85.27

OPINION NO. 85-27

A request has been presented concerning whether a correctional officer at Roxbury Correctional Facility (Roxbury) may market insurance as a union representative to colleagues at the facility. The individual (the Officer) is a Lieutenant, first line supervisory correctional officer at Roxbury. He has been with the facility for seven years and is the Lieutenant supervisory officer on the 11 p.m. to 7 a.m. shift, in charge of a particular housing unit during his shift.

As a supervisor, the Officer has daily contact and general supervisory duties regarding the seventy-two officers on his shift (about forty may be on duty at any given time). This unit represents approximately 20 percent of the facility's 250 uniformed correctional personnel. The Officer gives orders and makes decisions in response to particular situations that may arise on the shift. According to the Assistant Warden of the facility, the position specifications for the job include provision that the incumbent could be involved in duty assignments and performance evaluations. The Officer advises that there is another Lieutenant primarily responsible for making duty assignments, and there is a Captain who completes performance evaluations. He does indicate, however, that his opinion regarding individuals is requested in connection with performance evaluations; he generally describes himself as a "link" between line employees and management. The Assistant Warden also indicates that first line supervisors have disciplinary responsibilities regarding the activities of individuals within their supervisory authority.

This request arises from the Officer's inquiry as to whether he could market insurance on behalf of an authorized union to his colleagues at the facility. Prior to his employment at Roxbury, the Officer was a full-time insurance salesman. He has retained his license and maintained a part-time insurance business. He has sold occasional policies to colleagues who have approached him, but has apparently not marketed his insurance to personnel at the facility in any systematic way. Apparently, through another person who was aware of his insurance activities, he recently affiliated with an insurance brokerage firm in Baltimore, Maryland. This firm is an insurance entity approved by the union to offer group life, group disability and dental plan coverage to its members pursuant to group insurance arrangements made by the union with participating insurers. The Officer, who is licensed to write all kinds of insurance with several companies, is able to market the various policies that are available through the union.

According to both the Officer and the union's Executive Director, group insurance policies are arranged by the union as a benefit to its members, and may be marketed in several ways. Occasionally at union meetings a presentation would be made or an insurer's representative would be at the meeting. There are also information mailings, and at some State facilities there are "insurance days" where a union representative can set up a table with information about insurance available to members through the union. Where this is done in a correctional facility it is subject to Division of Correction regulations and restrictions applying to outsiders who come into prisons. In each of these situations employees are to present their inquiries solely on their own time. They leave their name and phone number if they are interested, and the representative contacts them later to make arrangements to meet with them at their home.

If insurance is purchased under this system, then the premium is deducted from the employee's paycheck along with his union dues and provided by the payroll office to the union. The entire premium is then transmitted to the insurance carrier. The Officer indicates that as a salesman he receives 80 percent of 75 percent of the value of the premium for the first year, and 3 percent on renewals for the life of the policy. He says that there is not a great deal of servicing or follow up activity done on this type of insurance, though he may contact an insured each year regarding a review of the policy, and there may be some additional interaction if a policy is changed. Claims are filed directly with the carrier through the broker.

The Officer has a sole proprietorship insurance business which we believe, under our prior Opinions, constitutes an entity with which he has an employment and interest relationship.1 Section 3-103(a)(1)(i) of the Public Ethics Law (Article 40A, §3-103(a)(1)(i), 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 or is subject to the authority of his agency. As noted above, entities that come into correctional facilities are subject to significant control of the facility, and must operate under strict regulatory limitations. We believe that this situation is similar to our Opinion No. 82-10, where we concluded that a tax advice entity run by an employee in the Department of Public Safety and Correctional Services would be prohibited by §3-103(a)(1)(i) from coming into a correctional facility. Following the approach of this Opinion, we conclude that the Officer may not engage in his insurance sales activities at Roxbury (or any correctional facility) if this involves coming into the facility for these purposes. In our view, this situation would result in a violation of §3-103(a)(1)(i) that could not be overcome by the exception provisions set forth in that section and implemented by Commission regulations. (COMAR 19A.02.01 and 19A.02.02.)

The remaining question is thus whether carrying out these activities without coming into the facility for this purpose, but through union meetings or mailings involving colleagues at Roxbury or other nearby correctional facilities, would be barred by the §3-103(a)(1)(ii) inconsistent employment provision or other provisions of the Law. The §3-103(a)(1)(ii) outside employment prohibition bars any employment that would impair the individual's impartiality of independence of judgment. In implementing this section, we have generally looked to the nature of the individual's duties and how they relate to or could be impacted by his private employment. We have also taken into account the principles of §1-102 of the Law setting forth its goals of avoiding conflicts of interest or the appearance thereof. In the situation here, the Officer has some supervisory relationships with other employees at Roxbury with whom he could be establishing private economic relationships, and with whom he could be interacting in a vendor/vendee situation. Though he works directly with only a small percentage of the potential purchasers of insurance, we believe that to the extent he does directly or indirectly supervise an individual, having a private economic relationship with the person would be prohibited by §3-1-3(a)(1)(ii).

This view is reinforced by our consideration of application of §§3-101 and 3-104 to this type of situation. Section 3-101 bars official participation in matters in which one has an interest or which involve as a party an entity with which the individual has certain economic relationships. This limitation has been the basis on which we have advised other supervisors to avoid any actions regarding subordinates with whom they have a business relationship, where there is a partnership, corporation or business entity.2 As a general matter, we have not viewed this disqualification requirement as an absolute bar to a private activity. In this situation, however, the Officer's primary job function is to supervise individuals on a day-to-day operational basis. To introduce into this process a disqualification requirement as to individuals with whom he has private insurance business would, in our view, be unmanageable, and we have consistently held that agencies are not required to reorganize agency functions and operations to accommodate the private secondary activities of employees. Therefore, as a practical matter, the application of §3-101 would act to bar activities with these employees.

The §3-104 prohibition of use of prestige is also one which we believe could apply here, even if there were disqualification from particular matters under §3-101. In our view the existence of a supervisory relationship, with general day-to-day operational authority vested in the Officer as a supervisor, would result in an inherent prestige that would be used by him any time he sought to sell or otherwise have insurance dealings with his subordinates. This is consistent with an Opinion of our predecessor, the Board of Ethics, barring (pursuant to the Code of Ethics prestige provision) solicitation of loans by a supervisor from a subordinate. (Opinion No. 113, Title 19 COMAR.)

Taking into account all of these provisions of the Law, and their application to the circumstances presented by the Officer, we must conclude that his marketing of insurance policies, individually or through the union, to persons supervised by him is prohibited by §3-103(a)(1)(ii) of the Law and raises serious issues under 3-101 and 3-104. More limited activity on behalf of the union, dealing with employees of other State agencies in the area or other local correctional facilities, would be allowable. As noted above, however, the activity cannot involve on-site marketing and service activities at a correctional facility. The Officer, of course, should also take care, to the extent he does market to other correctional employees, that he not in any way use his position as an officer of a correctional facility to enhance his access to a client or otherwise advance his private endeavor.

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

Date: December 18, 1985

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1 See, for example, our Opinions No. 85-16, No. 85-6, No. 84-22, No. 84-12, and No. 83-28.

2 See our Opinions No. 85-18 and No. 82-49, where we considered situations where there were private business dealings between or among individuals who also had official supervisory relationships, advising that §§3-101 and 3-104 applied to restrict certain activities of those with supervisory roles.