86.26

OPINION NO. 86-26

The Clerk of the Baltimore City Circuit Court has requested an opinion as to whether an employee in her office may contract with the Daily Record to provide it land record information. The request involves a Circuit Court Clerk IV (the Employee) in the Land Records Division. This unit of the Clerk's Office is responsible for receiving and recording all documents regarding real property transactions in Baltimore City, including, for example, deeds, mortgages, releases, recorded liens, and assignments. These papers are first processed through the transfer tax agency (not a part of the Clerk's Office) where the taxes are collected and the property cleared for liens. In the Clerk's Office papers are presented to the counter clerk, who determines the fees on the instruments based on the consideration and in accordance with established rates and formulas. These fees are then collected and rung up on the cash register.

After the fees are collected the papers are retained by the Clerk's Office and processed to an individual who clocks them in by date and time, and assigns liber and folio numbers. Papers are then sent to the index department where they are indexed according to grantor name, grantee name, and city block identification. Prior to 1984 these documents were retained in hard books. Since then, however, they are kept only on microfiche. After indexing they are therefore reproduced and held for 30 days until the film is processed and the Office is satisfied with the quality of the copy. They are then mailed back to the property owner. They are held during this time in a bin in a safe according to date. Members of the public may have access to them during regular business hours.

Prior to 1982 the Clerk's Office provided information regarding land transactions to the Daily Record for publication. The Daily Record is a newspaper of Statewide circulation that deals primarily with business and legal information. It publishes legal notices of tax sales and auctions and suits filed, and some of its legal notices are placed as advertisements for a fee. The Clerk's Office apparently places these kinds of notices, which are included in court costs assessable to parties to actions. The office also provides the paper with a daily list of cases instituted, trustees' reports filed, auditors' reports ratified, change of name and divorce decree orders, and dispositions of civil cases in exchange for a fee and copies of the paper. The land transaction information also has in the past been provided, for a fee, on a daily basis.

In 1982, however, the land transaction information part of this practice was questioned by the legislative auditors, who thought that the fee was disproportionately small in view of the hours and staff salary involved, Auditors advised that this service went beyond what was officially required as a service of the Clerk's Office, and that employees could not be assigned to do this as part of their Clerk's Office jobs. According to the Office's Deputy Clerk for Land Records, the Daily Record asked if agency officials knew of anyone who would be willing to do the chore of collecting the information during non-duty hours. Apparently there was no suggestion at the time that the paper should send a person there to collect the information on its behalf during the day. The Deputy indicates that the agency actively sought to recruit a person who would be willing to enter into this relationship with the Daily Record, as they were unwilling for a non-employee to be in the office during non-working hours. A representative of the Daily Record indicates that this information is collected in other counties by non-court employees.

The Employee works in the Office as the counter clerk who collects and rings up the fees for the papers, accepts them on behalf of the Clerk, and sends them to the next stage in the process. The detailed description of the process of her work is included on her job description, which also lists a few other primarily clerical duties. Her work for the Daily Record is described in the contract between her and the newspaper. She works only after regular hours, usually on an every day basis. She has a portable computer provided by the Daily Record (it apparently does not use Clerk's Office space) onto which she records land transaction information from the hard copy documents that are being held in the reproduction room while film is being processed.

Neither the Deputy Clerk nor the Clerk of the Court believes that this presents an ethics problem. They point out that the Employee is a clerk who works primarily as a cashier and has little discretion and no management responsibility. They note that the records are all public records. The Court Clerk says that the availability of the records is not a particularly special privilege, and that the newspaper could collect the information through its own employee during working hours. Also, the Deputy has indicated that the agency participated in recruiting an employee to do this task for the paper, as it was concerned about the security of the records.

This request presents issues under 3-103(a)(1) and 3-104 of the Maryland Public Ethics Law (Article 40A, §§3-103(a)(1) and 3-104, Annotated Code of Maryland, the Ethics Law). Section 3-103(a)(1) prohibits an employee from being employed by an entity that has contractual dealings with her agency (subsection (a)(1)(i)), and further bars any other employment that would impair the individual's impartiality or independence of judgment (subsection (a)(1)(ii)). Section 3-104 of the Law prohibits officials and employees from using the prestige of their office for their own economic gain or that of another. In our view of how the Law impacts the circumstances presented by the Clerk, none of these provisions would apply to bar the relationship between the Employee and the Daily Record as it currently exists.

The Employee provides services to the Daily Record pursuant to a contractual agreement she has with it. We have in prior cases tended to look to the substance of such affiliations and treat them as employment even when they are based on contractual documents.1 She would therefore have an employment relationship with the Daily Record for purposes of both employment provisions in §3-103(a)(1). Also, since the newspaper has contractual dealings with the Clerk's Office, both in its purchase of information and in the Office's placement of advertising, the employment would be covered by the prohibition of subsection (a)(1)(i), unless an exception can be applied under language in the Law permitting exception where the employment "does not create a conflict of interest or appearance of conflict."

We have considered the exception provision of §3-103(a)(1), and our implementing regulations (COMAR 19A.02.01), in several prior Opinions. Our approach has been to consider the nature of an employee's official duties, as well as how and to what extent the private activity relates to the agency and its functions. The purpose is to evaluate whether employment that would otherwise be prohibited is so remote from the individual's agency and official duties that the possibility of a conflict or appearance of conflict is unlikely. For example, in Opinion No. 85-21, we granted an exception to allow a Home Care Aide in a local Department of Social Services to work for a private provider that contracts with her agency, given her lack of any official management duties regarding the contract and the nature of her private duties, and the understanding she would not work on any State cases. On the other hand, in Opinion No. 86-6, exception was not allowed for a supply clerk in a local office of a State agency to work at a local service station, because her State duties involved vehicle maintenance which was provided to the agency by her private employer pursuant to a State contract.

The principles regarding State duties applied in considering the exceptions under subsection (a)(1)(i) are similar to those applied in evaluating application of the inconsistent employment bar of subsection (a)(1)(ii). We have viewed this section as designed to deal with situations that raise clear and serious conflict of interest issues even where contractual and regulatory relationships do not exist. We have generally looked to an employee's actual and described agency duties to determine whether they would impact on or be impacted by the private activities. In Opinion No. 85-10, for example, an admitting clerk at a State hospital was allowed to be a home care provider under a Department of Human Resources program whose clients could be former patients at her facility, given her primarily ministerial duties and the absence of any continuing hospital jurisdiction over the former patients.

Official duties of the employee are also a factor in evaluating application of §3-104, as we have interpreted this provision in applying to outside employment or activities that flow directly and immediately from one's State position. We have also said that prestige issues could be raised where a person is being privately compensated for doing State work, or appears to be taking advantage of State status or access to the State system in order to advance a private activity or employer. Under this approach, individuals have been prohibited from taking private consulting jobs resulting from referrals through their State activities. (See Opinions No. 85-11 and No. 81-44.) We have also said, however, that an individual employed in the Legislative Reference Division could contract with a national entity to provide it with Maryland legislative information for use in a national publication, where the activity was on his own time and did not relate to his official duties.

In our view, applying the principles of these provisions to the Employee's situation results in a conclusion that the activity may be allowed. Based on the Employee's primarily administrative duties and the apparent absence of a relationship between her official duties and the Land Records Unit to the Office's advertisement and information dealings with the newspaper, we find that there are no issues raised under the regulatory exception criteria. The Employee's office does not provide the information she works with privately to the newspaper, and her agency duties do not involve the Office's interaction with the Daily Record. Also, the Employee appears to be working with records that are available to the public, and the equipment she uses for the activity does not interfere with the agency's activities.

Thus, in reviewing all of the circumstances of this situation, and the Ethics Law provisions that could apply, we conclude that the Employee's arrangement does not, as it presently operates, result in a violation of any of these provisions, and so advise her and the Clerk of the Court.

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

Date: November 6, 1986

——————

1 See Opinions No. 85-20, No. 84-14 and No. 80-18.