87.24

OPINION NO. 87-24

An Opinion has been requested concerning whether a member of the Board of Registration for Professional Land Surveyors may teach a land surveyor's exam review course sponsored by the Maryland Society of Surveyors. Based on the significance of this Board's authority over the examination and licensing process, and the Member's actual or potential involvement in various aspects of this process, we advise that this private activity is not allowable while he is a member of the board.

The Board of Registration for Professional Land Surveyors (the Board) is established pursuant to Article 56, §331, Annotated Code of Maryland. It consists of six members appointed by the Governor, 2 consumers, three professional land surveyors, and one property line surveyor. It is charged with administering and enforcing the registration, examination, and ethics provisions applied to professional land surveyors and property line surveyors. In addition to its responsibility for creating and administering licensing examinations in this field, and issuing registrations, the Board also has authority to reprimand a registrant, and to suspend, revoke or refuse to renew a certificate.

The statute prohibits the practice of land surveying without being registered in accordance with its provisions, and establishes requirements for registration and certification as a professional land surveyor, land surveyor-in-training, and property line surveyor. These include certain scholastic and experience requirements, and successful completion of written examinations in the fundamentals of surveying and the principles and practice of surveying. The examinations are to be held at a time and place determined by the Board, and the "scope of the examinations and the methods of procedure for taking and grading shall be prescribed by the Board to test the applicant's ability to design, plan, and direct land surveying so as to insure the safety of life, health, and property."

The National Council of Engineering Examiners is an umbrella organization of all state licensing boards. Each member state pays dues annually and may provide representatives to assist in developing the tests. Each participating state then contracts with NCEE to purchase tests and grading services provided by it. The Executive Director of the Board advises that the Maryland Board is a member of NCEE and has participated in its work. He says that the Member has occasionally participated in NCEE regional meetings and was involved in an exam drafting committee.

The Maryland program involves four tests. There is an 8-hour national exam covering the fundamentals of surveying, and a 3-hour exam administered in the colonial states dealing with the particular metes and bounds surveying that is done in the colonial states (as opposed to the public lands surveying that is done in other states). These are both multiple choice tests developed and graded by NCEE. A third part of the exam is a 1-hour test covering Maryland law and ethics, and the final portion is a 3-hour road and storm drain problem. Parts three and four are written and graded by private local contractors selected and monitored by the Board. The contents of these tests are available to and reviewed by the Board. All of the exams are administered by staff of the Board, who are employees of the Department of Licensing and Regulation's Division of Occupational and Professional Licensing.

The exam is given twice a year and is given to applicants that have been reviewed and found to meet all the other requirements for registration. In October 1986, 32 persons took the property line exam and 6 took the professional exam; in April 1986, 28 took the property line exam and 6 took the professional exam. All four parts of the exam must be passed for a person to be licensed as professional land surveyor, and three parts must be passed to be a property line surveyor. The applications are initially reviewed by the Board. Moreover, an individual who has failed parts three or four may challenge the grading and have it reviewed. This is done directly with the contractor who writes and grades the test, and the Board has a practice of accepting the judgment of the contractor as to whether any change in the result is appropriate.

The Member indicates that he has in the past been involved in workshops developing prototypes for general kinds of questions. He says this was a few years ago and involved work on an NCEE committee that included representatives from participating states. They reviewed the types of problems that had been used before in essay type questions and developed prototype questions that could be recast as multiple choice questions. Each separate exam is then made up by the NCEE in defining the exam for a particular sitting. The Member advises that since this issue was presented to the Commission for review, he has not participated as a Board member in any matters involving the examination. Whenever any question comes up regarding the examination process or any aspect of it, he leaves the room. The Member indicates he is involved in reviewing applications to determine eligibility to sit for the exam, and participates in handling complaints, in arbitrating problems between surveyors and people complaining about the survey, and in legislative activities.

The Member was originally appointed to the Board in 1977, and his more recent reappointment was in 1985, as nominee of the Maryland Surveyors Society. The description of his background included with his nomination includes a reference to the fact that he is an instructor in the preparatory course for applicants for the professional land surveying exam. This information was not included on an Appointee Exemption Disclosure Form submitted in connection with his 1985 appointment.1 The issue presented here involves the fact that the Member is involved in teaching an exam preparation course sponsored by the Maryland Surveyors Society. The brochure describes the course as "a special crash review and preparation course for the professional land surveyor's examination prior to the next exam date." The course runs from early September through October in anticipation of an exam date in late October, and covers surveying principles and practices that are likely to be addressed in the professional exam.

The Member indicates that he has been teaching this course since 1970. He says that he uses a book that he has prepared over the years drawing on other texts and his experience, and using sample questions returned to him from his own test. The course involves review of materials that individuals should already know rather than teaching new materials. He is paid $33 per hour and teaches about three-quarters of the 70-hour course. He says that the classes tend to be about 10--12 people, though the current class is larger due to changes in the law expected in 1990. About 75 percent of the participants are preparing for the exam. There is no continuing education requirement in this field.

The Maryland Society of Surveyors is a professional association of surveyors and surveying firms. The statute provides that this association be the nominating source for professional appointments to the Board. Other than this, however, the Member advises that the Society's involvement with the Board is limited. It does not appear as an advocate in registration matters, though it may appear before the Board in legislative matters where it has proposals for which it is seeking Board support. The Society, however, also has a paid registered lobbyist, and deals directly with the legislature in advocating policy changes in the registration program. An example of recent activity between the Board and the Society involved successful efforts to modify the dual categories of licensing by eliminating future registration of the property line surveyor, effective in 1990.

The question presented here is application of a series of Commission Opinions dealing with the private activities of members of licensing Boards, particularly in the Department of Health and Mental Hygiene. These Opinions address the outside employment provisions of §3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law). Subsection (a)(1)(i) prohibits an official or employee from being employed by or having a financial interest in an entity that is under their or their agency's authority or that has contractual dealings with it. Subsection (a)(1)(ii) further bars any other employment that would impair the individual's impartiality or independence of judgment.

In our Opinion No. 87-1, we generally advised that members of licensing Boards were restricted by the §3-103(a)(1)(ii) impairment provision from serving as officers of private associations of licensees. Our Opinion No. 85-7 dealt with an individual Board member who was advised that she could not simultaneously serve on the Board and be employed by the private industry association as its government liaison. We have also considered situations where the activity at issue was teaching industry-related courses. For example, in Opinion No. 83-40, members of the Real Estate Commission were advised that they could not participate as teachers in a course being offered as part of the preparation for the real estate license examination.

In our view the impairment principles of §3-103(a)(1)(ii), as interpreted in these Opinions, would apply to bar the activity at issue here. In applying this provision, as is discussed in the cases presented above, we have generally looked at the relationship of the outside activity to the person's State responsibilities and actions to determine if it presents a situation where the individual's ability to function impartially and independently will be impacted by the private activity. The duties assigned to the board or agency have been viewed as a significant factor, and we have generally not found disqualification to be a cure of a problem under the employment provisions of the Law (see Opinions No. 86-15 and No. 81-39).

We recognize that the Member has been teaching this course for some time, and also that he has recently undertaken to excuse himself from any Board deliberations regarding the exam. We are concerned, however, that his Board has significant authority in the examination and licensing process. It is not a large board, and it would not be unreasonable for persons not familiar with the details of how it operates to conclude that he has been involved in these aspects of its work. Moreover, as a practical matter, he has been involved in developing the exams, has had some access to the questions, and is involved in reviewing the qualifications of applicants who want to take the exam. These relationships in themselves could give rise to the kind of conflict or appearance of conflict intended to be addressed by §3-103(a)(1)(ii).

Moreover, the Member's private activity is also directly related to his Board's functions, since it involves preparation of the individuals whose applications he may have reviewed for the exam that is the responsibility of his Board and is a significant factor in the registration process. Also, it constitutes an employment relationship with the Society of Surveyors. In our view this type of relationship could result in impairment under §3-103(a)(1)(ii), given the real likelihood that the organization and the Board would not always have the same goals or agree on application of the law.

Under all of these circumstances, we conclude that the continued private employment of this individual with the Maryland Society of Surveyors would be inconsistent with the outside employment prohibition of the Ethics Law, as long as he serves on the Board of Registration of Land Surveyors, and so advise the Member and the appointing authority.

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.

——————

1 This Form implements provisions in §3-103(a)(2)(iii) allowing exemptions as to conflicting interests or employment disclosed in connection with the individual's appointment. Since there was no disclosure here consistent with this provision, its possible exemption provisions are not considered here.