86.11

OPINION NO. 86-11

The Chairman of the Maryland Board of Commissioners of Practical Plumbing (the Board) has requested an opinion as to whether he may serve as a compensated expert witness in private litigation involving activities within the jurisdiction of the Washington Suburban Sanitary Commission (WSSC). The Requestor has served as Chairman of the Board since 1979. He is currently serving a term which expires in 1988. He fills a plumbing position on the Board, which is established pursuant to Article 56, §444-462A, Annotated Code of Maryland, and which includes 9 members appointed by the Governor. The Board's Membership must include seven persons who are "practical and skilled plumbers," and must reflect a specified geographical balance.

A primary function of the Board is to examine and certify journeymen and master plumbers. It establishes licensing standards, conducts examinations and has enforcement authority to investigate and suspend, revoke, or deny licenses. There is also a State Plumbing Code promulgated by the Secretary of the Department of Licensing and Regulation (DLR), which can be amended by the Board, with the approval of the Secretary. The Board is also charged with the responsibility of enforcing the Code in areas of the State where political subdivisions have not established and implemented local standards that meet or exceed the State requirements. The Annotated Code provisions dealing with regulation of plumbers and plumbing activities set forth a variety of jurisdictional exceptions to the State program implemented by the Board. All All political subdivisions are permitted to establish and enforce local codes dealing with the design, installation and maintenance of plumbing systems that meet or exceed the minimum requirements reflected in the State Plumbing Code.

The plumbing law also establishes some particular exceptions to the certification qualifications as to specified counties, and provides in some instances for the examination and licensing authority in the law to be carried out solely by a local entity rather than the Board. In particular, §455 provides generally that in Prince George's and Montgomery Counties the WSSC has the sole power to grant certificates and make rules and regulations as to the installation of plumbing in these jurisdictions, and, generally, "shall have and exercise within *these* counties all the authority" vested in the Board by the law. There are also reciprocity provisions under which individuals validly licensed and in good standing by either WSSC or the Board may be licensed by the other without further examination or process.

The Requestor has been a plumber for over 50 years. He is a primary owner of a family business, though his resume indicates that he retired as an active officer in 1979. In his career he has served on code committees for the State of Maryland and several local jurisdictions. He served as chairman and co-chairman of the code committees of national plumbing organizations and was most recently a member of the Code Committee of the National Association of Plumbing, Heating and Cooling Contractors. He also received at least one award and was a plumbing code seminar leader in another state, apparently prior to his appointment to the Maryland Board. He indicates that he has for several years served as a consultant expert in legal matters involving plumbing and heating and has served as an expert witness. He indicates that during his tenure on the Board he has testified only in states other than Maryland.

This inquiry to the Commission grows out of a request he has received to serve as an expert witness in a Maryland civil case in Montgomery County. His participation would be on behalf of a plaintiff homeowner's association in a suit against the developer and plumbing contractor. According to the Requestor, the litigation could also involve the WSSC, since the installations that are the subject of the suit were subject to WSSC inspection. The WSSC, however, is not actually a party in the litigation, though some of its personnel may be witnesses. The plumber contractor involved employs individuals also licensed by the State Board. All of the actual activity involved in the litigation, however, is within WSSC jurisdiction, and is not under the Board's authority. The Requestor would receive a fixed hourly compensation for his services.

The request involves application of the outside employment provisions of §3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law). This section prohibits an official from being employed by an entity that contracts with his agency (subsection 3-103(a)(1)(i)), or from having any other employment relationship that would impair his impartiality or independence of judgment (subsection 3-103(a)(1)ii)). The Requestor has presented a single particular litigation action with which he proposes to be involved. Specifically, he would be testifying on behalf of a homeowner's association in Montgomery County, as to matters not within his agency's jurisdiction. In our opinion, therefore, the strict §3-103(a)(1)(i) employment prohibition does not apply, as his employment relationship is not with a person or entity subject to the authority of his agency.

His service as a consultant, however, would give rise to an employment relationship with his own consulting business, and also possibly with the attorney or plaintiff on whose behalf he is testifying. The primary issue presented here is thus whether this employment relationship is within the impairment prohibition of §3-103(a)(1)(ii), or more generally, whether it would constitute a use of prestige of office as contemplated by §3-104. As to §3-103(a)(1)(ii), we have viewed this as an "inconsistent employment" provision, but have been careful to base its evaluation on a consideration of the person's actual or described official duties, and what if any relationship they bear to the outside activity. The question, then, is how the Requestor's service as a witness could impact on his Board service.

As the Requestor indicates, the actual circumstances being litigated here are not and could not be within the Board's responsibility. Nevertheless, the plumber against whom he would be testifying is apparently licensed by his Board and could potentially appear before it. Also, as a practical matter, the codes of the WSSC and the State Board deal with technical matters and are therefore substantially similar. The Requestor's testimony as an expert on a plumber's qualifications and compliance with standards in this situation could thus involve standards identical or near identical to those for which he is accountable as a member of the State Board. However, we believe that this substantive technical similarity is too remote from his Board duties to be expected to impact on his judgment as a Board member, and also, that the potential for the particular plumber involved here to appear before him is also remote.1 We therefore conclude that this limited activity does not create a relationship between his State Board duties and his private expert witness duties that presents the type of conflict or appearance of conflict intended to be addressed by §3-103(a)(1)(ii).

Nor do we believe that the §3-104 bar against use of prestige of office for one's private gain or that of another would prohibit this activity. Given the Requestor's established reputation prior to his service on the Board, we do not think that he should be viewed as using his position as Chairman of the State Board to advance his own economic interests as a consultant or expert witness, or that his expert testimony on behalf of and in anticipation of economic benefit to plaintiff constitutes improper use of his prestige as Chairman or that of his State agency generally. This is particularly true as long as his testimony involves his expert opinion as to general technical matters rather than particular issues, policies or individuals being directly dealt with by the Board. Also, as we have noted in prior Opinions,2 we do not believe that inclusion in a resume of the State position or State experience in itself constitutes the use of prestige of office. However, we believe that the Requestor should make it clear to the attorneys with which he is working that they must rely on his prior work experience and activity in code development to qualify him as an expert. His status as a Plumbing Board member and Chairman should not be used in qualifying him as a witness.

Under all of these circumstances, we believe that the Requestor could participate in this litigation as an expert witness as described. While we have in this Opinion dealt with the particular litigation and situation presented by the Requestor, as a general matter we believe the principles we have discussed regarding the inconsistent employment and prestige provisions could be applied to other comparable situations involving Maryland litigation. However, we caution that the Requestor should be very sensitive to the circumstances of each particular situation, taking care especially to avoid any activities in Maryland jurisdictions where the activity involved is subject to the Board's direct authority. He should also be careful that the activity does not reach the type of volume where there is greater likelihood that individuals would in the future appear before his Board, or where his private work as an expert consultant does not get to the point where it appears that the State's expertise and prestige is being brought to bear against private litigants.

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

Date: June 9, 1986

——————

1 Should an individual plumber with whom he is connected in this case ever appear before his Board, however, he should disqualify himself.

2 See, for example, Opinions No. 84-23, No. 84-13, No. 83-20, No. 82-49 and No. 82-36.