85.12

OPINION NO. 85-12

A request has been presented concerning whether the professional association of a member of the Board of Examiners in Optometry (the Board) may, for compensation, lease office space to the Board for its practical examination. The Board is a licensing unit within the Department of Health and Mental Hygiene (DHMH). It is established pursuant to Article 43, §368-384, Annotated Code of Maryland, and has broad authority to establish and administer examinations and licensing requirements for optometrists in Maryland. The Board has six members appointed by the Governor based on the recommendation of the Secretary of DHMH. Five members must be practicing optometrists, and the sixth is a consumer member.

In past years the Board has tested licensing applicants through a written examination prepared by the Board, along with practical examinations in five areas and one clinical examination. The practical and clinical portions of the exam have been conducted during the evening hours at the Columbia offices of an optometric group practice (the Practice). A member of the Board, formerly its President, is a member of the Practice. Since the examinations were given after office hours and did not interfere with the firm's business, the facilities were used without compensation. Beginning in 1985, however, the Board will not be administering its own written examination, but will be accepting the National Board examination, and the procedure for the practical and clinical exams has therefore been changed.

According to the Board's Administrator, acceptance of the National Board's examination results allows the Board to administer the practical and clinical parts of the test during the daytime. Since the facilities used for these activities would have to be closed for the two days of the examination, it is necessary to compensate whatever firm or individual agrees to allow use of their facilities. To this end, the Board issued a Request for Bids to a list of nine practitioners in the Baltimore area. Two responses were received and are being reviewed to determine whether they meet the Board's needs as to examining rooms, equipment, parking and other factors. One bid was to provide facilities for $3,000 for two days. The other was significantly lower, but it was not clear whether this entity would be able to supply all of the required equipment.

An opinion was requested from the Ethics Commission as to whether the Board could accept a bid from the Practice to use its facilities, for a fee, if the current responses from other practitioners were not satisfactory. The Practice is incorporated as a professional association and has several locations, including a Columbia office. Any agreement for the Board to use these facilities would be between the Practice and the Board, and would reflect the cost to the Practice of closing this facility for the 2-day period of the examinations. The Member is an employee and 25 percent owner of the corporation. The Member indicates that he has not participated in the Board's process of finding a location for the practical exams. He states that this has been handled by the individual who has been the Secretary of the Board, and recently replaced the Member as President. Apparently, however, the Member did participate in the agency's initial decision to move the practical exams to the daytime.

Section 3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law) prohibits an official or employee from being employed by or having a financial interest in an entity that contracts with his agency. Since this arrangement would involve a contract between the Practice and the Board, and the Member has both an employment and financial interest (his financial disclosure form lists the amount of the interest as $50,000 and over) in the practice, this prohibition would apply unless an exception were allowed. The Law establishes several exceptions or exemptions: the licensing or regulatory exception where members are required to be licensed by the agency (§3-103(a)(2)(i)); the time of appointment exception (§3-103(a)(2)(iii)); the Gubernatorial exemption (§3-103(a)(3)); the board and commission exception (§2-103(h)); and the exception based on Ethics Commission regulatory criteria (§3-103(a)(1)).

In our Opinion No. 81-39 we considered an individual who was a member of this same Board and who was affiliated with an entity that provided continuing education programs that were subject to the Board's jurisdiction. Exception under §3-103(a)(2)(iii) of the Law was allowed, since the individual had disclosed his private involvement with the continuing education program in connection with his appointment. In a footnote to that Opinion, however, we noted that the §3-103(a)(2)(i) exception would not apply, since the statutory appointing criterion was directed solely toward his status as a licensed optometrist rather than his activities in continuing education. In our view, application of these principles here would bar any exception under either of these provisions, since rental of space to the Board is presumably not within the scope of the requirement that a person be a licensed optometrist, and this activity was not in existence and not disclosed in connection with the Member's appointment.

We have also evaluated this situation in view of the general exception set forth in §3-103(a)(1), and our implementing regulatory criteria (COMAR 19A.02.01 and 19A.02.02). This exception is allowed where an interest is disclosed and where there is a determination that the situation presents no conflict of interest or appearance of conflict. The regulations are designed as guidelines for determining whether the relationships between private and official activities are sufficiently remote so that these statutory criteria are met. They include review of official responsibilities, consideration of the nature of the private affiliation, and a general evaluation of whether the total circumstances of the particular situation would present a conflict of interest or appearance thereof.

In considering the regulatory criteria, it is our view that they cannot be applied to allow a contract between the Board and the Practice. This Board is a small Board, with a small staff. It apparently functions as the primary decision-maker as to both matters of policy and operation in the optometrist licensing program. The contract here would be directly between the Practice and the Board, and both the general decision to alter the licensing procedure and the specific decision to select a particular site for the practical exam are matters for direct decision and consideration by the Board. The Member, as a full member of the Board, would normally be expected to be a participant in these determinations.

We recognize that the Member is prepared to disqualify himself from the contract decision if his Practice were to submit a bid. We have, however, consistently held that disqualification cannot be a cure for a violation of the strict prohibition of §3-103(a)(1)(i).1 Moreover, our regulatory criteria have not been viewed as adopting this approach. These criteria, consistent with the statutory standard, include consideration of the total circumstances and the potential for appearance of conflict as well as actual conflict. Disqualification from participation in decisions such as those presented here, no matter how carefully and scrupulously followed, is often simply not a matter of public knowledge. What is seen by the public is that the Board is contracting directly with the business of one of its Members, who clearly has joint authority and responsibility for the contract decision. We believe that this presents the kind of appearance concerns that militate against application of the exception to this situation. We therefore advise the Member and the Board that a contract with the Practice as proposed would be inconsistent with §3-103(a)(1)(i) of the Ethics Law, and that this conflict could not be overcome by application of the statutory regulatory exception provisions of §3-103(a) or other Ethics Law exception or exemption provisions.2

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

Date: August 5, 1985

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1 See, for example, our Opinions No. 84-18, No. 84-3, No. 83-34 and No. 83-1.

2 The exception provisions in §§2-103(h) and 3-103(a)(3) have been viewed by the Commission as extraordinary remedies. Both require a recommendation from the Department, and a §3-1-3(a)(3) exception must be requested by the Governor. Under §2-103(h) there must be a finding that application of the Law would constitute an unreasonable invasion of privacy, would significantly reduce the availability of qualified persons for public service, and is not necessary to preserve the purposes of the Law. Section 3-103(a)(3) is specifically to apply "in extraordinary situations," and must be based on the finding that failure to grant the exception would reduce the State's ability to recruit and hire highly or uniquely qualified professionals or assure the availability of competent services to the public. No exception request has been received under either of these provisions.