86.14

OPINION NO. 86-14

The Supervisor of Amusement Ride Safety in the Department of Licensing and Regulation (DLR) has requested an opinion as to whether he may operate an outside consulting and amusement ride inspection business. The Requestor serves in the Amusement Ride and Elevator Safety Inspection unit in DLR's Division of Labor and Industry. He is the supervisor of the amusement ride inspection program. He also has a private business through which he has inspected amusement rides in state fairs in three other states, Mississippi, Florida and South Carolina. In at least two of these jurisdictions (Florida and South Carolina) his activities involve inspection of rides operated by an entity that also brings rides into Maryland, and is therefore subject to his and his agency's authority. This request arose in part from a letter from a regulated ride operator who expressed concerns about the fact that the Requestor has dealings in other states with operators that also come into Maryland.

The Requestor indicates that his private employment relationship here is solely with the state fair boards, and not with the ride operator. He states that the ride operators pay a fee to the fair board to bring their rides into a fair. Proceeds from the rides cover this fee and any excess or reduction is the operator's profit or loss. The fair board in turn uses the fee proceeds to cover any general fair costs, and the excess is profit to the fair. The types of costs covered include things like security and also the cost of hiring a contractor to inspect the rides. Thus, according to the Requestor, even though the ride operator must meet inspection standards and submit to inspection, it is the fair board that hires and pays him as an inspector. From his description of the inspection process in Maryland and elsewhere, however, it would appear that an inspector, though not paid by a ride operator, does have significant face-to-face dealings with the operator and his employees.

The Division's Coordinator of Inspection Programs, and the Requestor's supervisor, describes the Requestor as having "full control" over amusement ride inspections. According to his supervisor, the Requestor schedules inspections, assigns inspectors, does some inspections himself, and is the trouble shooter where any problems arise. The Requestor began his DLR employment as an elevator inspector and was assigned to amusement ride safety when that program was initiated. As a result, he attended various seminars on amusement rides and safety regulations. Since there were no safety standards developed or "in place" at that time, the Requestor began to develop inspection checklists and regulations, and subsequently assisted in the development of the Maryland Amusement Ride Safety Law and drafted his own Amusement Ride Inspector's Manual. The Requestor became the Chief Amusement Ride Inspector in 1977. The program has grown and he now supervises twenty-two amusement ride inspectors. All rides at amusement parks, carnivals, and fairs are inspected throughout the State, and the inspector has the authority to prohibit use of a ride if it violates safety standards.

Agency personnel indicate that the Maryland amusement ride inspection program was one of the first in the country, and its advice and consultation are frequently sought by other states in developing or implementing inspection programs. The Requestor has thus, through his training as well as this consultation, had considerable interaction with other jurisdictions, and has apparently developed a substantial reputation in this field. According to the Requestor, he was able to attend numerous seminars to learn about inspection of amusement rides. He apparently attended OSHA and U.S. Consumer Product Safety Commission seminars on safety as well as the annual meetings of the American Recreation Equipment Association to learn amusement ride manufacturing techniques. Additionally, as more states became interested in amusement ride inspection he was called on to speak at various association meetings.

The Division Coordinator indicates that the agency's continuing interaction with other states takes many forms. Maryland staff may assist in legislative drafting, or provide practical information regarding the operation of an inspection program. The Division may also notify other states, particularly on the Eastern Seaboard, if there are particular operators who have had problems with rides in Maryland. They may also respond to information calls from other states about particular operators. According to the Division Coordinator, however, the Maryland inspection program does not and has not actually made its staff available in other jurisdictions to perform inspection services to determine compliance with inspection standards of that jurisdiction. Some inspections may be done on equipment physically located in another state, but this has been to determine compliance with certain Maryland weight laws prior to the equipment being brought into Maryland. Maryland personnel may also go to other states (at the invitation of that state or the Consumer Product Safety Commission) to assist in investigating an accident.

The Requestor's private activity apparently arose in part out of contacts with other States in connection with his DLR duties. He indicates, for example, that Florida officials consulted with the Maryland program after an amusement ride accident and subsequent litigation. A request from the State of Florida that he perform its inspections apparently grew out of this Florida consultation with the Maryland Division. The Requestor states, and his supervisor confirms, that he coordinated with agency management regarding this opportunity. He was apparently advised that he could do this, as long as 1) it was clear he did not act on behalf of the State of Maryland, 2) his work was while on leave, and 3) he did not inspect any rides in Maryland operated by entities he had inspected in another state. He has continued, as noted above, to inspect for other states, though it is not clear that he has met the third criteria and totally avoided entities in Maryland that he has inspected in other states.

The issues presented here arise under the outside employment provisions of §3-103(a) and the prestige provisions of §3-104 of the Public Ethics Law (Article 40A, §3-103(a) and 3-104, Annotated Code of Maryland, the Ethics Law). Section 3-103(a)(1)(i) of the Law bars outside employment with an entity that contracts with or is regulated by the employee's agency. In this situation, the Requestor appears to be employed and paid by the fair boards in other states, rather than directly by the ride operators. As long as this is the case, we do not believe that there is an authority relationship here between the Requestor's outside employer and his Maryland agency. The strict prohibition of §3-103(a)(1)(i) would therefore not apply.

The circumstance presented by the Requestor's private inspection activities do, however, present concerns under the inconsistent employment provision of §3-103(a)(1)(ii) of the Law. This provision further bars any other employment that would impair an individual's impartiality or independence of judgment. We have considered this provision in several Opinions since it was added to the Law in 1981. We have generally viewed it as a complement to the strict authority and contractual provision of subsection (a)(1)(i), covering those situations where there are no authority or contractual relationships, 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 duties.

In the first case applying this provision, for example, we permitted a Motor Vehicle Administration field agent to establish a private detective agency. His private business would not have been regulated by or had any direct relationship with MVA, all MVA information would have been acquired through the public process by an employee, the business was to operate in a different county jurisdiction than the individual's MVA assignment, and most importantly, the individual advised that he did not anticipate any private clients being in any way connected to his duties with MVA. In other Opinion (No. 81-36), a Maryland State Police (MSP) officer was permitted to teach a course for the International Association of Chiefs of Police (IACP), even though the course involved a subject in which he had been trained by the MSP at State expense. The course was in another State, the IACP had no official activities in Maryland, and the officer's participation in the course related to expertise pre-dating his MSP employment. Also, his MSP duties were to maintain the MSP vehicle fleet, while the course subject involved a driver efficiency program.

In a later case, we advised that the inconsistent employment provision places an obligation on employees to avoid outside employment relationships with any entities whose activities may, at the time of the employment, be reasonably expected to come within the employee's substantive work responsibilities. (Opinion No. 81-44.) In this case a Community Development Administration employee was not permitted to accept compensation for private consulting services he provided to a city that was referred to him as part of his job duties. The employee's job duties (doing bond financing work on housing projects) included chairmanship of an agency committee that had significant responsibilities regarding approval of loan financing projects, and the project on which he worked for the city would normally have been expected to be presented to the committee. The employee's activity was disapproved despite the fact that the project ultimately was financed differently and did not come to the committee.

Opinion No. 82-21 involved a boiler inspector in the Department of Licensing and Regulation, whose private inspection business was allowed. The business was directed solely at federal installations which were not subject to his agency's authority. The firm generated its business through competitive bidding conducted by the federal General Services Administration. Even though his federal work could have involved competition with other private inspection businesses, the employee's primary substantive duties involved inspection of units directly regulated by his agency where private inspectors would not be involved. In his monitoring work as to units that would be inspected by his private competitors no evidence was presented that it was being handled in a way that could be biased for or against insurance company inspection operations with which he would be competing. We concluded there also that administrative concerns expressed by the agency were more appropriately addressed by the agency in personnel or administrative guidelines.

In another request (Opinion No. 82-49) four Baltimore City social workers involved in the local Department's child protection program were permitted to have a private practice counseling adults who had been abused as children. The practice was to be in a different jurisdiction, involved a different client population with referral from different sources, and did not anticipate any funding or likely referrals from the individuals' agency. In evaluating situations under this provision we have frequently applied this same type of remoteness test, considering the relationship of the actual proposed private activity to the individual's actual or assigned duties. In another specific instance, for example, an MSP Corporal was allowed to have a private hypnosis counseling practice, even though his original hypnosis training was through MSP. The individual's duties had changed since the training, the Hypnosis Unit had been suspended, and he had been assigned to the Polygraph Unit. He had continued his training and professional activities in hypnosis on his own, and his private activity was directed at a different approach and technique than had been addressed in his MSP training. (Opinion No. 83-10.)

We have also held in the past in inconsistent employment cases that the mere potential for abuse to occur (such as use of official time, materials, status or information in carrying out private activities) is generally not a basis for absolutely barring an outside activity. For example, an Assistant Revisor in the Department of Legislative Reference was permitted to enter into a consulting contract with a national company providing information on Maryland laws. The company was out-of-State, the subject matter was not in his area of State work, and the information he was to use, though a part of the Legislative Reference program, consisted entirely of public materials. (Opinion No. 84-5.)

Application of the inconsistent employment provision has involved a review of the total circumstances of a given situation, particularly of circumstances where an individual would deal in his private work with entities or individuals with which he would be expected to associate as part of his official duties.1 Opinion No. 85-6, for example, involved a classification counselor in a State prison who wanted to have a bail bond business. This was not allowed, because of the sensitiveness and discretionary aspects of her duties in the prison, and the overlapping population in the criminal justice system, which increased the possibility that she could see prisoners who had been in some way affiliated with her bail bond business. In a similar case (Opinion No. 85-22) a vocational rehabilitation counselor was prohibited from having a consulting relationship with insurance companies who could be expected to be appearing in workmen's compensation cases as adversary to him on issues involving rehabilitation plans.

We have also on several occasions reviewed proposed private employment that was outside the State of Maryland, generally allowing the activity, but only where it involved no contacts with entities or situations related to the person's State duties.2 One case where the activity was not allowed is Opinion No. 85-18, which responded to a request for approval of a consulting business being established by four employees of the Maryland State Lottery. A significant factor in our application of §3-103(a)(1)(ii) in that situation was that the consulting services were being provided to other states, and three of the four individuals involved had specific official duties relating to the Lottery's interaction with other states. We noted there that the employees would be involved in advising as part of their State duties the very people with whom they might be establishing private relationships, and were concerned that the inability to change roles and clearly keep the private and official relationships separate made the possibility of conflict of interest or the appearance of conflict unavoidable. Other factors here were that the company included almost all of agency top management, the initial company contract came as a result of attending a conference on State business, and there was a potential for dealing with the same vendors in their private capacity as in their State position.

Applying all of these principles to the situation presented here, we believe that the Requestor's activity is barred by subsection (a)(1)(ii), at least if it involves inspection of rides operated by entities that will be coming into Maryland. In the criteria we have applied in these and other Opinions dealing with §3-103(a)(1)(ii), the following have been significant in allowing the activity:

1) that it was out-of-State or in a different geographic jurisdiction than the employee's agency or duties;

2) that the activity involved a subject matter or direction different from the employee's duties;

3) that it was not the type of undertaking that the person might be expected to do as part of State duties; and

4) that it did not involve individuals or matters with which the person would be interacting or impacting in his State job.

The fact that a person may have received training or developed expertise in a State job has not generally by itself been a basis for disallowance; nor has the fact that a situation presented only potential for abuse of agency information, materials or prestige.

Of these criteria, the most significant applied in disapproving outside employment under the §3-103(a)(1)(ii) impairment provision has been the individual's actual or assigned public duties and whether they would bring the person into contact with the same persons or entities involved in his private activities. Our interpretation has not relied on this contact being through direct regulation or contract, or required that the private relationship be direct or strictly defined. In our view, this provision of the Law deals with activities that would impact on how the person carries out his State duties. It was specifically designed to complement the strict prohibition of subsection (a)(1)(i), and we believe this general approach is required in view of the legislative concern about appearance of conflict (§1-102(b)) and our mandate to construe the Law liberally in order to accomplish its purposes (§1-102(d)).

Applying these criteria and principles to the situation here, we believe that the Requestor here has duties that would being his private activity within this prohibition in two ways. First, he is the State's primary expert in amusement ride inspections, and is therefore the person likely to be dealing with other States as part of Maryland's official assistance and consultation with other States in developing and implementing amusement ride inspection programs. Though his State duties may not involve actually inspecting for other States, they apparently can involve in some states substantial consultation as to the content and process of their programs, under which his private inspections would be done. In our view, he would have the same kind of problem separating his private and official activities that was present in our Opinion No. 85-18, in situations where his involvement with the other state was significant. Second, some of the ride operators the Requestor would be inspecting also bring rides into Maryland, and his duties involve supervising and instructing others in ride inspections. The Requestor is the main interface between his agency and the management of fairs and carnivals sponsoring the rides; and is the person responsible for coordination and problem solving in inspection situations.

Moreover, we believe that this contact with ride operators in both his private and official duties presents problems even though his employment is not directly with the operator. His private inspection business and its success would be dependent on face-to-face dealings with the ride operators; the activity would be expected to involve discretionary decisions, negotiations and compromises, within the context of the regulatory structure of another state; and the results of these actions necessarily create expectations and relationships that would be carried into his Maryland dealings with these same entities. In fact, as noted above, it was issues raised regarding a ride operator in Maryland which he had inspected in another state that gave rise to this Opinion. We believe that this is the type of situation intended to be addressed by §3-103(a)(1)(ii), and therefore advise the Requestor that his outside activity is barred by this provision, at least insofar as it involves inspections of ride operators that come into Maryland or if it significantly involves other private entities involved in the ride industry with which he deals in Maryland.

We are also concerned that the nature of his duties and the way in which he acquires his consulting jobs present issues under the prestige provisions of §3-104 of the Law. This section prohibits employees from using the prestige of their State position for their own economic gain or that of another. In applying this provision we have considered a variety of factors, including the interpretation of our predecessor agency, the Board of Ethics, that the prohibition against the intentional use of an official's prestige of office is a restriction on the acceptance by an official of fees for services directly and immediately related to an official's duties. We have in our early application of the Law, for example, barred an employee from accepting a private fee for editing the proceedings of a meeting that he attended as a State employee (Opinion No. 80-7), but allowed acceptance of a fee for conducting a seminar in an area that was not part of the official's duties, and where he had personally maintained his professional affiliation with the sponsoring entity. (Opinion No. 80-8.)

In concluding that private activities are forbidden under this provision we have said, however, that more than common subject matter or expertise between State and private employment is required to support a finding of intentional use of prestige of office. We have thus permitted the Administrator of State Documents to be paid for a seminar in connection with a conference sponsored by the Western Council of State Libraries. (Opinion No. 81-32.) The speaking invitation grew out of his work with the National Association of Secretaries of State, with which he had been affiliated by virtue of his State position. The activity did not relate in any way to his Maryland duties, however, and none of his State duties required or were related to his work with the national association. In another situation involving this principle, we allowed an employee of the Maryland Employment and Training Office to work for a private firm in another state that was providing training through contracts with State and Local governments. The entity had no activities with his agency or in Maryland at all, and he was recommended to the company by a personal acquaintance. (Opinion No. 81-33.)

The Law's prestige provisions also were not viewed as a bar to an MSP Captain's participation in an IACP seminar in New York State. (No. 81-36.) The course involved a program in which he was not working for MSP and in which he had pre-existing expertise. A similar result was reached where a Department of Transportation contract claims attorney wished to accept a fee for participating in a private seminar dealing with Maryland Construction law. (No. 83-11.) The individual had acquired much of his expertise as a federal Corps of Engineers employee and had been invited through contacts in the federal contract bar. His State duties involved litigation rather than policy-making, and covered a different subject scope than his seminar subject. He would not have been expected to perform this type of education function in his State job. The Chairman of the Board of Contract Appeals, however, was prohibited from being compensated for his participation in the same seminar, since he was a high level visible decision-maker whose duties might have included participation in public information and education programs. Also, his course topic included his agency's program, and his primary experience and reputation had been accomplished through his substantial involvement in development of the Maryland Procurement Law and regulations. (Opinion No. 83-9.)

We have also applied the prestige provisions of §3-104 of the Law in circumstances where employees have acquired the outside employment as a result of a direct agency referral. We said in Opinion No. 81-44, for example, that

employees who take advantage of information and contacts developed directly in the course of their official duties, to establish private contractual relationships, violate the Ethics Law's prohibition against the use of one's office for one's own private gain.

In that Opinion the employee had taken a consulting job with a city referred to him by his supervisor for advice. The private consulting work included activities that might normally have been expected to be done in his State job. Other situations involving this public information function as well as clear and direct relationships to State duties are presented in Opinion No. 83-4, where the Director of Condominium Registration was barred from providing seminars to private law firms likely to be involved in the condominium program, and No. 83-40, where employees and members of the Real Estate Commission were prohibited from accepting compensation for conducting seminars or classes in real estate courses.

While we have recognized that §3-104 deals with intentional use of prestige, and that the mere fact of State employment does not in itself present a problem under this provision, we believe that there are some circumstances where the nature of a private activity and its relationship to a State job raises inherent concerns in this area. For example, where employees in a Clerk of Courts Office wished to establish private process serving businesses (Opinion No. 84-22), we found that the facts suggested that the private business would flow directly and immediately from their State job. The employees expected to rely on "word of mouth" for business, which was anticipated to come primarily from attorneys filing papers with their office. They had daily contacts in their jobs with these attorneys and were known to them solely through their positions in the Clerk's Office. We concluded there that the

individuals' establishment of private economic relationships with the same attorneys with whom they deal or could deal in their official capacity would constitute the intentional use of their official position for their own economic benefit, that is, to procure clients for their private process serving business.

Our Opinion dealing with Maryland Lottery employees (Opinion No. 85-18) also reflects the concerns we have had about employees whose private activities relate so closely to their State jobs. While recognizing there that State employees may market general expertise developed in their State employment, we expressed concerns about the nature of the lottery activity, and the integral relationship between and among the various State and private entities involved in it. In finding that private consulting business to be inconsistent with §3-104, we pointed out that the firm's only contract (to the date of the Opinion consideration) had resulted directly from a contact made by one of the employees at an out-of-State meeting attended as part of his official duties. Also, the individual's State status and credentials appeared to have been a major significance in the firm's selection for that contract, and the employee was performing State liaison functions with the other state at the same time he was dealing with it in a private capacity.

Thus, in evaluating whether an activity "flows directly and immediately" from an employee's State position as contemplated in §3-104 we have considered several factors:

1) how the employment was acquired or business under it is expected to be generated;

2) whether any part of the activity has been or would be expected to be on State time or as part of the person's State duties;

3) how the subject matter of the activity and the training and skill in it are related to State duties;

4) whether the outside activity involves efforts directly arising as a result of work performance, contacts or relationships that occur in connection with State responsibilities;

5) whether some particular aspect of the individual's State job would be impacted by the employment relationship; and

6) whether the outside employer would feel pressured or perceive an advantage in State dealings by hiring the State employee.

In the situation presented here, the Requestor's total expertise and experience came about as a result of his training with the State and his involvement in development of the Maryland amusement ride safety statutory and regulatory provisions. His contacts, both personal and institutional, with other states who would be his private employers, appear to have come about solely within the context of his State position, and it is clear that his reputation is in substantial part a reflection of his status as the Maryland "expert" in this area. Also, the Requestor's duties have in the past and continue to include liaison activities with other states that regularly bring him into contact with individuals or entities likely to hire him as an inspector. He also apparently attends seminars and conferences, sometimes as part of his official duties, that result in dealings with officials in other states and may therefore lead to private employment.

We recognize that the Requestor has a genuine commitment to and concern for amusement ride safety and the value of his assistance in other states. We are also aware that his specific activities are not ones that his Maryland agency employer would be likely to assign him to as part of his State duties, and that he believes he could keep his private relationships separate from his State ones. Also, we know that our prior Opinions have reflected a recognition that expertise developed in a State job should be able to be marketed elsewhere. We are charged by the Ethics Law, however, with concern for the appearance of as well as actual conflict, and are directed to interpret its provisions liberally in order to accomplish its purpose. We are concerned that the circumstances here present a close relationship between the Requestor's State duties and his private employers, and that he would need to clearly separate his acquisition of private work from his State status and position.

In our view the Requestor's past private employment has flowed too directly and immediately from his State duties, and is therefore inconsistent with the provision in §3-104 as we have applied it. We recognize the Requestor's good intentions. However, his private work is closely related to his State work and has resulted in a complaint from a regulated entity. We do not believe that agencies should have to be put to the test in these types of situations of defending the credibility of their programs against concerns expressed by members of the public or regulated groups that arise from the private employment relationships of full-time employees whose primary duty of loyalty continues to be to the State.

We therefore conclude that under the provisions of §3-103(a)(1)(ii), the Requestor may not do work for states where he has any significant involvement due to his State duties. Additionally, he may not work for states where he would deal with ride operators or other related business entities that would deal with him in Maryland. Finally, he may not accept employment opportunities that come to him in the course of his State activities. However, consistent with other Opinions, he may list his State expertise on a resume used for private consulting purposes.

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

Date: July 8, 1986

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1 We have, for example, considered many situations involving professionals wishing to establish private practices. In all these cases, the practice has been allowed only with the understanding that it would involve no clients who had any dealings (either directly or through relatives) with the person's agency. See, for example, Opinions No. 85-16, No. 85-4, No. 85-1, No. 84-22, No. 84-14, No. 83-31, No. 82-46, and No. 81-45.

2 In addition to Opinions No. 85-4 and No. 81-36 discussed above, see No. 83-33, No. 82-38, and No. 81-33.