An opinion has been requested concerning whether a part-time title examiner (the Employee) with the Motor Vehicle Administration (MVA or the Administration) may have a vehicle salesman's license issued by the Administration, and be affiliated with a dealership licensed by and having regular dealings with her agency.

This request was presented by the Administrator of the MVA on behalf of a title examiner in a regional MVA Office. In addition to provision of telephone and in-person assistance to individuals regarding the procedure for registering and titling motor vehicles, the Employee is responsible for screening and processing title and registration applications presented by individuals, vehicle dealers and titling agents. The request is presented as a result of her affiliation with a Maryland automobile dealership. The dealership does not process its titling and registration work through the Employee's MVA branch. However, the Employee's spouse is the Manager of the dealership, and one of the benefits established in his employment contract is that he and his spouse will have dealer-owned vehicles. The Employee therefore uses as her personal vehicle an automobile that carries dealer tags. These tags are issued to dealers (through MVA's headquarters office in Glen Burnie) pursuant to the Transportation Article, §13-621. This section provides that:

If a licensed dealer owns a vehicle that is mainly used in the dealer's business and that otherwise is required to be registered under this title, the dealer may apply to the Administration for the issuance of as many special, dealer registration plates as the Administration authorizes.

In response to an inquiry regarding the Employee's use of dealer tags a tag accountability investigation was conducted and the dealership was advised that, in order to comply with this provision, vehicles bearing dealer tags should be part of the business. The dealership response was to obtain salesman's licenses for the Employee and other individuals also using vehicles with dealer tags. Vehicle salesman's licenses are issued by MVA's Division of Consumer Services pursuant to §15-401 et seq. of the Transportation Article. Section 15-404 requires that persons may not be licensed as salesmen unless they are either a licensed dealer or employed as a vehicle salesman by a licensed dealer. Applications are required to include a written statement from a dealer "certifying that the applicant has been accepted by the licensed dealer for employment as a vehicle salesman." The Employee was licensed as a vehicle salesman in April 1983 and is listed as employed by her spouse's dealership. She indicates, however, that she is not involved in vehicle sales and performs no duties in connection with this employment relationship.

The issue presented here is whether §3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law) would apply to absolutely bar the Employee's affiliation with the dealership by virtue of her holding a vehicle salesman's license. This section prohibits employees from having a financial interest in or being employed by an entity that is under their authority or that of their agency. We do not believe that the Employee has a financial interest in the dealership by virtue of her husband's employment. FT#(1). The key issue thus is whether her own affiliation with the dealership is an employment relationship for purposes of §3-103(a). The vehicle law requires that licensees as salesmen be employed by a licensed dealer. The Employee and her spouse, however, indicate that she performs no services in connection with this license. In applying the provisions of the Ethics Law, especially those regarding outside employment, we have recognized that the Law's purposes sometimes require application based on the substance of a relationship and not technical application of definitions. We have thus in some circumstances applied outside employment prohibitions to activities on behalf of non-profit organizations, where the activity involves fiduciary responsibilities or provisions of services, even where there is no compensation. (See, for example our Opinions No. 84-23, No. 82-45, and No. 82-20.)

Looking at the substance of the relationship described here, however, requires a different conclusion. Though the Employee and the dealership have identified her as being employed by the dealership in connection with the vehicle salesman's license, it seems to be clear that she performs no duties and has no functions on behalf of the dealership. This Commission, of course, does not in any way seek to interpret or evaluate this situation for purposes of the vehicle law. We do not believe, however, that the Employee here performs any duties that would constitute employment for purposes of the Ethics Law. It is thus our conclusion that this situation involves no prohibited employment relationship that would bring the Employee within the strict prohibition against employment with an entity under the authority of one's agency (§3-103(a)(1)(i)), or within the more general bar against employment that would impair one's impartiality or independence of judgment (§3-103(a)(1)(ii)).

The Employee's holding of a vehicle salesman's license therefore does not, in itself, violate the Ethics Law, provided that the Employee continues to perform no services or otherwise affiliate with the dealership. As noted above, we do not in any way purport to interpret or apply the provisions of the vehicle law. It should also be noted that §1-103 of the Ethics Law specifically recognizes that agencies may have more restrictive provisions if necessary to deal with particular agency concerns. The Employee should also be aware of other provisions of the Ethics Law that prohibit her participation in matters involving her spouse's employer (§3-101), and also prohibit the use of her official position or confidential agency information for the economic benefit of another (§§3-104 and 3-107).

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

Date: December 12, 1984


1 See our Opinions No. 84-17, No. 82-50, No. 82-12, No. 81-29, No. 81-5, and No. 80-17 for a discussion of attribution of a spouse's interests or employment to an official or employee.