87.20

OPINION NO. 87-20

The Department of Legislative Reference has requested an opinion as to whether an employee on educational leave of absence from the Department is barred by the Public Ethics Law (Article 40A, Annotated Code of Maryland, the Ethics Law) from being employed by a lobbyist. We advise the individual and the Department, based on the description of her former position and the circumstances of her leave of absence, that the Ethics Law would not apply to limit her employment while she is on leave of absence.

This request was presented by the Personnel Officer of the Department of Legislative Reference (DLR or the Department), and involves an individual who has been employed at the DLR as a Legislative Office Specialist III (Grade 8, Salary Range $14,876—19,461). This classification includes proofreaders, CRT operators, information clerks, and library clerks. The Employee served as an Information Clerk, working at the State House Information Desk. Generally persons in these positions are responsible to access the General Assembly computer to determine and provide information regarding the status of bills to any requester, including members of the General Assembly, the public and lobbyists. Service is provided both in person and by telephone.

The information desks are staffed all year. During the off-session staff will obtain bills and send them to anyone who requests them. During the Session they may also provide other more general information, such as legislative calendars, synopses, and hearing schedules. According to the requestor, this particular employee did not have any decision-making responsibilities, such as decisions to publish, which would be made by her boss, the Information Officer. She was, however, a senior person, and could have had responsibility for assigning tasks to other staff members, particularly with regard to the unit's job of updating the bill status cards maintained for use by any person in the basement of the State House.

The agency indicates that, though information officers access the computer in response to requests for information, they are not responsible for inputting material into the computer system. This information is collected by DLR staff members who work on the floor of the House of Delegates and the Senate and generate the information regarding floor action that is used to update the computerized bill status system. This is then provided directly to the computer center, as is information from the committees regarding committee action on bills. Nor does this position involve work with bills that are in the drafting process and confidential until introduced. According to the Personnel Director, all of the material used by the information desks is public information. The job, however, does involve a substantial amount of interaction with the members of the General Assembly, with their office staffs and those of the Legislative Committees, and with lobbyists.

The Employee recently began a two-year leave of absence in order to go to school full time. She is currently attending Anne Arundel Community College in a business program. The question presented here arose when she subsequently decided to take part-time employment in the office of a registered lobbyist who is active before the General Assembly on behalf of several clients. The Employee says that she will not actually be an independent lobbyist, but will provide support services to her new employer in his legislative activities.1 She apparently does not anticipate being involved in the non-lobbying activities of his law firm. Currently she is working part time in the Baltimore Office and is working at scheduling appointments, organizing dinners and lunches, and other meetings. She says she will be working full time during the Session and will be in the Annapolis Office. She expects that she will be interacting regularly with members of the Legislature and their staff and may be discussing things with them on the lobbyist's behalf.

Article 64A, §9C, Annotated Code of Maryland, provides that positions in the State Department of Legislative Reference and in the Department of Fiscal Services are governed by Title 2 of the State Government Article, which in turn provides that staff positions in these Departments are unclassified positions subject to guidelines adopted by the Legislative Policy Committee. This Committee has adopted general personnel guidelines, which do not, however, specifically address the subject of leaves of absence. The agency's Personnel Director indicates that the legislative agencies therefore follow, as an optional matter of policy, the general principles regarding leaves of absence that are set out in Article 64A.

Leaves of absence under the State personnel rules are permitted for employees for up to 30 days based on the approval of their department head with the employee entitled to return to their position. A leave of absence for a variety of reasons, including study, is permitted for up to two years with the approval of the Secretary of Personnel, or as to legislative employees by the head of their department, in this case the Director of Legislative Reference. In this situation, though the individual's job is not held open, certain reemployment eligibility rights are retained. The person can be put on the eligible list for the classification for their position and would be high (but not necessarily at the top) of the list for the next opening in that classification.

The Personnel Director indicates that classifications for the DLR positions are unique and that the rights to return to a position are therefore significantly less than would be possible for a larger agency. An employee on leave of absence would probably be able to come back only to one of the two legislative agencies. She indicates that while this leaves certain options open as a technical matter, practically speaking the position is very unlikely to be open when the person wants to return. She says that the agency tends to fill its positions very quickly. (Also, as a practical matter, this individual is pursuing education for the purpose of advancing her options in employment and it would be unlikely that she would want to come back to the same level of position.)

An employee on leave of absence retains few continuing employee benefits. There is no compensation and no leave is earned. Health benefits may be purchased for a period of up to 6 months, but this is an option that is available to any person leaving State service. The most significant benefit to being on leave of absence rather than simply resigning is that certain rights or options as to the State retirement or pension systems are possible. This individual was employed at the DLR for 7 years and was vested in the State pension system. According to the State regulations regarding this system, creditable service can be granted for a period not to exceed 2 years to a member while on leave of absence for a variety of purposes, including study. The regulations provide that the member is to execute a form prior to being placed on leave indicating his intention to purchase creditable service prior to his retirement. Execution of this form protects the member's benefits, including death benefits, while he is on leave. The Employee apparently did execute this form.

This leave of absence was approved by the Director, based on the fact that this individual was a clerical employee. Apparently it is unlikely that such a leave would be approved for a professional employee. Persons on leave of absence do not appear on the agency's active employee list and the agency does not have any dealings with the person in the sense of expecting to call on her for any services. Moreover, it would not be anticipated that she would have any access to agency offices, materials or equipment. Agency employees are strictly advised against providing any of these resources to lobbyists, and would be advised that this is the case for the Employee, despite her status as a former colleague.

The substantive limitations of the Ethics Law apply (except for the post-employment provisions of §3-103(b)) to current officials and employees. Section 1-201(i) of the Law defines employee or State employee to include any person, other than a State or public official, employed by an executive agency or the legislative branch or in the judicial branch of the State government. The DLR Personnel Guidelines are specifically applied to permanent employees, permanent part-time employees, part-time employees, temporary employees, and contractual employees of the legislative departments. These terms are in turn defined to include individuals who "fill authorized positions" in these various categories.

In evaluating the employment status, primarily in defining whether a private employment relationship existed, we have generally found an employment relationship where the substance of the situation revealed that personal services of an employment type were being provided, without regard to the technical description of the relationship. (See, for example, Opinions No. 81-3, No. 84-28, No. 84-29, No. 85-22, No. 86-1, and No. 86-22.) In the one Opinion (No. 83-1) involving status as a State employee, a more technical approach was taken, though even in that situation, a factor in that request was that the person could still be expected to be called upon to provide services. In this situation it seems to be clear that no services are to be provided by this individual to DLR, and that the services that she did provide as an employee were primarily administrative and ministerial.2 The Employee will not appear on the rolls and will for practical purposes be viewed as a resigned employee. Given all of these circumstances, including the non-policy and non-professional nature of her former State position, we do not believe that the Ethics Law would apply to limit her private employment activities while she is in a leave of absence status, and so advise the Department and the former Employee.

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 The individual and her employer should be aware that the lobbying provisions of Title 5 of the Ethics Law could apply to her activities. We do not in this Opinion resolve this question.

2 There also appears to be little likelihood that she could be participating in her new position in matters in which she significantly participated as an employee.