89.10

OPINION NO. 89-10

An advisory opinion has been requested concerning whether a Natural Resources Police Officer (the Officer) may be an owner and sell real estate as part of a private real estate company. It is our view that this individual's secondary activity is allowable as long as the situation continues to function as described and he has no overlap in dealings between his official duties and his private real estate work.

This request is presented by an Officer First Class with the Natural Resources Police (NRP), a unit of the Department of Natural Resources that is responsible to enforce State laws and regulations pertaining to commercial seafood harvesting and sport fishing, boating, waterways pollution, and wildlife conservation. The NRP conducts boating and firearms training and hunting safety education programs and its officers inspect boats and seafood processing houses and trucks, and investigate boating accidents and drownings. It is a primary search and rescue agency on State waters and is a major law enforcement presence in several remote areas of the State. Natural Resources Police Officers have all the powers conferred upon police officers of the State, and have the power to arrest and issue citations for violating any law punishable as a misdemeanor.

The Officer is assigned to the Inland Division in Dorchester County, and is primarily involved in enforcement of conservation laws, as well as hunting, fishing and some boating laws. His specific duties tend to be seasonal. In the wintertime, for example, his patrol deals mainly with hunting activities. He patrols the areas, follows up on complaints made by landowners and the general public as well as other hunters. Types of problems include hunting after hours, using illegal methods, such as hunting from the road or with lights, and trespassing violations. He may also be concerned with criminal activity observed while on patrol, such as drug and alcohol abuse. The Officer indicates that he works on the water to some extent in boats assigned for that purpose. He patrols the rivers for boating activities and investigates drownings and boating accidents. He can be involved, in addition, in enforcement of fishing laws as to both commercial and sport fishing, and may also interact with commercial hunting guides, checking to see that they and their clients conform to requirements such as bag limits and season dates.

This request relates to the Officer's private work as a real estate sales person. He indicates that he was licensed as a real estate sales agent in 1985, and received DNR approval for this activity at that time. He was affiliated at first with other realty firms, but recently he has opened his own firm with two other individuals (one a licensed real estate broker), both of whom he met in his prior real estate work. Each of the investors contributed one-third to the capitalization of the firm and each has a one-third interest. The Officer says that for all of them the income currently is commission income on individual sales. The Officer lives in Talbot County and indicates that the realty firm is also located there. He says that it concentrates on residential sales in the mid-Shore area, mostly in Talbot and Caroline Counties, with a very little in Queen Anne's and Dorchester Counties.

The Officer indicates that he is not aware of any instances where his real estate work or that of his partners has ever involved an individual that he has encountered in the context of his NRP work. He says that he does not aggressively pursue real estate business, that he lets people come to him. In his police work the Officer advises that he has limited involvement with property owners as such, though he occasionally has to deal with a trespassing complaint. Most of his work is directed more specifically to individuals engaged in hunting, fishing or other activity subject to his jurisdiction. He says that his official work is in Dorchester County and his real estate business is in Talbot and Caroline at the present time, except for a few properties in Dorchester that he owns personally. This request was presented by the Officer at the urging of his supervisors in the Natural Resources Police because of the changed circumstances resulting from his ownership interest in this business. The agency advises, however, that it has no particular situation about which it is concerned, and has not had any problems or encountered any issues in the years that the Officer has been engaged in real estate sales based on the prior approval.

This request presents issues under 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), and possibly the participation and prestige provisions of §3-101 and 3-104 of the Law. Section 3-103(a) prohibits an official or employee from being employed by or having a financial interest in an entity that is subject to his authority or that of his agency (subsection (a)(1)(i)). It further bars any other employment that would impair his impartiality or independence of judgment (subsection (a)(1)(ii)). In applying these criteria to the facts as presented here, it does not appear likely that relationships would arise between the Officer's real estate business itself and the DNR or the Natural Resources Police that would bring it within the strict prohibition of this section. Nor, based on the Officer's indication that he has not had clients with direct dealings with his agency, do we believe that this provision would apply based on an employment relationship with individual clients.

The primary question is thus whether this business activity creates the kind of inconsistent employment or potential for use of prestige that would result in its being flatly prohibited under either §§3-103(a)(1)(ii) or § 3-104, or whether it presents participation concerns that would be prohibitive. In interpreting these provisions as to particular situations, we have in the past looked to the nature of the State employment and at any possible relationships between it and the private activity to determine whether these relationships would impact on the individual's conduct of his official duties. We have considered several cases involving real estate activities (Opinions No. 80-15, No. 83-41, No. 89-4 and No. 88-8), barring the activity completely when it involved employees whose duties included regular transactions or responsibilities relating to real property and land transactions.

The Officer, as a Natural Resources Police Officer, has some duties, currently solely in Dorchester County, that involve activities relating to the land, particularly relating to trespassing incidents by hunters, and dealings with property owners who lease land for hunting purposes. In our view, however, it does not appear that these activities are significant enough that there is likely to be an overlap in the populations that he deals with in connection with his real estate work which would bring a client directly within his unit's jurisdiction, or raise issues under the more general inconsistent employment provision. We therefore conclude that the Officer's real estate work would not as presently handled be prohibited by the employment and interest prohibitions of §3-103(a)(1) of the Ethics Law.

We wish to clarify, however, that this conclusion relies significantly on the absence of any interaction between the State duties and the private activity, which in turn seems to result from the fact that there is very little overlap between the populations served in the natural resources law enforcement work and the real estate sales activity. If there were such an overlap, either because of expansion of his business into Dorchester County or if he were to transfer into the Talbot County unit of the NRP, then we believe that concerns could arise, given the particular nature of the law enforcement work done by the Officer, in part under the employment provisions, and also considering application of the nonparticipation provisions of §3-101 of the Law. This type of situation was addressed in our prior Opinion No. 81-1, which involved a Natural Resources Police Officer. In that Opinion we took account of the general and pervasive nature of the law enforcement responsibility and the potential participation problems that could result when an officer has business undertakings in an area and involving individuals over which he has significant discretionary enforcement authority. We believe that this would be an issue to be evaluated in the Officer's situation, if the circumstances change so that he would be handling real estate business within the geographical area where he works.

Thus, though we advise the Officer that the real estate business as it now functions would not be barred by the provisions of the Ethics Law, he should take care to be aware of the participation and prestige provisions of §§3-101 and 3-104 of the Law, and avoid any dealings in his private business with persons with which he has official dealings in connection with his police work. If situations presenting questions in this regard begin to arise with any frequency, either as a result of his business activities or his duty assignments, then the result of this Opinion would need to be reevaluated.

William J. Evans, Chairman
   Rev. C. Anthony Muse
   Robert C. Rice, Ph.D.
   Barbara M. Steckel

Date: September 8, 1989