85.26

OPINION NO. 85-26

An opinion has been requested concerning whether a Community College Associate Dean for Learning Resources (the Requestor) may serve on the Advisory Board of a library consortium network with which the College has a library services contract. The Requestor is responsible for the library at the College, her position description providing that the Associate Dean is responsible to "administer the programs of the Learning Resources Division and the three Learning Resources Departments...and to be responsible for the development and maintenance of institution-wide Learning Resources Services." The incumbent is also responsible for the "development, maintenance, and promotion of quality standards in the selection of materials and equipment and the delivery of services." The position also includes budget and purchasing duties.

In December 1983 the Library became a member of the CAPCON Library Network. The CAPCON Network is established by a consortium of college libraries originally established in the District of Columbia and Virginia and subsequently expanded to allow participation by Maryland college. It is a system for providing access to the Ohio College Library Center (OCLC) system for cataloguing. The OCLC is a comprehensive on-line (computerized) catalogue system that includes approximately 90 percent of the books likely to be purchased by a college library. Access to this system means that an entity can acquire cataloguing and information on the availability of materials through a computer terminal. According to the Requestor this is more cost-effective and efficient to a library than doing its own cataloguing, in addition to providing access to a vast amount of materials.

The OCLC cataloguing system consists of copyrighted materials available only through a network, as the OCLC does not market directly to colleges. The CAPCON Network is the only network concentrating in the D.C./Maryland area. There are others in the southeast (SALINET) and out of Philadelphia (PALINET), which were provided bid packages when the contract to join a network was originally considered. Though educational purchases recommended by faculty to be available from only one source are usually sole source procurements, these services were viewed as administrative, and the original contract was competitively bid. Only CAPCON bid, however, and subsequent annual contracts have been sole source.1) As a purchaser of services, the College became a member of CAPCON, which is organized as a non-profit educational entity.

The organization's rules provide that "each member is required to register its official representative." Each member has one vote on matters before the general membership, through its official representative. In addition, the organization has a Board of Advisors, which consists of nine voting members elected by the official representatives. The network's rules and regulations seem to present the Board as a governing board, though the entity's Executive Director describes it as a recommendatory board, and the Requestor indicates it functions as a user committee representing member organizations to assure that the network functions to best serve their needs. The Requestor that the network functions to best serve their needs. The Requestor is the is the official representative designated by the College, and has recently been elected to serve on the Board. She serves only as long as she is in her current position and continues to be designated by the College. She receives no additional compensation or other benefits in connection with this activity. The issue of her service on the Board was raised by the College's attorney when the continued participation in CAPCON was being considered as a sole source award in July 1985.

Section 3-103(a)(1) of the Public Ethics Law (Article 40A, §3-103(a)(1), Annotated Code of Maryland, the Ethics Law) prohibits an employee from being employed by an entity that contracts with his agency, and further bars any other employment that would impair his impartiality or independence of judgment. We have found non-compensated service on governing boards to be employment,2 and, depending on how the Board's functions are viewed, the Requestor's service on the Board could be prohibited by either of these provisions. We view the situation presented here, however, as similar to the circumstances of our Opinion No. 83-33, where we found that service on the advisory board of an entity having a service contract with the agency was official participation not covered by the Law. This Opinion relied upon two prior Opinions where: 1) an employee of the Maryland Port Authority was permitted to serve on the Board of Directors of a non-profit volunteer entity organized to provide services to crews of ships calling at the Port of Baltimore (No. 80-5), and, 2) a nurse employed by the Board of Examiners of Nurses was allowed to serve on a committee of the National Council of State Boards from whom examinations were purchased (No. 82-28).

Though there are some factual differences between these earlier requests and the Requestor's situation, we believe that the principles discussed in those Opinions apply here and that her service on the CAPCON Board may thus be allowed as part of her College employment. The Requestor is designated by the College as its representative and serves as this and is on the Board only for so long as she continues as its designee. We therefore advise her and the College that her Board service, as described, does not violate the Ethics Law.

For the Requestor's service to be viewed as State duties not covered by §3-103(a), however, both she and the College must recognize the constraints that need to be placed on this service. For example, she is barred from accepting fees or payment for activities performed as part of or growing directly out of her official duties. (See our Opinions No. 83-4, No. 82-28, No. 81-44, and No. 80-7.) She is also not permitted to accept reimbursement of expenses in connection with official duties except in circumstances similar to payment of such expenses by the State, and consistent with applicable College procedures. (See Opinions No. 81-31 and No. 82-28.) Also, as set forth in our discussion in Opinions No. 80-5 and No. 83-33, the College should continue to be involved in her designation as the CAPCON representative; and she should take care to ensure that she speaks for the College and that her service is clearly defined to be as an official College representative.

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

Date: December 18, 1985

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1 It should be noted here that we do not comment in any way on the use of sole source or any other procurement method in connection with this contract.

2 See, e.g., Opinions No. 84-26, No. 84-23, No. 83-13, and No. 82-56.