86.06

OPINION NO. 86-6

The Department of Human Resources (DHR) has requested an opinion as to whether a supply clerk in a local department of social services, who has some vehicle maintenance responsibilities, may have secondary employment with a local gasoline and repair facility that performs maintenance and repairs on State vehicles (including the local department's). The request concerns an individual (the Employee) who is a Supply Clerk I with a County Department of Social Services (DSS or the Department ) and her outside secondary employment with a service station (the Station) located near her office.

The State of Maryland through the Department of Budget and Fiscal Planning (DBFP) has a maintenance contract with McCullagh Leasing, Inc. (McCullagh) of Roseville, Michigan, for service of State owned vehicles. McCullagh designates local repair facilities which will maintain and service State vehicles pursuant to the contract. The two facilities used by the DSS for vehicle maintenance under this process are the Station and a Goodyear Tire Center in another part of the County. McCullagh is a national fleet leasing company affiliated with the Control Data Company. It provides its customers with a McCullagh Leasing Credit Card which enables them to charge maintenance and repair on the vehicles at various local gasoline and repair facilities approved by McCullagh throughout the country. The contract for maintenance of State vehicles was competitively bid, with McCullagh and several others bidding for the contract. McCullagh was selected in part because it had adequate maintenance facilities in the State, and because it offered a system that did not require an immediate payment for repairs.

According to DBFP, the contract is between the DBFP and McCullagh, and the State has no official say in the choice of the maintenance and repair facilities (though in this situation the agency originally suggested the Station's inclusion to the Station). McCullagh selects the facilities where its credit card will be honored for maintenance on State vehicles, and the State receives the resulting list of facilities where State vehicles can be serviced by use of the McCullagh card. Using this credit card procedure after service is done, the facility servicing the vehicle forwards a statement to McCullagh, which in turn submits a statement to the using State agency for payment. The using agency then processes the statement for payment to McCullagh. The State contract with McCullagh has been automatically renewed by the State on an annual basis for the last seven years. Services covered by the contract include oil changes, tuneups, tire changes and winterizing for the vehicles, although major repairs can also be charged on the credit card. The purchase of batteries and tires are covered by separate fleet contracts bid by the Department of General Services. (Note also that this is not an exclusive contract; services may be procured from other service stations on a non-credit basis.)

The Employee has worked as a Supply Clerk I (present Grade 3, Step 2) with the DSS since May, 1984. She is employed in the agency's Division of General Services and her primary responsibility is to act as the Vehicle Control Clerk for the fleet of agency vehicles located at both of its offices in the County. She also assists in the Mail Room, Message Center, Closed Files Room and the Supply Room as needed or assigned. Generally, the Employee's responsibilities as Vehicle Control Clerk are to:

1) maintain records on mileage, maintenance and performance on the 36 vehicles assigned to the DSS;

2) schedule preventive maintenance consistent with DHR schedules on the DSS vehicles at the two McCullagh locations in the County, based on a monthly print-out listing;

3) advise the Service Supervisor of any repairs or replacement parts necessary on all vehicles, securing a price for the repair and bringing it and the previous repair work receipts to the supervisor for approval;

4) deliver the vehicles assigned at her own office for service and pick them up after the repairs have been completed;

5) sign receipts for the work, repair or maintenance of the vehicles when she picks them up;

6) maintain and secure information on vehicles that have been in accidents, including three estimates for repair, which are submitted to the Service Supervisor for review and forwarded to the DHR fleet manager for a determination as to whether to repair the vehicle or trade it in; and

7) assign agency vehicles daily to employees in her office, and rotate vehicles among employees in the agency's two offices to insure uniform annual mileage.

Additionally, the Employee assists individuals who may need assistance with the State vehicle and responds to reports regarding car problems turned in by employees.

According to the Employee and her supervisor, she schedules the DSS vehicles in for regular maintenance, delivers and picks up the vehicles if necessary, and signs the receipt for the work done. She is also contacted by the Station if additional (non-routine) repairs are required. The Employee's supervisor has approval authority up to $100 for the repairs, with repairs in excess of this amount approved in turn by her supervisor. After the repairs have been approved and completed, the Station gives the Department a receipt listing work done and submits a monthly statement to McCullagh's, which in turn submits a monthly statement to DSS. The statement is reviewed by the Employee's supervisor along with the receipts received at the time of the repairs. She prepares a purchase order, attaches the receipts and submits them to the DSS Purchasing Department. The Employee apparently is not generally involved in the review of the McCullagh statements unless her supervisor has a question about a particular bill.

Since the Employee began working for the State, she has held outside secondary employment, initially working for a convenience store. She started to work for the Station in July, 1985. According to the Employee, the job came about as a result of a general conversation with the owner of the Station. He discussed how difficult it was to find good help to pump gas during the evenings and on Saturday and Sunday, and the Employee indicated that money was tight for her. She is presently working 39 hours a week on evenings and weekends. She works from 7:30 A.M. to 3:30 P.M. daily for the DSS. According to the Employee, her primary duty at the Station is to pump gasoline for customers. She also answers the phone at the station and cleans the office area and rest rooms.

The owner of the Station indicates that it has been a family operation for eighteen years. The Station was added by McCullagh as a service facility in July, 1984. A review of the Station's statements to McCullagh for a five month period at the end of 1985 indicates that three were in the $500 range, one was for a little over $1300, and one was for $8. Apparently the Station has five or so private companies for which it does fleet repairs and maintenance, and also services vehicles for two other State entities under the McCullagh contract. According to the owner, he gives the companies' and the McCullagh contract vehicles priority for service and as a result turns away business from individual customers.

Though this request raises potential issues under several provisions of the Public Ethics Law (Article 40A, Annotated Code of Maryland, the Ethics Law),1 we do not address all of them at length here, as we believe that this request is fully resolved by application of the impairment provisions of §3-103(a)(1)(ii) of the Law. This provision bars employees and officials from having outside employment which impairs the impartiality or independence of judgment of the official or employee. We have read this section to be a complement to the more strictly read provision of §3-103(a)(1)(i) of the Law, covering those situations where the authority or contractual relationships of §3-103(a)(1)(i) may not be met, but where the relationship between official duties and outside activities gives rise to clear and serious concerns as to the ability of the official or employee to engage in the outside activity and still maintain his impartiality and independence of judgment in carrying out his State responsibilities.

The Employee's duties as Vehicle Control Clerk bring her into frequent contact with the Station. While the scheduling and costs for routine maintenance and repairs may be determined to some extent by the requirements of the McCullagh contract, and other of the Employee's responsibilities may be viewed as ministerial, her secondary employment with the Station raises some concerns about potential abuses and creates a possible appearance of conflict of interest. Though final approval of repairs may be her supervisor's responsibility, she is the primary and first line contact between the Station and her agency as to the Station's vehicle repair work for the agency. It is her information and recommendations as to repair activity that are the basis for the decision to have work done and to accept completed work. Also, given the extent of her private employment, she necessarily has a significant stake in her continued good relationship with the Station.

Under all of these circumstances, and in view of the fact that the situation presents potential issues under so many other provisions of the Law (see footnote 1), we must conclude that the Employee's outside employment with an entity with which she works on a day-to-day basis for her agency is the type of employment intended to be barred by §3-103(a)(1)(ii). It represents the type of activity about which the Legislature was concerned in §1-201(c) of the Law where it found that the purpose of the Law was to avoid the appearance of conflict as well as actual conflict, and in §1-201(d) where it directed the Commission to apply the Law liberally in order to accomplish these purposes. We therefore advise her to discontinue it within 90 days of the date on which this request was heard by us.

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

Date: March 19, 1986

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1 For example, §3-103(a)(1)(i) bars employment with an entity that contracts with or is under the authority of one's agency. The question here would be whether the Station's participation in the McCullagh contract results in a contractual or authority relationship with DHR or DSS. Section 3-104 further prohibits an employee from using the prestige of his office for the private gain of himself or another. This provision could apply since the Employee's relationship with the Station came about through contacts she had with the owner as a result of her official duties. The fact that her official duties include as a significant factor her interacting with the Station could also bring §§3-101 and 3-105 into play. Section 3-101 is a disqualification provision forbidding nonministerial participation in any matter involving as a party an entity with which the individual is employed. The issue here would be whether the Employee's responsibilities as fleet manager would be characterized solely as ministerial. Section 3-105 provides that an employee whose duties include matters involving a contract with the State may not be employed by an entity that is a party to the contract. Arguably, even though it is a subcontractor through McCullagh's, the station could be viewed as a party to the contract, and the Employee's duties clearly include matters pertaining to the contract.