An opinion has been requested by the Assistant Commissioner for Field Services of the Division of Correction (DOC) as to whether he may have private employment with Metropolitan International Corporation, a security services corporation that is licensed by the Maryland State Police. We advise that based on the current facts an exception may be applied to allow this activity, as long as the private employer does not have any operational dealings with the individual's agency or otherwise become involved with his Department (Public Safety and Correctional Services, DPSC) or the Division of Correction.

This request is presented by a recent Maryland State Police retiree who is now serving with the Division of Correction as its Assistant Commissioner for Field Services. The Division is a unit within the DPSC, a cabinet-level department having broad responsibilities in the area of public safety. Other units within the Department include the State Police, the State Fire Marshal, the Division of Parole and Probation, the Handgun Permit Board and the Handgun Roster Board. The Division of Correction is responsible for planning, establishing and directing the administration of State correctional facilities. It also has financing and approval responsibilities regarding regional detention centers in the counties, as well as Community Adult Rehabilitation Centers. The Division is managed by a Commissioner of Correction, and there are two Assistant Commissioners, one responsible for administration and the other for field services. The Requestor indicates that his duties as Assistant Commissioner for Field Services include food services, social services, education, classification, canine operations, internal investigation, medical services, volunteers and chaplain services, Mutual Agreement Programs (MAP, a program related to the parole function), internal hearing officers, and management audit and analysis.

This request relates to the Requestor's interest in undertaking private consulting work with Metropolitan International Corporation (Metropolitan). This is a corporation headquartered in and doing business in Maryland as well as other states and many countries throughout the world. It is primarily involved in provision of training and consulting services in the security area to private businesses, with a concentration on consulting, particularly to international shipowners, on issues relating to seaport security and security on board ships. Given this focus on the private security business, Metropolitan apparently has no involvement with prisons or with any public safety agencies at the State or local level, and no contracts or business dealings with DPSC or its units or local units involved with Departmental activities. Nor, according to the company's Director of Operations, does it have clients that are involved with corrections, either as attorneys or others affiliated with inmates or as suppliers of services to correctional facilities. Apparently the entity's only involvement with the Requestor's Department is that, as a security guard agency, Metropolitan is licensed by the Maryland State Police, which has responsibility for licensing and regulating private detective, investigating and security guard entities.

The Requestor's work with Metropolitan would be entirely in the international area and would not involve any activities in the State of Maryland. He advises that he retired after 30 years of service with the State Police, where he was involved with narcotics enforcement for 15 years, and subsequently was in charge of police operations in the Port of Baltimore. In connection with this work he developed expertise and a reputation in the area of maritime security. According to both the Requestor and company representatives, he had not had any official dealings with the entity in connection with his MSP work, and had never been involved with the MSP's licensing dealings with the entity. Metropolitan staff indicate that it has not had any issues or problems arise in the context of its licensing relationship with DPSC.

The Requestor would like to undertake a part-time consulting position with Metropolitan, in which he would provide it with training assistance, do security studies and undertake general consulting activities in the security area, but only in contexts outside of the United States. He indicates that he discussed this with the Secretary of the Department and the agency's counsel at the time he was being considered for the Assistant Commissioner position. We are also advised by the Deputy Secretary, who is the agency ethics representative, that he has reviewed the situation and concurs in the view that this would not present an ethics problem as long as the Requestor's work is all out-of-State, and as long as Metropolitan is not involved with any of his duties in-State.

This request raises issues under the outside employment prohibitions of § 3-103(a) of the Public Ethics Law (Article 40A, § 3-103(a), Annotated Code of Maryland, the Ethics Law), and particularly the exception provisions as implemented in Ethics Commission regulations. This section prohibits an official or employee from being employed by an entity that is subject to the authority of his agency (subsection (a)(1)(i)). The DOC and MSP are both units within the Department of Public Safety and Correctional Services. Since Metropolitan is subject to the authority of the MSP, the Requestor's employment with it would come within this prohibition and be barred unless an exception can be applied.

Pursuant to §3-103(a), 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.

We have evaluated the Requestor's circumstances in view of these criteria. Based on his current duties, and given the understanding of his proposed activities with Metropolitan, there would appear to be few issues. The Requestor's DOC duties do not involve him with the Department's regulatory dealings with Metropolitan, and it does not appear that he would have any duties for the company that would involve him on its behalf in these matters. Moreover, it does not appear that the Requestor's affiliation with Metropolitan would involve his having dealings with any correctional activities or with private clients that would have correctional or other dealings with the Department.

Under all of these circumstances, including the fact that Departmental managers do not believe this employment would present a conflict or appearance of conflict, we conclude that an exception can be allowed to permit this activity. We recognize, of course, that the Requestor's private work could involve him with shipping lines that may enter the Port of Baltimore and interact with MSP. Should he be working with a private client that has such interaction where a problem is presented, this situation would have to be evaluated. Also, if the nature of the company's activity in Maryland (particularly as it relates to State government) should change, further evaluation would be appropriate. Based on the facts as they currently are described, however, we believe that the statutory criteria for allowing an exception have been satisfied in this situation, and so advise the Requestor and his agency.

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

Date: January 11, 1990