87.22

OPINION NO. 87-22

A specially commissioned police officer who serves as security director for the State Income Tax building has requested an opinion as to whether he may be licensed and operate as a private detective. We advise the Requestor, based on the description of his job duties and our understanding of his proposed private detective activities, that his proposed private detective business would not be inconsistent with the Public Ethics Law (Article 40A, Annotated Code of Maryland, the Ethics Law).

The Requestor is a Special Police Officer III who works as the Director of Security for the income tax facilities of the Comptroller of the Treasury. These include the agency's headquarters building in Annapolis, as well as other facilities throughout the State. He is commissioned as a special policeman pursuant to Article 41, §4-901 et seq., Annotated Code of Maryland. Applicants for special commissions must meet certain requirements as to age, character, and reputation. Application is made to the Superintendent of the Maryland State Police, who makes an investigation and provides a recommendation to the Governor, who has the authority to issue the commission. Special police officers are charged with the protection and preservation of peace and good order on the property described in the application for the commission. They have the power of arrest on the property and may exercise the powers of any police officer on the property. The law specifically provides that each person appointed under the subtitle is "deemed to be the employee of the State, agency, governing body, school system, or business concern requesting his appointment."

A retiree of the Baltimore City Police Department, the Requestor is in charge of security at the Income Tax building in Annapolis, and describes his duties as 99% physical security. He is responsible for guarding the building, which houses significant confidential information. His duties are primarily to see that no unauthorized person enters the building. He keeps track of visitors, vendors and service personnel during the hours of 7 a.m. through 5 p.m. He mans the reception desk and makes periodic tours of the building.

Both the Requestor and his supervisors in the Office of the Comptroller indicate that he does not do any substantive investigative work in this position, as this is primarily done by the agency's fraud section. He would apparently only be involved in investigative work that related directly to the security of the building (for example, if there were a robbery or where an employee was receiving harassing phone calls). According to his immediate supervisor, the Requestor does not deal with individual taxpayers, except to provide directions within the building. As a special police officer, the Requestor does have the power to arrest, which would be likely to be an issue if someone were unruly or causing a disturbance in the building. He indicates that in the five years that he has worked in the building, however, he has never exercised these powers.

The Requestor wishes to obtain a private detective license and establish a part-time private detective business. Detective licenses are issued by the Maryland State Police Superintendent pursuant to Article 56, §543 et seq., Annotated Code of Maryland. Section 549 prohibits any person or firm from engaging in the private detective business without first obtaining a license from the Superintendent.1 This section and other provisions of Article 56 establish requirements regarding maintenance of an office, management by a supervising licensee, license qualification and bonding, employment of assistants, disclosure of information by employees or licensees, and revocation and enforcement procedures. Qualifications as to age, character, reputation and experience are also established, with service in an organized police agency being a significant qualifying criterion. (See 550 and 551.)

Relying on his police experience with the Baltimore City Police Department, the Requestor indicates that he would start out part time as a single private operation. He says that his plans are tentative right now. He advises that his marketing would be primarily in Baltimore City, though he indicates that his business would be possible anywhere in the State. He says that he has contacts (unconnected with his State position) and personally knows more people in the City and would expect to rely in the beginning on his personal contacts with attorneys in this area, probably delivering summonses. He says that he might then get into doing accident investigations or insurance or divorce matters. He does not see any particular area that he would concentrate on or avoid.

As the operator of a sole proprietorship private detective business, the Requestor would have an entity in which he has both an employment and interest relationship for purposes of the employment provisions of the Ethics Law. The strict prohibition of §3-103(a)(1)(i) of the Law would prohibit this employment and interest if the entity were subject to the authority of or regulated by his agency. Since the Requestor is employed by the Comptroller of the Treasury, and his detective license would be issued by the State Police, we do not believe that the strict prohibition would apply as a result of an authority or licensing relationship with his employer.2

We have also considered the question of whether an issue might arise if some of his clients have special relationships with the Comptroller, since we have said in prior Opinions that an employment relationship can exist if a person is providing consulting services to an individual or entity.3 For example, persons involved with the Comptroller's cigarette tax authority or alcoholic beverages responsibilities, or doing computer business with the Comptroller, could be viewed as entities under the authority of the Requestor's agency. In our view, this type of business activity and business tax relationship with the Comptroller could under certain circumstances result in the kind of employment and interest relationship intended to be addressed in subsection (a)(1)(i). The Requestor will have a sole proprietorship business, however, and therefore be in complete control of his clientele. In the absence of some evidence that he actually undertakes to represent such clients, we do not believe that this possibility should be viewed as requiring application of the strict employment and interest prohibitions of the Law.

The question would thus be whether the inconsistent employment bar of §3-103(a)(1)(ii) would limit this activity. This section complements the strict authority provision, forbidding any other employment that would impair the individual's impartiality or independence of judgment. In applying this provision we have generally looked at job duties to determine whether there is any relationship between what the person does for the State and the planned private activity that would raise questions about the person's ability to carry out his State duties impartially. Our Opinion No. 81-28, for example, was one of our early interpretations of this provision after it was enacted in 1981, and also involved a private detective license. The individual was an investigative field agent for the Motor Vehicle Administration, and the MVA had expressed some concern given the similarity in the types of work and the potential for use of his investigative tools and access to confidential information.

We concluded there that the various provisions that would deal with these types of concerns (such as the §3-104 prestige provision and the §3-107 information provision) did not apply to absolutely bar the outside activity in that situation. We further concluded in the facts present in Opinion No. 81-28 that the inconsistent employment provision would also not apply to totally bar the activity, and come to the same conclusion in the circumstances presented by this Requestor. In the situation here the individual's job duties involve primarily physical security in the income tax buildings, and are focused primarily in the Annapolis area. He does not appear to engage in investigative activities on behalf of his State employer that would be impacted by his private activities, especially since he intends to focus his private work primarily in the Baltimore area.

Moreover, supervisory personnel in the Income Tax Division have reviewed this situation and advised the Commission that the Requestor's proposed activities would not be perceived by the agency as presenting a problem in its conduct of its business or as to the Requestor's duties in particular. The agency has indicated that the only likely issue to be presented in this situation would be the Requestor's possible access to income tax records. We have been advised, however, that most employees do not have unrestricted access to these records and that agency personnel are confident steps can be taken to limit the Requestor's access to these records without impacting on his functioning in his official duties.

Under all of these circumstances, and taking into account the agency's advice regarding the impact of the Requestor's proposed private detective agency on his official duties, we advise the Requestor that the private activity as he describes it to us would not result in a violation of the employment and interest provisions of the Ethics Law. We caution, however, that there are certain constraints and that the Requestor should take care not to accept clients that are engaged in activities that bring them into special relationships with the Comptroller's office. He should also, of course, be aware of the continuing application of the participation, prestige and information provisions of 3-101, 3-104 and 3-107 of the Ethics Law.

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

Date: December 1, 1987

* Rev. John Wesley Holland was a member of the Commission and participated in the consideration and decision regarding this request. He died prior to formal issuance of the Opinion.

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1 Note that this provision does not apply to the Requestor's work for the State, since §544 specifically excludes special policemen from the requirement, as well as officers and employees of the State and other governmental entities.

2 We take note of the fact that his private detective business would be subject to the general income tax authority of his agency. We have in the past dealt very generally with issues relating to the private activities of individuals employed in agencies that have pervasive authority such as this, and in the situation here do not believe that income tax authority of the Comptroller over the entity would be sufficient, in itself, to bring this provision into play.

3 See, for example, Opinion No. 85-22 and Opinions cited therein.