89.12

OPINION NO. 89-12

An opinion request has been received regarding whether a State Police Trooper assigned to the Truck Enforcement Division may have secondary employment as a truck transport driver for a local propane gas distributor. Taking into account the Trooper's duties and the circumstances of his private employment, we advise that this activity would be barred by the employment provisions of §3-103(a) of the Public Ethics Law, and that an exception cannot be applied to overcome this bar.

This request is presented by the Maryland State Police (MSP), and involves the secondary employment of a Trooper who has been an officer with the State Police for over 10 years. The Trooper worked as a road trooper assigned to the Salisbury Barrack prior to March 1989, and was assigned to the Truck Enforcement Division in March as a result of a request for transfer that he put in about three years ago. The Truck Enforcement Division (TED or the Division) is part of MSP's Special Operations Bureau, and the Division Commander reports directly to the Bureau Chief. Its mandate is to enforce the weight laws as to trucks traveling on Maryland highways and to enforce any commercial vehicle violations.

The Division is the only entity in the State that weighs trucks. It does inspections for trucks also as to width, height and length, and can do safety inspections and general equipment reviews as to lights, brakes, proper licensing, and registration. There are four sergeants who have responsibility within specified geographical areas. They supervise the troopers at the scale houses within their area and also the roving weight crews that enforce the truck laws on highways without scale houses. The roving crews include at least one supervising trooper and other troopers, truck patrolmen or cadets. Approximately 40 of the 50 troopers in the Division are assigned to roving crews. The Trooper is a supervising trooper in a roving crew assigned to the Routes 50 and 301 areas of the Division's Eastern Section.

The regulation of the use of highways and vehicles is a shared responsibility between the MSP, the Motor Vehicle Administration, and the Highway Administration. For example, the Highway Administration has the authority to issue certain special permits, and the MVA has driver license and vehicle titling and registration authority. Enforcement of these requirements, however, is significantly assigned to the Maryland State Police. This is particularly true as to enforcement of weight and other controls relating to commercial vehicles. The weight limits are set forth in detail in Title 24 of the Transportation Article of the Annotated Code. Section 24-111.2 provides for the establishment of weighing and measuring stations and §24-111 provides that if a "police officer has reason to believe that the size or weight of a vehicle being driven on a highway violates *the* subtitle, the police officer may require the driver of the vehicle to stop and submit the vehicle to a measurement or weighing." The weighing may be done with portable or stationary scales, and each roving trooper carries a set of scales in his vehicle. Section 24-113 provides for the issuance by the SHA and the MSP of rules and regulations relating to the movement of oversize and overweight vehicles, and establishing fees. The Department of Public Safety and Correctional Services has issued regulations relating to the weight requirements, primarily defining the weighing process and equipment.

As a roving trooper in the Truck Enforcement Division, the Trooper is involved directly and specifically in the enforcement of these provisions of the Code. He works in the upper Eastern Shore area around Routes 50 and 301 and smaller routes such as 16, 309 and 404. He supervises two cadets, and basically says that his job involves patrolling in his vehicle and looking at trucks. Both he and one of TED's supervising Lieutenants indicate that the "reason to believe" standard to stop a truck is significantly less stringent than what is required to stop a passenger vehicle. The Trooper says that after doing this for a while a trooper can usually spot an overweight vehicle because of the nature of the load, the speed, the way the tires look, or because a particular company is known for a tendency to overload its vehicles.

When a vehicle has been stopped, the trooper would check the license, registration, load, equipment, log book, shipping-papers, fire extinguisher, and any other general safety equipment or operating information. The officer has the authority to write a ticket to the driver of the vehicle. The statute provides, depending on the nature of the citation, for the ability of the driver to proceed to his destination. If the overload is significant, if it is a repeat violation, or if the violation is for serious equipment or other deficiency, however, the officer has the authority to prohibit the driver from moving the vehicle until the problem is corrected. The law also provides for fines and penalties, which in the case of overweight vehicles can be substantial. The citations are issued to the drivers, though a company can become involved if it continues to violate and if its drivers fail to pay their fines or otherwise respond to the requirements of the law and the officers.

The Trooper has worked since October 1987 for a small liquid propane gas distributor located in Salisbury, Maryland (the Company). At the time he began his employment with the company, he was a road trooper assigned to the Salisbury Barrack, and his employment was approved through the MSP secondary employment review procedure. The Company's business involves the operation of two 5-axle tractor trailer transports between its Salisbury plant and its suppliers in Delaware City, Delaware and Marcus Hook, Pennsylvania. The transports are driven to these locations where they load the gas. They bring it back to Salisbury where it is off-loaded to large storage tanks, from which it is loaded to smaller 2-axle trucks for retail delivery to user patrons.

The Trooper was one of the Company's four part-time drivers whose job is to operate the large transport trucks. Though there have in the past been infrequent trips to Federalsburg on Maryland's Eastern Shore, according to the Trooper, this trip is straight up U.S. Route 13 and back. It takes him by the MSP scale house on Route 13, but he says does not involve his traveling on any area of the highway that he is currently responsible to patrol. Nor, he says, does the company generally do retail business in his current patrol area. The smaller delivery trucks are therefore concentrated in the Delmarva area and the lower Eastern Shore. He does, however, as a law enforcement officer have continuing duties when he is not on duty and the Company and its vehicles operate in the area where he lives. Also the Company's regular operations are within an area covered by his colleagues.

At the time of his transfer to the Division the Trooper disclosed his part-time employment with the Company. The Division's management view was that this would present a conflict of interest. Though it is not clear whether the agency's secondary employment provisions would directly apply to this relationship, the agency takes the position that this employment would present a conflict, in view of the Trooper's access to confidential information regarding scale house operation, and also the appearance problems that would impact on the credibility of the unit's enforcement program if its troopers were permitted to have private employment with trucking companies. This is also the position taken informally by the ethics contact for the DPSC, the agency's Deputy Secretary.

This request presents issues under the outside employment prohibitions in §3-103(a) of the Ethics Law. This section prohibits an official or employee from being employed by an entity that is subject to his authority or that of his agency (subsection (a)(1)(i)), and from having any other employment that would impair his impartiality or independence of judgment (subsection (a)(1)(ii)). Though the Company is not directly licensed or regulated by the MSP as set forth in its secondary employment guidelines, it is our view that it is clearly under the agency's authority as that term is more broadly understood in §3-103(a)(1)(i). We recognize that law enforcement authority is broad and more or less universally applicable in many situations where a Trooper's private employer would not be seen as within the agency's authority. This is not a generalized law enforcement situation, however. The Trooper here works in a specialized Division whose efforts are directed particularly at a defined population--truckers and operators of commercial vehicles.

Under these circumstances we believe that to conclude that the Company is not under his agency's authority would be to ignore the reality of the situation. We therefore conclude that this employment is within the prohibition of §3-103(a)(1()(i) and is barred unless an exception is permitted pursuant to the exception language in §3-103(a)(1). Under this language the prohibition applies except where, pursuant to Commission regulations, the employment does not present a conflict of interest or the appearance of a conflict. The purpose is to permit private employment even where there is an authority relationship, where the relationships between the outside affiliation and the official duties or agency program are sufficiently remote that a conflict of interest or appearance of conflict is unlikely.

The regulatory criteria (COMAR 19A.02.01) consider the employee's duties and location in the agency and the possible impact on the private entity, and also evaluate the nature of the private activities and how they relate to the agency program. In particular, they consider whether the individual is in the agency unit that exercises authority over the private employer, and also whether the individual would be responsible in the private capacity for ensuring compliance with agency requirements. Consideration is also given to the general circumstances and the question of appearance of conflict, as well as the agency's position regarding the situation.

In our view the Trooper's situation raises several issues under these criteria, given his employment in the unit that has significant and specialized authority over the Company, and also since he is directly involved with the Company's compliance with the weight laws (as enforced by his Division) in his driving activity along Route 13. Also, his private activities are directly subject to the actions of his colleagues, as are all of the driving activities of the Company and his fellow drivers, and he also lives in the area where the company operates. Moreover, though we do not impugn the Trooper's integrity or suggest that he would abuse his access to confidential agency enforcement information, we share the appearance concerns expressed by the agency in this regard, as well as its concern about the credibility of its enforcement program if its truck enforcement troopers were, as a general matter, permitted to be employed by commercial trucking operations directly within the jurisdiction of their unit.

Under all of these circumstances we are unable to conclude that the private and official relationships here are sufficiently remote to justify the application of an exception in this situation. We therefore advise the Trooper and the agency that his employment with the Company is within the restriction of §3-103(a)(1)(i), and that an exception cannot be applied to permit it to continue.1

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

Date: September 8, 1989

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1 Since we conclude that the strict language of subsection (a)(1)(i) controls this situation, we do not make a finding under the impairment provision in subsection (a)(1)(ii), or the prestige and information provisions of §§3-104 and 3-107. We note, however, that many of the factors considered under the exception regulations are relevant to application of these provisions to a particular situation, as they address the relationships of the private and the official duties to determine whether they raise appearance concerns or otherwise suggest the likelihood of a conflict of interest.