84.18

OPINION NO. 84-18

An Assistant Superintendent in the Department of Education (DOE) has requested an opinion as to whether he may teach a course at a private college whose teacher education programs are subject to approval by his unit.

The Requestor has been employed at DOE since 1967. He was appointed Assistant Superintendent for Certification and Accreditation in 1981. This Division, among other things, is responsible for developing and implementing standards for approval of teacher education programs in the State. Prior to his appointment as Assistant Superintendent, the Requestor had taught one graduate course per semester at a private college located in Central Maryland (the College). Though he discontinued this activity when he became Assistant Superintendent, he wants to again begin to teach one course per semester. The course would be a graduate course in School Law, in which the Requestor is apparently an acknowledged expert. The course is part of a program for certification of school principals. It would involve one class session per week for 14 weeks and remuneration of approximately $1300 per semester.

The College's teacher education programs are accredited by DOE and the Requestor's Division pursuant to the authority of Education Article, §2-206, Annotated Code of Maryland, and standards established by DOE in Standards for the Approval of Teacher Education Programs in Maryland. The Department's regulations in this area (COMAR 13A.07.06.01) describe the Standards as follows: This document outlines principles of organization and administration and standards for undergraduate curricula at the Maryland colleges and universities with teacher preparation programs. The organizational standards relate to objectives, administration, student personnel services, admission to the college, and to teacher education, faculty, and facilities and materials for instructional use. Curricular standards stress development of requirements in general education, area specialization, and professional education through self-evaluation and cooperation with State, regional, and national accrediting agencies.

Approval of teacher education programs in Maryland began in 1971. The program involves on-site review of the programs by a review team established within the Requestor's office by the Chief of the Teacher Education and Certification Branch. The team may include officials within DOE as well as private experts and consultants, such as local education personnel or subject matter experts in a particular field. The team may actually attend classes, review student transcripts, and evaluate faculty credentials. A report is prepared by the team and submitted to Certification Branch Staff with recommendations. The evaluation is reviewed and discussed within the Branch and a report provided to the Requestor, who reviews it and in turn submits it to the Deputy State Superintendent with a recommendation. The State Superintendent has the final approval authority.

Approval activities as to a particular college may be a continuing process, since there may be many programs in various stages of approval. A college may offer programs, for example, in elementary education, high school english, physics, or other fields. If a student completes a program accredited by DOE then he can be automatically certified to teach in that particular field. The maximum approval period is 5 years, though some programs are approved for shorter periods where there are deficiencies or questions about the program. A re-evaluation would be done at the end of this period to determine if the program has been adjusted to meet the requirements established by the original approval. The College has several teacher education programs approved by DOE, including a program for certification of school principals. A team was on campus in April to evaluate the College's graduate and undergraduate certificate programs, including the principal's program. The results of this review are still being evaluated at this time. The Requestor has not been involved in this review, as a recommendation has not been prepared for his consideration.

The Requestor has asked for permission to teach the course through DOE's outside employment review process. His immediate supervisor, who is also the Deputy State School Superintendent, indicates that the Department has a policy prohibiting employees from teaching at colleges that are subject to their authority. It has been proposed, however, that the Requestor disqualify himself from participation in any matters involving the College. Review team results would be considered by the Teacher Education and Certification Branch and any recommendations would go from there directly to the Deputy Superintendent. The Deputy has expressed his view that this arrangement is workable and would be an adequate basis for exception to the DOE policy, since it would administratively take the Requestor out of the situation. He does not think this would raise any appearance problem, as a general matter, though he recognizes some issue could be raised if a team were called upon to evaluate the Requestor's credentials as part of a review of the College's accreditation of its school principal program.

This request raises issues primarily under §3-103(a)(1)(i) of the Public Ethics Law (Article 40A, §3-103(a)(1)(i), Annotated Code of Maryland, the Ethics Law), which prohibits an official or employee from being employed by an entity that is subject to his authority or that of his agency. Since the Requestor would have an employment relationship with the College, and both he and his agency have direct and significant authority over the College, we believe that this prohibition applies here unless an exception can be allowed under our outside employment exception regulations. These regulations (COMAR 19A.02.01) are issued pursuant to introductory language in §3-103(a) providing that the prohibition applies "except as permitted by regulation of the Commission...where such employment does not create a conflict of interest or the appearance of conflict." These regulatory criteria reflect our view that the purpose of the exception provision is to allow exception where the relationship between an employee's official duties and private employment are so remote that the possibility of a conflict of interest or the appearance of conflict is unlikely. If these regulatory standards of remoteness are met, then employment would be allowable, despite the existence of authority or contractual links between an individual's State and private employment. The criteria include findings that:

A. The State duties do not significantly impact on the outside employer or a contract between the outside employer and the agency.

B. The employee is not directly supervised by a person whose duties significantly impact on the outside employer or a contract between the outside employer and the agency.

C. The employee does not supervise a person whose duties significantly impact on the outside employer or a contract between the outside employer and the agency.

D. The employee is not affiliated with the specific unit in the agency that exercises authority over or contracts with the outside employer.

E. The employee has complied with other relevant sections of the Ethics Law.

F. The outside employment involves no non-ministerial duties significantly relating to the agency's authority over the employer.

G. The employee's private duties do not involve negotiating or carrying out a contract between the agency and the outside employer (except for broad fixed reimbursement contracts).

H. The private compensation is not directly funded by the State contract.

I. The specific employment circumstances do not otherwise create a conflict of interest or the appearance of a conflict.

We have evaluated the Requestor's proposed employment with the College in view of these criteria and the altered review mechanism proposed to be established as to the College's programs, and conclude that the application of the criteria does not support granting an exception in this situation. We note that there are issues raised under several of the criteria. Under item A, for example, the Requestor's official duties include, on their face, responsibility for official actions significantly impacting on the College; he is also supervised by and supervises officials who can have significant impact on the College's teacher education program approvals (item B and C); he is affiliated with and the head of the unit in his agency that exercises authority over the College (item D); and as a College faculty member whose credentials would be subject to evaluation by a review team, he would have non-ministerial duties significantly relating to his agency's authority over the College (item F).

We realize that DOE is prepared to set up a mechanism to ensure that the Requestor does not participate in specific matters relating to the College. However, we believe that this situation is similar to the one we considered in our Opinion No. 83-11 where an employing agency adopted a disqualification approach in response to §3-103(a) and our regulatory exemption criteria. We expressed in that Opinion our view that §3-103 and the Ethics Law's §3-101 disqualification provisions must be viewed as "separate provisions expressing different concerns as to the conduct and activities of officials of the State." We noted there and conclude here, also, that disqualification cannot be viewed as a "cure" to a §3-103(a) violation, nor should our exception regulations be read as adopting this approach. We believe that this conclusion is consistent with the purposes of the Law, as set forth in §1-102, to assure the public of the impartiality of public officials. The Requestor is the head of a DOE unit that has significant authority over the certification process and his proposed outside employer, and the public would be unlikely to know or understand to what extent reorganization of duties or nonparticipation would avoid a conflict of interest or appearance thereof.

Under the circumstances presented here, we do not believe that the relationship between the Requestor's proposed private employer and his agency duties can be characterized as remote, nor can we make the finding required under item I of the criteria that the specific employment circumstances do not otherwise create a conflict of interest or the appearance of conflict. We therefore advise the Requestor that his teaching a course at the College would be a violation of §3-103(a)(1)(i) of the Law, and that the outside employment exception regulations may not be applied to overcome this bar.

Herbert J. Belgrad, Chairman
    Reverend John Wesley Holland
    Betty B. Nelson
    Thomas D. Washburne

Date: August 14, 1984

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1 Published at COMAR 19A.