90.13

OPINION NO. 90-13

An advisory opinion has been requested concerning whether a correctional officer at the Maryland Reception, Diagnostic and Classification Center (the Reception Center or the Center) may have private employment as a bail bondsman. We advise the Requestor that this activity is allowable based on the factual circumstances as they are now described by him.

The Reception Center is a correctional facility within the Division of Correction (DOC, part of the Department of Public Safety & Correctional Services, DPSC). It is located in Baltimore City and receives and processes all male inmates as they enter the prison system. The inmates are transferred to DOC management either from a local jail where they have been held for trial or they are men who have recently been free on bail while on trial or pending sentencing. Prisoners generally are at the Reception Center for classification as to their security status and where they will be assigned in the system. Some inmates at the facility may be at the Reception Center if they are on their way to or from court in Baltimore City.

Correctional officers at the Reception Center may be assigned to either the Transportation or Custody Unit. Officers, such as the Requestor, who work in the custody unit basically serve as guards who supervise inmates in the facility. They stand certain posts and have the responsibility of limiting the movement of prisoners and access to them by civilians. They control on a practical day-to-day basis what the inmate can do in accordance with agency regulations. The guards conduct inspections and searches of inmates and inmate access and work areas for drugs, weapons and other unauthorized materials, and enforce rules of conduct, security, and labor standards. They write up disciplinary actions as to prisoners, and may use physical force to subdue a prisoner if necessary.

In the criminal justice system, bail is an amount of money deposited with a criminal court where a defendant is released pending trial. A bail bond is a form of insurance where a surety undertakes to produce the accused or forfeit a fixed sum of money. Rule 4-217 of the Maryland Rules defines a surety as "a person other than the defendant who, by executing a bail bond, guarantees the appearance of the defendant". A surety insurer is "any person in the business of becoming, either directly or through an authorized agent, a surety on a bail bond for compensation". Bail bond businesses are licensed by the State Insurance Commissioner. Though the need for the bondsman to produce the defendant at trial or forfeit bail may result in some investigatory work to produce the defendant, bail bond businesses are not generally licensed by the Maryland State Police as detective agencies.

This request is presented by a correctional officer at the Reception Center who wants to engage in private employment as a bail bondsman. He had been advised by the Division of Correction based on prior Commission Opinion No. 85-6 that this employment would not be permissible. Opinion No. 85-6 involved a DOC classification counselor who owned a bail bonding business. We concluded in that Opinion that the employment activity constituted inconsistent employment under the Ethics Law, since the private activity involved significant dealings with the same population (and its representatives) with which the employee would interact in her official duties. The Requestor believes that his situation is distinguishable, however, and has pursued a formal advisory opinion as to his individual circumstances. We agree with the Requestor.

In particular, the Requestor maintains that his position as a custodial corrections officer is primarily ministerial and that he has very little discretion in the conduct of his duties. His job, he says, involves custody and security but very little interaction with inmates. He states that he is not an advisor or counselor, makes no parole decisions or recommendations, and has no access to inmate records. Moreover, Requestor describes his private work as ministerial, also, particularly noting that unlike the prior Opinion, he is not an owner but an employee only. He is paid a salary (not commission) and has no economic interest in the business generally or in particular bond transactions. He says also that his interaction is not with a defendant but with family or others putting up collateral for a bond. He advises that neither he nor his private employer have a personal interest or relationship in the defendant even if the defendant does not appear at trial, because it is just a matter of claiming the collateral put up by someone else. Also, the bond transaction is a past transaction as to inmates within his official authority, as all are incarcerated after a guilty verdict when bond is no longer a factor in a case.

The agency personnel indicate that the correctional officer spends the most time of any correctional personnel with the inmate and has the obligation to protect inmates from each other and to protect guards from the inmates. The correctional officer controls the inmates' movements and activities within the facility and is the person on the spot to enforce the system's rules and regulations.

This request involves application of the outside employment provisions of the Public Ethics Law (Article 40A, Annotated Code of Maryland, the Ethics Law). Section 3-103(a) of the Law prohibits an employee from being employed by or having an interest in an entity that contracts with or is under the authority of his agency (subsection (a)(1)(i)), and from having any other employment relationship that would impair his impartiality or independence of judgment (subsection (a)(1)(ii)). Bail bond businesses' primary interface with the State government seems to be with the courts and with the State Insurance Commissioner, and they do not appear to contract with or be regulated by either DOC or the DPSC. There would thus appear to be no issues regarding application of the strict prohibition of subsection (a)(1)(i), and the question is therefore whether the more general impairment provision of subsection (a)(1)(ii) would apply to bar or otherwise limit the Requestor's proposed employment.

In interpreting the impairment provision of the Law we have generally viewed it as a complement to the strict provision, designed to deal with situations where there are no contractual or regulatory relationships, but where the circumstances raise clear and serious concerns about the ability of an individual to engage in the private activity or affiliation and continue to perform his State duties with impartiality and independence of judgment. We have therefore in applying this provision to particular circumstances evaluated the actual circumstances of an individual's State duties and the proposed private activity to determine if there is any relationship between the two that suggests that the private work would impact on his performance of his official duties.

Based on applying these principles to the facts presented here, the Requestor may therefore engage in the bonding employment he describes. This advice would apply only as long as no situations develop where a prior bail bonding relationship becomes an issue or a factor in his manner of dealing with an inmate subject to his authority as a correctional officer, and as long as he has no dealings with inmates or their families or associates that can be viewed as recommending, marketing or advertising his availability as a bondsman. We also note that if the agency believes that the particular administrative and substantive factors regarding these relationships require agency rules, §1-103 of the Law specifically provides that agency regulations may be applied that are more restrictive than the Ethics Law. We conclude as a matter of Law that the Requestor would not be impaired in his State duties by his bail bond work. We therefore advise that this employment is not prohibited by the employment provisions of the Ethics Law.

William J. Evans, Chairman
    Mark C Medairy, Jr.
    Robert C. Rice, Ph.D.
   Mary M. Thompson

Date: September 19, 1990