87.17

OPINION NO. 87-17

An opinion has been requested from the Division of Parole and Probation (part of the Department of Public Safety and Correctional Services, DPSC) concerning whether a Field Supervisor (the Supervisor) in a local office who is the President of a union local may represent individuals in connection with that activity in the State grievance process. Based on our review of the information provided to us by the Supervisor, his agency and the State Department of Personnel, we advise that this type of representation is not permitted as to individuals and matters that involve his Department, but would be allowed as to matters involving other agencies as long as there are no specific circumstances that would present a conflict with his DPSC duties.

This request was submitted by the Executive Assistant Director of the Division of Parole and Probation, and involves a Field Supervisor II in one of the Division's regional offices. The Supervisor manages approximately 57 Division employees in several counties, including parole and probation agents and clerical support personnel. More specifically, his duties involve overseeing the work of the four offices to ensure that the agents are following the procedures and policies established by headquarters staff in manuals. The office is responsible for supervising persons placed on parole by the Parole Commission or placed on probation by the Counties' district and circuit courts. The Supervisor indicates that he audits a random number of cases every six months to see if agents and supervisors are maintaining the agency standards and complying with Parole Commission and court requirements. He reviews the number of contacts with the parolee or probationer, reviews restitution payments, verifies special conditions ordered by the court, and evaluates the agent's case planning and classification.

As to personnel supervision, apparently when there is a problem with an employee (such as when a person is coming in late or abusing sick leave) then it is addressed by the immediate supervisor in the particular office, which would be the Field Supervisor I or in larger offices the Office Manager. If the matter is not resolved informally at that level, then the intermediate supervisor would probably present the matter to the Supervisor for discussion, and a decision as a result of this informal consideration would be provided to the employee. The Supervisor's official position description lists several of these types of personnel management duties, as well as other significant areas of activity relating to personnel and management policy.

If a situation is not resolved in the informal way described above, the formal grievance process may be initiated, with the grievance filed in the headquarters office with the Assistant Director for Field Operations. Appeal from this level is to the Secretary or his designee, DPSC's Chief of Personnel. The final administrative appeal is to the State Department of Personnel. The Supervisor indicates that he is not a hearing officer at any stage of this process. The one recent grievance involving an employee in his area was a case where the employee grieved his performance evaluation. All performance evaluations are signed off by the Supervisor as Field Supervisor, and he indicates that he testified as a management witness in that grievance.

The Supervisor is the President of a public employee union local. He indicates that though the Local is described in its charter as an Annapolis and Baltimore City union, it includes primarily semi-professional and clerical employees throughout the State. Its members are not just Parole and Probation employees; nor is the membership limited to the western region. This is not the only local, either. In larger agencies or units, there may be separate locals. The Supervisor indicates, however, that where there are small offices of just a few people, membership tends to be in his Local, which, with its 1350 members, is the largest membership of the various locals.

The Supervisor's Local is part of a statewide umbrella organization that is the parent body of this union's government employee organizations in the State. This organization provides professional administrative services to the locals and also employs professional representatives that assist employees in the grievance process. The Supervisor indicates that he is therefore involved as an employee representative very seldom, and has never been so involved where the employee was within his supervisory responsibility. He says that while some of the employees supervised by him are in the Local, of the 1350 members, only about 15--20 are Parole and Probation Division employees.

According to the Supervisor, he is involved in some advice and direction in interpreting employees' labor rights, including those of employees in the Division of Parole and Probation, but he indicates that he is not the only person to provide opinions to employees in these situations. He has appeared once as a representative of an employee of the Division. This situation arose where the union's paid representative was uncertain that she would be able to attend, and he agreed to appear. He says that the agency was interpreting the policy wrong and an attempt was made to resolve the situation at the DPSC Secretarial level. He says that the employee won at the next level of the grievance process. The Parole and Probation official who submitted this request indicates that the agency's concern arose out of this situation. The Department's concern is whether, as a matter of general principle, agency management employees should be appearing opposite management in the agency's grievance matters.

There is no collective bargaining for employees in State government, and as a consequence this union organization and its locals do not function strictly as labor unions. They operate as employee organizations that provide a variety of representative services, perform lobbying activities, and offer health and other insurance plans and benefits. There appears to be no general statutory voluntary payroll deductions and provides that an employee labor organization or association of management officials is entitled to payroll deduction privileges, provided it meets certain criteria.

Section 53 of Article 64A (State Merit System), Annotated Code of Maryland, establishes the general authority and scope of the State employee grievance system. Subsection (b) provides that "any employee authorized to present a grievance may be represented at any stage of the grievance procedure by any person or persons of his choice." The issue of application of this provision has arisen in the context of several Department of Personnel Declaratory Rulings. In an October 31, 1979 Ruling, the Secretary of Personnel, though recognizing that the authorization to select any representative is not absolute, concluded that there was "no policy reason for denying the right of employees to select a representative of their choice because of that representative's position in State Government." He concluded that "an employee who occupies a management position may serve as an employee representative as provided for in Article 64A, §53(b)."

This early Ruling involved an individual who was in a management position but did not directly supervise other employees. In subsequent Rulings in 1984 this approach was further defined. On July 2, 1984, for example, it was ruled that "it would be clearly inappropriate for a supervisor of a large number of employees who also acts as the Department's Hearing Officer at the third step of the Grievance Procedure to also act as a grievance representative for a local labor union." Later, on November 30, 1984 the Personnel Secretary advised that "an employee may choose a management employee, whether supervisory or not, from a different Department to act as his or her grievance representative. This arrangement is improper only when the particular circumstances of the case present a conflict of interest for the management employee." This position was reiterated in a December 27, 1984 Ruling which, however, noted that some management policies transcend departmental lines and that "when the duty to uphold those management positions conflicts with the duty to present a different position on behalf of an employee, it is inappropriate for the management employee to act as the grievant's representative."

The primary issue presented by this request is whether the Supervisor's representational activities would be barred by the outside employment prohibitions of §3-103(a)(1) of the Public Ethics Law (Article 40A, §3-103(a)(1), Annotated Code of Maryland). Subsection (a)(1)(i) of this provision prohibits outside employment with an entity that contracts with or is regulated by one's agency. Subsection (a)(1)(ii) further bars any other employment that would impair the individual's impartiality or independence of judgment. The Supervisor is not compensated for his representation. We have said in prior Opinions, however, that service as an officer or manager of a private entity can result in an employment relationship with that entity, even if the service is without compensation.1 In our view, the Supervisor's service as President of the Local, and the duties relating to it, would bring him within this concept of employment. Since his representational activities are a part of and function of that service, we conclude that this activity constitutes employment with the employee organization for purposes of the Law's employment prohibitions.

Though there could be some basis for viewing the Supervisor's representational activities as employment with the person represented, and possibly within the strict employment prohibition of subsection (a)(1)(i), FT#(2) we believe that this situation is more appropriately resolved by application of the impairment provisions of subsection (a)(1)(ii). In interpreting this provision, we have looked to the duties of the individual and his private activities to determine if there is any relationship that would raise questions regarding the individual's ability to carry out his State duties impartially, or create the kind of conflict or appearance of conflict intended to be addressed by this provision.

More particularly, we have considered this provision in connection with proposed personnel representation very similar to that presented here (Opinion No. 82-37). That Opinion involved an employee relations manager in the Department of Health and Mental Hygiene who wanted to establish a private practice as an employee representative in State grievance matters. He would have basically been performing the same function as a private individual contractor that the Supervisor performs as an employee organization officer. We advised in that situation that the activity would be prohibited, based on concerns about the employee's ability to appear in the personnel process on both sides of the employee relations issue.

We recognize, of course, that the request there involved a private for-compensation practice, and also that the employee was significantly involved in the grievance process at all levels in the State system. The situation here does not present these elements, but it does involve a person who is an operational line manager with responsibilities for implementing agency management policies. To the extent that his employee representation involves Parole and Probation Division employees, he could in essence be alleging misapplication of his own agency's rules by his own subordinates, supervisors or colleagues. In our view, these considerations result in the type of relationship that presents the problems addressed in §3-103(a)(1)(ii) and intended to be prohibited thereby.

In connection with our consideration of this Opinion we requested clarification by the Department of Personnel regarding its Rulings on service by management employees as employee representatives in the grievance process. The Secretary of Personnel advised that it is generally the Department's

position that management level employees should not act as employee representatives in the grievance process when the grievant involved is an employee of the same department or division as the management employee. However, a management official should not be precluded from representing employees of another state department. The management employee's status as a union official should have no bearing on his/her representation of employees outside his/her department.

Recognizing that being involved in a grievance of a State department other than one's own would generally not present a conflict with a person's role as a supervisor or neutral hearing officer in their own agency, the Department nevertheless advised that where there are management positions that cross departmental lines, it could be "inappropriate for the management employee to act as the grievant's representative."

The interpretation provided by the Secretary of Personnel would seem, if applied to the circumstances here, to limit the Supervisor's representational activities to those involving grievants employed at agencies other than DPSC. Moreover, as discussed above, and based on all of these considerations and facts presented here, we believe that service in his union capacity as a representative for DPSC employees would also be inconsistent employment prohibited by §3-103(a)(1)(ii) of the Ethics Law. This activity would involve dealings with individuals and involvement in personnel policy matters of his own agency that would result in the kinds of relationships between private and public duties intended to be avoided pursuant to this provision.

We therefore advise the Supervisor and his agency that he is barred by the provisions of the Ethics Law from serving as a representative of an employee in the grievance process if the grievant involved is an employee of the Department of Public Safety and Correctional Services. The Supervisor would be permitted to represent employees in other agencies, so long as this activity does not involve management positions that would cross agency lines and be viewed as impacting on his impartial performance of his management duties for DPSC.

M. Peter Moser, Chairman
   William J. Evans
   Reverend John Wesley Holland
   Betty B. Nelson
   Barbara M. Steckel

Date: October 27, 1987

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1 See, for example Opinion N. 87-7 and Opinions cited therein.

2 Given the absence of compensation, it is not clear that the Supervisor would have an employment relationship with the grievant. If there is an employment relationship with a grievant who is an agency employee subject to the agency's authority, then the strict prohibition of subsection (a)(1)(i) could apply.