89.15

OPINION NO. 89-15

An advisory opinion has been requested as to whether and how the Public Ethics Law (Article 40A, Annotated Code of Maryland, the Ethics Law) applies to a Maryland Racing Commission veterinarian whose spouse is an attorney who handles some cases before the Racing Commission. We advise the Requestor and the agency that the provisions of the Ethics Law do not flatly prohibit the existence of this relationship. Several sections, however, do establish limits and constraints on the individuals' conduct that must be strictly followed.

The Maryland Racing Commission (MRC or the Commission) is established pursuant to Article 78B of the Annotated Code of Maryland as a unit within the Department of Licensing and Regulation. Under the provisions of this title, the MRC has significant authority and control over the conduct of racing in the State. All persons who are engaged in the racing activity must be licensed by the MRC, including tracks, horse owners and trainers, jockeys, veterinarians on the track and any other person who has activities on the tracks. The Commission awards racing dates, defines all betting rules and requirements, and establishes and enforces requirements regarding the use of drugs on the horses, as well as the care and treatment of the animals.

Officials employed by the Commission have substantial authority acting on its behalf to carry out the regulation of the racing activity on an on-going basis. Agency veterinarians have the authority to inspect the animals and to determine whether the horse is fit to race. The MRC veterinarians at the tracks are also responsible for evaluating animals to determine participation in the bleeder program. Under this program a horse would be permitted to race, under certain defined conditions and restrictions, using the drug Lasix, if it has experienced bleeding as a result of physical activity. Commission veterinarians are also involved, in a variety of ways, with specimen testing of animals undertaken to ensure compliance with the requirements limiting the use of drugs with animals. Where a specimen tests positive for a prohibited or limited drug, the track officials have authority to take action, including disqualification of the animal from the race, redistribution of purse money and sanctions such as fines or penalties against the trainer or owner. These actions are initially determined by a hearing before the agency staff at the track, which can in turn be appealed to the MRC for a hearing de novo.

The Requestor works as a veterinarian at the standardbred tracks, and her primary responsibility is to visually check horses for fitness to run, and to manage the bleeder program. Also, her current assignment involves her actually drawing blood on horses on a race night on only one night per week. She says that drawing blood involves the vet in the initial labeling of the specimen, but once the sample is split and placed in the detention barn or sent to the lab the vet is not a part of the process. A veterinarian would apparently testify at a Commission hearing only if the initial collection and labeling of the sample were an issue. The Requestor and Commission staff agree that she has never had occasion to testify in a positive drug proceeding.

The issue presented in this request arises from the fact that Requestor's spouse is an attorney who handles some cases before the MRC on behalf of owners and trainers who have been sanctioned as a result of drug use. We are advised that the Requestor has never been involved as a track vet in any cases handled by her spouse, and she maintains that her doing this is unlikely given the nature of her duties at the track. The agency is concerned partly about the potential for this kind of direct conflict, but also more generally about other potential issues resulting from the availability of information from the Requestor and through the fact that she works closely in her track duties with veterinarians and trainers who are or could become her spouse's clients.

The Requestor recognizes that she does know all of the vets engaged in this activity, but advises that she does not discuss her work or track situations with her spouse. She indicates that given her current duties she is unlikely to have information that would relate to drug test results or otherwise be useful to her spouse. She also advises that she would not in any way refer potential clients to her husband or discuss with anyone the possibility of his serving as attorney for persons involved in racing. Her spouse further advises that he acquires his clients and information through private veterinarians that work with breeders and trainers, and also indicates that he would withdraw from any case should developments indicate that his spouse would be a witness.

Section 3-103(a) of the Ethics Law establishes outside employment and interest prohibitions regarding entities that have regulatory or contractual relationships with an individual's agency, as well as prohibitions against employment that would impair one's impartiality or independence of judgment. These limitations, however, apply directly only to employees and officials. We have not as a general matter attributed employment and interests of an individual's spouse to the employee for purposes of applying this section, particularly where the business is a profession limited to licensed practitioners such as lawyers. (See, for example, Opinions No. 80-17 and No. 82-50.) Applying these principles to the facts of this situation, we do not believe that they require attribution of the spouse's employment and interest in his law practice to the Requestor, and therefore conclude that these strict employment provisions would not apply here.

The remaining issues here are application of the participation, prestige and information provisions of §§3-101, 3-104 and 3-107 of the Ethics Law. These provisions are limitations that we have generally not applied to flatly prohibit employment or other relationships. Rather, they have been interpreted in the context of particular factual circumstances to apply as restrictions on the conduct of a person in their employment, recognizing that there are allowable private relationships that create potential issues under these provisions.

Section 3-101, for example, prohibits officials and employees from participating in a nonministerial way in matters in which they or certain relatives (including spouses) have an interest or in any matter which involves as a party an entity with which the individual or the spouse is employed. In the specific situation presented here there appears to have been no incident where the Requestor has participated or would have been expected to participate where her spouse was involved as an attorney representing a party before the MRC. Section 3-101 would prohibit such participation. To ensure compliance with this provision, careful monitoring will be required to make sure that the Requestor is not assigned to activities involving horses owned or trained by clients of her spouse. Should situations arise in the future where her participation is necessary or where the prohibition creates substantial functional problems for the agency, then consideration of whether this section could result in any absolute prohibition would be necessary.1

Sections 3-104 and 3-107 are restrictions on an individual's conduct that are designed to ensure that employees and officials do not use their official positions and access to official information for their own benefit or that of another. Section 3-104 bars the use of prestige of office for the employee's own personal gain or that of another, and §3-107 prohibits use of official information not otherwise available for private economic purposes. These provisions have also been applied by the Ethics Commission as prospective limitations that do not necessarily absolutely bar a relationship or activity. It is usually assumed in the absence of any specific indication to the contrary, that persons will be aware of these limitations and conduct their activities accordingly.

It is our view that these provisions of the Law apply as constraints in the situation here. The employment and interest prohibitions do not apply to flatly bar the Requestor's continued service as a veterinarian, even though her spouse handles cases before the Commission. Nor do the other provisions of the Law, on their face, present such clear and actual conflicts in this relationship to bar her employment completely. The provisions do, however, establish significant constraints, and require both the Requestor and her spouse to exercise particular care to ensure that her spouse does not in any way have the opportunity to use information or otherwise acquire any advantage for himself or his clients from his spouse's position in the agency.

Additionally, the Requestor must use the utmost caution not to have any discussions with her spouse regarding racing matters, or engage in other activities that could be construed as involving referral of a racing-related client to her spouse. The Requestor and her spouse should also be aware, consistent with the discussion at the Ethics Commission consideration of this request, that our approach to this situation reflects the understanding that her spouse would withdraw from any case where her testimony would be required in a racing matter. Any specific factual circumstances that reflect a failure to function within the constraints discussed in this Opinion would, of course, be matters for consideration by the Ethics Commission in the context of the enforcement provisions of the Ethics Law.2

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

Date: December 15, 1989

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See Opinion No. 86-20 for an example of a situation where the application of § 3-101 was so significant that the relationship was prohibited.

The Requestor, her spouse, and the agency should be aware that this Opinion does not in any way address provisions of the Lawyers' Rules of Professional Conduct, the State racing law, or State management or personnel issues.