85.28

OPINION NO. 85-28

The Executive Director of the Board of Examiners of Landscape Architects (the Board) has requested an advisory opinion as to whether a member of the Board may also be a teacher of landscape architecture at a local State University. The Board was established in 1971 pursuant to Article 56, §277 et seq., Annotated Code of Maryland. It has five members appointed by the Governor and its function is to administer examinations and license persons who want to practice landscape architecture. Board members must be licensed practitioners in the State with at least five years experience. The Board first examines the credentials of individuals applying to sit for the exam. These preliminary requirements include that the applicant have a degree in landscape architecture and also have completed two full-time post-degree years of acceptable work with a landscape architect or other registered person or entity (such as a planning engineer or urban development planner).

The exam itself is a three-day exam consisting of four Divisions, each with up to three parts, including both written and graphic units. The applicant must pass a complete Division based on a cumulative point criterion. Divisions if passed can be held, if others are not passed, for up to two additional examinations. The test is prepared in its entirety by the Council of Landscape Architects Registration Boards (CLARB), an organization of State Boards. Members and staff of local boards participate in various aspects of CLARB's activities, including its committee to draft the exam. According to the Board's Executive Director, the Board may review some of the proposed questions and offer comments. The content of the actual exam, however, is within the prerogative of CLARB, and is purchased by the Board for use in Maryland.

The exam is administered and, with the exception of the Plant Materials Unit, graded by CLARB. This unit is written by CLARB and includes uniform national questions, but because use of plant materials may vary according to climate, it is graded locally. According to both the Member and the Executive Director, though much other work is handled by staff, this grading process is solely the responsibility of the Board members. The actual grading is done by private local practitioners selected by the Board, with some board members themselves also reading papers. The Member indicates that his involvement here is purely administrative; he is not an expert in plant materials and has therefore never done any actual grading. This process is apparently very strictly controlled, including several control test reviews and random reviews after the grading is complete.

In addition to administering and grading the exam, the Board may review, as a Board, challenges to the examination results or process. If the applicant meets the other requirements and passes the test, then he is licensed in accordance with the Board's procedures. Licenses must be renewed biennially, but other than this little authority is retained over the licensees. The enabling law establishes very little enforcement authority, and the Member indicates complaints would be reviewed and evaluated and transferred to the Attorney General if any action is required. According to him, most enforcement is within the private civil process, and usually involves contract issues rather than professional negligence or incompetence.

The University's program in this field is a graduate program established about eight years ago. It is the only landscape architecture program in Maryland and one of about a dozen in the mid-Atlantic area. It has twenty students currently, about fifty percent local and the remainder from neighboring states or other countries. There have been fifteen graduates from the program in the eight years of its existence. The program is a three-year course (90 credits) resulting in a M.L.A. Degree. It includes courses in city regional planning, engineering, and architecture, as well as those directly related to landscape architecture. The University offers about forty-five courses in landscape architecture specifically, including a practicum. The Member indicates he teaches seven to eight. He is one of two full-time professors in the field and there are six part-time teachers.

According to the Member the approach of the program is about fifty percent directed at the practical subjects likely to be included on a professional licensing exam, and about fifty percent directed at the more academic and esoteric aspects of the field. The Member states that the courses teach fundamentals that educate people for the exam, but states that the courses are not directed at the specifics of the exam. He points out in this connection that the exam cannot be taken until two years after graduation, meaning that the earlier basic courses are sometimes as long as five years in advance of the test. Apparently there are no local review courses for this exam, though the local professional association is considering developing one.

The Member has served on the Board since its inception, and has been its Chairman. He has also been active in CLARB, filling many of its offices and serving on its boards, including the exam drafting committee. He was most recently re-appointed to the Board in 1984. He submitted an appointee exception form, but the form was blank and did not disclose his University employment, which he has held since the program was established eight years ago. He also continues an active private practice. Both of these activities were referenced in resumes available in connection with his appointment. Neither has been disclosed on Schedule H or any other Schedule of his annual Board and Commission disclosure forms (filed with the Commission pursuant to Title 4 of the Public Ethics Law (Article 40A, Title 4, Annotated Code of Maryland, the Ethics Law)).

This request arose as a result of distribution by the Department of Licensing and Regulation of Ethics Commission Opinion No. 83-45. In this Opinion we advised members and staff of the Real Estate Commission that their participation in real estate licensing courses would be in violation of §3-104 of the Ethics Law. In this case the courses were required to be approved by the Real Estate Commission, they were specifically directed to the examination and licensing process, and the Real Estate Commission's members and staff were involved in development and administration of the test. Opinion No. 83-45 was based only on consideration of the prestige provisions of §3-104 of the Law; in it we briefly discussed but did not resolve the issue of application of the employment provisions of the Ethics Law (§3-103(a)(1)). In this request we have considered both whether the employment provisions or the principles of §3-104 addressed in the earlier Opinion would apply to bar the dual employment presented here, and conclude that they do not.

Section 3-103(a)(1) includes the outside employment provisions of the Law. Subsection (a)(1)(i) bars an employee or official from being employed by or having an interest in an entity that is under the authority of or contracts with his agency. Subsection (a)(1)(ii) further prohibits any other employment that would impair the person's impartiality or independence of judgment. Since both the Board and the University are State agencies, the strict employment prohibition of §3-103(a)(1)(i) would not apply here.1 We have said, however, that the more general inconsistent employment provisions of §3-103(a)(1)(ii) can be applied to secondary employment in another State agency. The application of this provision has focused on job duties, and where both activities are with State agencies, on whether there are particular organizational and administrative problems intended to be addressed by the Ethics Law.

Applying these general criteria to the situation presented here, we conclude that the Member's dual service is not barred by this section. The situation presented here differs significantly from that presented in Opinion No. 83-45, both as to the authority and activities of the licensing entity, and as to the relationship of the secondary teaching duties to the entity's activities. The Member's Board duties apparently do not involve direct test grading, and the Board seems to have little direct impact on the test content. Also, based on his description of the University's program, it appears to be a generally academic program not directed at the examination and licensing process. The program has graduated fifteen individuals in eight years, and the Member indicates that most people sitting for the exam (approximately 60-70) are not from the program.

Nor, based on these circumstances, do we believe that the prestige provisions of §3-104 come into play here. Our criteria in applying this section has been whether the activity flows directly and immediately from the employee's or official's State duties. (See Opinion No. 83-45 for a review of our interpretation of this section.) Given the nature of the Member's involvement in the landscape architecture programs at both the Board and the University, and the remoteness of the University's academic program from the Board's examination process, we cannot conclude that there is any misuse by the Member of either position to advance himself or another. Nor does there appear to be any indication that the academic position flows directly and immediately from his service on the Board.

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 See our Opinions No. 84-4 and No. 83-27, where we conclude that State agencies are not "entities" as contemplated by §3-103(a)(1)(i), and that this prohibition therefore does not apply to secondary employment in another State agency.