 for a discussion of this exception.) Additionally, it should be noted that, as the pay and benefits of an employee do not apply to the position of Secretary, and he is not treated by the Department as an employee, his filling this position would not make him a regular employee ineligible for the board and commission member exception.