An opinion has been requested by several officers in the Maryland State Police, a unit in the Department of Public Safety and Correctional Services (DPSC), regarding whether they may establish a private business offering training programs to commissioned police and correctional officers. Based on the status of their respective situations as they are currently described, and our understanding as to how the officers intend to operate the business, we advise that the undertaking is not prohibited by the Ethics Law, as long as training is not provided to fellow MSP officers or other DPSC employees, and the officers take care to remain within the constraints as set forth in this Opinion.
This request was originally presented to the Maryland State Police (MSP) for review in the context of its secondary employment regulations, and was subsequently referred to the Ethics Commission for consideration under the provisions of the Public Ethics Law (Article 40A, Annotated Code of Maryland, the Ethics Law).1 It involves four officers who have established a private business called A Sudden Impact, for the purpose of providing intensive instruction in police officer survival. The requesters include: a Corporal who is currently a Road Supervisor assigned to a county Barrack (and who has been an officer survival training instructor at the State Police Training Academy), two Troopers assigned to two local Barracks as road patrol officers, and a Trooper who is assigned to Internal Affairs, where he is involved in administrative and criminal investigations involving officers in the Division of Correction and inmates in the prison system.
These four are the sole owners of the business. It is planned that all four will participate in the instruction and other aspects of each presentation of the course, a two-day seminar on police survival training tactics. The course would include lectures, tapes, slides and practical demonstrations. It will cost $60 and would be held in locations throughout the State. The requesters indicate that they would plan to establish a course schedule and acquire rental or other space that may be available to them. They would use their own equipment and materials that they have generated themselves, as well as written material and tapes being used with the permission of the original developers. The course will be marketed by use of a flyer and other mailings, relying on a directory of all the police departments and law enforcement entities in the State, as well as contacts to staff and managers in some law enforcement agencies.
A decision has been made not to submit the program for certification to the Maryland Police Training Commission (MPTC), and the requesters indicate that they will not market their program as one that would qualify as official continuing education training. They see it as simply filling a need, offering intensive training in an important subject at a price and convenience where it would be available to officers at their own expense. It is anticipated that all fees would be paid individually and directly by the participants. The requesters indicate that they would undertake this marketing and all other activities in connection with A Sudden Impact solely on their own time and without any use of MSP time, equipment or materials. All the dates set for the courses would be cleared as vacation or off-duty time with their respective supervisors, with the understanding that they would during the course continue to be available as needed for call-out.
The requesters do not now have any supervisory relationships with each other, though this situation could change based on agency assignments, promotions or other factors not necessarily within the requesters' control. They know each other through their joint MSP employment and informal friendship and got together on this project through a common general interest in police survival tactics. On their own time and at their own expense they all took the course in officer survival offered by a private organization in Pennsylvania. In addition to this course, all of the requesters have completed the entry-level officer training program at the Police Training Academy, and have taken other in-service training courses in the annual 18-hour requirement for lower ranking officers. The three Troopers are also certified by the Maryland Police Training Commission as associate recruit level and in-service instructors, and, as noted, the Corporal has been an officer survival instructor at the Police Training Academy. Some have also attended as part of their MSP training an FBI seminar offered at Catonsville Community College on the subject of police killings. Though they indicate that their undertaking is based more on their individual and private efforts, their status as certified instructors is identified on their flyer.
Training requirements for State police and correctional officers are defined by the Maryland Police and Correctional Training Commission in accordance with statute. State Police Training Academy entry-level and in-service training programs both include units on officer survival. The required 18 hours per year of in-service training is offered by the Academy without additional cost or payment by the officer. Officer Survival constitutes 5 hours of the 18 and is a mandated requirement. The agency's view is therefore that the course being offered by A Sudden Impact would not likely be a course that would be attended by MSP officers as part of their official training program, or be approved for reimbursement or satisfaction of an MSP training requirement. While the MSP Commander in charge of training has expressed the view that this type of program might be a resource for local police personnel, he does not believe that it would be a factor for MSP officers.
Moreover, the Department, through a representative of the Secretary, has expressed some concern if officers were to be providing training to agency commissioned employees. This is in part because they would necessarily be interacting with students in a private business who are also their colleagues in their official duties, or, as to the Trooper assigned to Internal Affairs, with students who could be subject to or otherwise involved in an investigation. In these circumstances, it could be difficult for these individuals' positions as MSP officers not to become a factor in their marketing their business. Also, despite their genuine attempt to ensure there is no recruitment or other business activity during on-duty hours, this could be something very difficult for them to control in the day-to-day contact with fellow officers who are also potential private customers.
This request presents issues primarily under the outside employment provisions of §3-103(a) of the Ethics Law, as well as the prestige and information provisions of §§3-104 and 3-107. Section 3-103(a) prohibits officials and employees from being employed by or having a financial interest in an entity that is subject to the authority of their agency or has contractual dealings with it (subsection (a)(1)(i)). It further bars any other employment relationship that would impair the individual's impartiality or independence of judgment (subsection (a)(1)(ii)). Assuming that the facts are and continue to be as described, since A Sudden Impact will not be providing courses pursuant to MSP contract and will not be certified by or otherwise under the authority of MSP or the DPSC, the strict employment and interest prohibition of §3-103(a)(1)(i) of the Ethics Law would not apply. The situation does, however, present issues under the subsection (a)(1)(ii) impairment provision and the prestige and information provisions of §§3-104 and 3-107.
This Commission has in several prior opinions considered application of these provisions of the Law in the context of outside consulting activities that are similar to those being considered by these requesters. The approach in these cases has been to identify any relationships between the official and private activities that would suggest that official duties could be impacted or that official position could be used in connection with the private work. In Opinion No. 86-14 we discussed several factors that might be considered to determine whether an activity should be allowed. These include, for example: under §3-103(a)(1)(ii), whether the activity is out-of-State, whether it involves subject matter related to the employee's official duties, whether it is something that might be expected to be done as part of the person's job, and whether it involves individuals or entities with which the employees would be expected to interact in their official duties.
Factors under the prestige provision of § 3-104 include consideration of how the employment or business under it is expected to be acquired, whether the activity has been or would be expected to be part of the person's official duties, how the training and expertise related to the activity are related to State duties, whether the activity involves efforts directly arising as a result of work performance or contacts made in the State job, whether any aspect of the State job would be impacted by the activity, and whether the outside employer or client would feel pressured or perceive an advantage in State dealings by hiring the State employee. (See also Opinions No. 86-18, No. 88-10, and No. 89-1)
The requesters have advised that in planning for A Sudden Impact, they have considered as potential participants fellow MSP officers, county and local law enforcement personnel, Division of Correction personnel, persons in special police services, and federal law enforcement officers. As noted, the Department here has expressed some concerns if the private training is offered to MSP officers and other DPSC employees. The Ethics Commission has in the past considered situations where an employee's private business or employment involved sale of services to fellow employees. We have both in opinions and enforcement matters sought to limit the existence of private economic relationships that could interfere with relationships with other employees or create a significant potential for the handling of private business on State time. In Opinion No. 85-27, for example, a Division of Correction employee was advised that he could not in his private insurance business market policies to fellow employees in correctional facilities where he worked and was a supervisor.
In applying these principles to the circumstances presented by these requesters, we believe that there are some serious concerns presented if A Sudden Impact courses are to be offered to officers in the DPSC, including MSP officers as well as those of the Division of Correction. This activity involves subject matter of interest and concern to the agency and taught at the Academy in both entry-level and in-service areas. To the extent that MSP officers are potential attendees, it would involve marketing to fellow employees and to managers within the agency, and could also involve negotiating with agency on-site personnel for use of space to present the course. Additional issues could also arise where one of the requesters has supervisory duties, or as to the Trooper whose Internal Affairs functions result in particularly sensitive relationships with correctional officers.
Also, it is difficult as a practical matter to see how the requesters can control the situation to ensure that there are no discussions about the course in the context of their official duties, or how they could avoid their State position and expertise being a factor in their marketing and implementing the course. Taking into account these concerns, as well as those expressed by the Department, we believe that the impairment and prestige provisions of the Law as they have been interpreted in prior opinions must be applied in this situation to prohibit a private training business by these MSP officers that is marketed to or includes as participants either officers or employees of the MSP or of other units within the DPSC, including the Division of Correction.
We believe, however, that it could be possible for the requesters to establish this business to provide survival training that excludes DPSC officers and employees. We recognize that there is some subject matter relationship to their State work, that some of their training has been in connection with their State positions, and that there are possible relationships between the DPSC and MSP with other law enforcement agencies. The requesters indicate, however, that they have received significant training and developed skills and materials in this endeavor outside of their MSP positions. They also advise that they have been very careful not to engage in any activities relating to A Sudden Impact while on duty. They have established a business office with stationary, uniforms, and other materials that do not rely on their MSP position, and indicate that they have not presented themselves to any person with whom they have discussed this project as officers of the MSP. Their recruitment information has come from public materials and mailing lists of Maryland law enforcement agencies, rather than any special agency sources.
We thus advise the requesters that an undertaking that excludes fellow MSP officers or DPSC employees would be allowable under the Ethics Law, provided that it is conducted in a way that minimizes any relationships or contacts related to their MSP duties and positions, and, more specifically, that it meets the following constraints:
1) No MSP time, vehicles, equipment, uniforms or other materials may be used in connection with the private activity.
2) The individual officers may not use their State position in implementing A Sudden Impact's training program. For example, they should avoid personal contacts, either in marketing, arranging space, or otherwise, that involve their dealing with management officials in other law enforcement organizations where they have regular interaction in connection with their MSP assignments.
3) Any written materials, either as a marketing matter or in the context of the training, should be clear that the program is not approved by the MSP or the MPTC, and, though general police officer status and background training may be identified as credentials, training certification by the MPTC should not be included.
4) The officers should continue to take care to avoid pursuit of A Sudden Impact business while on MSP duty and to ensure that any leave time or other absence from duty in connection with the private training work is handled within agency procedures and requirements.
5) The requesters in their MSP positions may not participate in any matter relating to A Sudden Impact or relating to any employee or owner of the private business, or use or acquire agency confidential information in recruitment or marketing.
In our view strict adherence to these constraints is necessary to avoid any suggestion of a relationship between the official status and responsibilities of these officers and their private business. Also, they should be aware that this discussion is based on the current duties, relationships and controls in place. We have consistently said that agencies should not be placed in difficult administrative situations in managing their personnel resources in order to accommodate the private economic activities of employees. The requesters should therefore understand that if new assignments or duties change these relationships or make the controls impossible, continued involvement in the business may need to be reevaluated.
William J. Evans, Chairman
Mark C. Medairy, Jr.
Mary M. Thompson
Date: May 22, 1991
1 This Opinion addresses issues presented by application to this situation of the Ethics Law. We do not interpret or apply the secondary employment provisions of the MSP, nor should our determination that an activity is allowed under the Ethics Law be viewed as limiting the MSP in interpretation of agency regulations. (See § 1-102 of the Law)