88.18

OPINION NO. 88-18

An Ethics Commission Opinion has been requested concerning whether a member of the State Board of Morticians who is also employed in a County Office of Consumer Affairs may participate as a legislative witness on matters relating to the funeral industry. We conclude that participation in legislative activities by this individual on behalf of her State Board is not inconsistent with the provisions of the Public Ethics Law (Article 40A, Annotated Code of Maryland, the Ethics Law).

This request is presented by a person (the Member) who is a senior investigator in a local Office of Consumer Affairs, and is also a consumer member of the State Board of Morticians (the Board), a unit of the Department of Health and Mental Hygiene (DHMH). The Board's authority is set forth in Title 6 of the Health Occupations Article, Annotated Code of Maryland. It is established for the purpose of licensing and regulating persons or businesses that engage in funeral directing and embalming in the state. It has the authority to issue, suspend, deny and revoke licenses and may reprimand licensees. It regulates schools of mortuary science and apprenticeship programs. In addition, it enforces a variety of miscellaneous provisions and those related to prohibited practices, including provisions relating to pre-need contracts and the sale of services and merchandise in connection with them.

The Board consists of 12 members. One serves as the designee of the Secretary of DHMH. Nine are appointed by the Governor and required to be licensed morticians or funeral directors. The remaining two are also appointed by the Governor and are consumer members. The statute provides that consumer members of the board shall be members of the general public, may not have ever been a mortician, funeral director or apprentice or have participated in a business or commercial field related to the practice of mortuary science, or have a household member who has engaged in these activities. Consumer members may also not have during their service or within two years before appointment a substantial interest in an establishment regulated by the Board.

The particular situation here arose from the Member's possible involvement in legislative consideration of a bill that would have permitted the sale of insurance annuities to cover pre-need funeral arrangements as part of an insurance policy and not subject to the regulation or review of the Board (SB 411). The Bill was introduced in the 1987 Session and the Member commented on it in connection with her County duties. It was re-introduced in 1988 and her initial request to the Ethics Commission had to do directly with her testimony regarding it. We considered the request and advised on an informational interim basis that the limited activities she described could continue while the request was pending. The Member indicates that subsequently it was determined that she would not testify on the Bill.

The Member advises that the situation here does not involve the potential for her testifying on behalf of her County Office on positions opposing those of her State Board. She says that she has not had an issue where the positions have been inconsistent, and in any case would not necessarily be expected to be the Office spokesperson. Moreover, as to this particular legislative action, she advises that the plan was that she would testify on behalf of the Board in opposition to the pre-need insurance bill. The question was asked as to whether this would present a conflict of interest by virtue of the position that she holds with a local Consumer Affairs Office.

The specific issue presented here is whether the Member's participation in legislative action such as SB 411 on behalf of her State Board would be inconsistent with the employment provisions of the Ethics Law or possibly with the prestige of office provisions, based upon her other consumer-related employment responsibilities and view with the County Office of Consumer Affairs. These provisions include §3-103(A)(1)(ii) of the Law, which bars any outside employment that would impair an official's impartiality and independence of judgment. Section 3-104 of the Law further bars the use of prestige of office for one's own economic gain or that of another.

In considering the application of these provisions, we look to the nature of the individual's responsibilities and functions in their position in the State. We consider whether the activity would create issues as to the ability of the person to carry out their State responsibilities as intended. The question here is whether the Member's other consumer-related work, which is the basis for and related to her strong advocacy of consumer positions, presents the kind of outside interest that would impair her ability to function in her Board position, or reflect the existence of other interests whose economic benefit she could advance through use of her State position.

We understand that to some extent the Member's consumer advocacy positions could impact on her views as a Board Member. Agency personnel advise, however, that the Member meets the qualifications to be a consumer member on this Board, and she could be viewed as having been appointed to represent that very viewpoint. Also, we recognize that when the Member is involved as a Board member in legislative matters, the position she takes on behalf of the Board could benefit her other employer to the extent the positions are consistent. We do not believe, however, that this would be an economic benefit other than the general consumer interest for which she was apparently appointed to speak.

The agency staff person who deals with boards and commissions indicates that the statutory language establishing the consumer positions on this Board has not been interpreted to prohibit a consumer position from being filled by a person engaged as a profession in consumer advocacy. To some extent the Member's consumer activities in the County Office enhance her qualifications on the Board. Given this statutory system and its construction by the Department, we cannot conclude under the employment provisions of the Ethics Law that the Member's consumer employment is inconsistent on its face with her service on the Board, or that it would necessarily result in an impairment of impartiality as contemplated by §3-103(a)(1)(ii) of the Law. Nor do we believe that the mere fact of her county employment would give rise to an improper use of prestige if she were to engage in legislative activities on behalf of her State Board.

We therefore advise the Member that her primary employment does not in itself create a conflict of interest with her service on the Board of Morticians. Nor does it limit her ability to provide to that Board any of the regular services expected of Board members, including acting as its legislative representative if requested by the Board. She should, of course, in connection with such activity make it clear that she is authorized by the Board and does express its views. We further advise that the situation would need to be reviewed if developments in the member's County Office bring her into opposition with her State Board or otherwise impair her ability to function as a State Board member.

M. Peter Moser, Chairman
   William J. Evans
   Rev. C. Anthony Muse
   Betty B. Nelson

Date: August 2, 1988