86.03

OPINION NO. 86-3

An opinion has been requested concerning whether an employee of the Maryland State Arts Council (the Arts Council or Council) may also be an employee of a radio station owned and operated by a community college (the College) which has received grant funds in the past from the Arts Council and has inquired about the station's eligibility for grant funds in fiscal year 1987.

The Arts Council was established pursuant to Article 41, §396 et seq., Annotated Code of Maryland; it includes two members of the General Assembly and thirteen members appointed by the Governor with the advice of the Secretary of the Department of Economic and Community Development (DECD or the Department). The Arts Council is a part of the Department and subject to the authority of the Secretary (Article 41, §401(a)). It provides technical assistance and makes grants to county arts councils, arts organizations and individual artists throughout the State. The Council has eleven staff members, including an Executive Director. Its FY 1986 budget includes total expenditures of $2,393,048, of which $1,961,076 represents grants, subsidies and contributions to other arts organizations. The Council's funds come from the State's general fund appropriation, the Artist in Education Program, and a grant from the National Endowment for the Arts. The agency's two major grant programs involve: 1) direct grants to major arts organizations, which may include general operation grants or short-term grants for specific purposes; and, 2) the Community Arts Development Program, which includes grants of up to $12,000 to the local arts councils of each of the State's twenty-four subdivisions.

This request involves the Director of the Community Arts Development Program (the Employee), whose primary responsibility is coordinating with the local county arts councils to ensure that applications are submitted for the $12,000 grant to each subdivision. In this process, each local arts council determines how it proposes to use the funds and an application is submitted to the Arts Council. The Employee reviews each application and proposed budget and prepares a brief summary of the request with recommendations to the Arts Council. The Council itself makes a final determination on the application, generally approving the award consistent with the Employee's recommendation. In addition to this program, the Employee may also participate as a member of the Council's staff in the review and development of staff recommendations of grants other than those in his program. Because of his background in music, he could be asked to review grant proposals involving musicians and composers in other Arts Council funding programs.

According to the College, the Employee was previously employed by its radio station as the host of a morning program from 1979 through June, 1985. His responsibilities included announcing, selecting music and other normal activities of a radio host. The program aired Monday through Friday from 6 to 10 a.m. The program was live from 6 to 9 a.m. and recorded for the last hour. The Employee would leave at 9 a.m. to work at the Council. He had no procurement related duties at the radio station. Although he was initially part-time, the radio station subsequently classified him as a full-time employee. The College, at the time of this request, was considering rehiring the Employee, but had made no decision regarding re-employing him at the radio station other than to request this opinion.

Concerns were expressed regarding possible rehiring of the Employee, partly because the College may request grant funds from the Council, and also about the fact that the Employee would possibly be holding two full-time positions with the State. The College has apparently received at least one grant from the Council in the past. A grant was awarded in FY 1982 in the amount of $500, without participation by the Employee either as part of his Council or radio station duties at that time. Also, at the time of this request, the radio station, through the College, had filed a Statement of Intent (dated November 27, 1985) with the Council to apply for a FY 1987 grant under the general grants to arts organizations program. The completed application is due by January 31, 1986. The radio station is seeking grant funds for general operating funds to produce a program entitled "Music in Maryland."

This request presents issues primarily under the outside employment provisions of 3-103(a)(1) of the Public Ethics Law (Article 40A, §3-103(a)(1), Annotated Code of Maryland, the Ethics Law). Subsection (a)(1)(i) of this section 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.1 Subsection (a)(1)(ii) further prohibits any other employment that would impair the person's impartiality or independence of judgment. Since both the Council and the College are State agencies, the strict employment prohibition of §3-103(a)(1)(i) would not apply here.2 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 clear personal and organizational conflicts intended to be addressed by the Ethics Law that cannot be controlled by the personnel and administrative systems.

Applying these general criteria to the situation presented here, we conclude that the Employee's dual service as an employee of the Arts Council and the College's radio station is not barred by this section. The Employee's responsibilities at the Arts Council do not appear to bring him into significant or frequent contact with either the College or its radio station, or other community colleges or radio stations. Also, his employment at the radio station is described as having been limited to on-air announcing and programming, as the management of the station and officials at the College are responsible for submitting applications for grant funding. His future radio station duties would also apparently not require him to participate in the application process with the Council. Moreover, the Employee has represented that he would not participate in the future, nor would his normal duties as a general matter require him to participate in any matters at the Arts Council involving the radio station.3 It is therefore our view that the §3-103(a)(1)(ii) impairment provision would not apply to bar his affiliation with the radio station.

Nor, based on these circumstances, do we believe that the prestige provisions of §3-104 come into play here. This section prohibits a person from using the prestige of his office for his own economic gain or that of another. Our criterion 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. 83-40 for a review of our interpretation of this section.) Given the nature of the Employee's activities at the radio station, and his Council duties, we cannot conclude that there is any misuse by him of either position to advance himself or another. Nor does there appear to be an indication that the position with the radio station will flow directly and immediately from his service on the Arts Council. We advise the Employee, however, that if he were to hold both positions, there would be a need to be sensitive to the requirements of this provision as well as §3-101 (participation) and 3-107 (confidential information) of the Ethics Law, which may also restrict his activities and would apply to him in both State positions.4

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

Date: January 22, 1986

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1 We have previously determined that where an entity seeks grants from an employee's agency, it is an entity negotiating with his agency for the purposes of §3-103(a)(1)(i).See our Opinion No. 80-4.

2 See our Opinions No. 80-21 and No. 80-9, where we determined that community colleges are executive agencies of State government; and Opinions No. 84-4 and No. 83-27, where we concluded 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 agency.

3 We note, however, that the employee may be involved in reviewing grant applications in the area of music for the purpose of of assisting in the preparation of staff recommendations to the Council. He should take care that he not participate in matters, general or otherwise, which could impact on the funding decision or policy toward colleges or radio stations and therefore possibly impact on his potential employment at the radio station.

4 In determining that the provisions of the Public Ethics Law do not bar the employee's dual State employment, we also wish to make clear that we do not comment on such dual full-time employment from a general policy or management standpoint or as a matter of personnel practice.