92.06

OPINION NO. 92-6

An advisory opinion has been requested as to whether the Coordinator of the Motorcycle Safety Program (the Requestor) in the Motor Vehicle Administration (MVA) may have secondary employment at a community college (the College) teaching courses in its driver education program. We advise that this employment relationship would be prohibited by the employment provisions of the Maryland Public Ethics Law.

The Requestor manages the Motorcycle Safety Program established in Transportation Article, §16-602, Annotated Code of Maryland. The law provides for establishment of training courses either by the Administration itself or through contract with a private organization. The program is funded through a dedicated commitment from the Transportation Trust Fund, and subsidies are allowed on a per student basis. The training program is available to any person who has or is eligible for a motorcycle operator's license. It is required for any person under the age of 18 who is seeking a motorcycle operator's license, but is completely voluntary for any other person. The program also includes a general public education program and an information program directed at motorcyclists.

The Requestor's functions as Program Coordinator include development and administration of regulations and policies regarding operation of the Program, management of training centers, approved curricula, facility standards, student performance criteria, certification procedures, payment guidelines and equipment used. The position involves establishing training centers, hiring personnel and soliciting organizations to serve as training center sponsors. Also, the Requestor develops and approves curricula, manages a central registration and scheduling system for students, and makes on-site monitoring visits to training centers. His duties also include coordination with the Division of Driver Licensing and School Vehicle Safety in revising the motorcycle licensing knowledge and skills tests, training examiners and printing the Motorcycle Operator's Manual.

The Motor Vehicle Administration is charged with the responsibility for licensing drivers for all classes of motor vehicles. In connection with this it develops and administers written tests and through its branch offices conducts driving examinations and performs other administrative activities in furtherance of the driver licensing functions. The driver education program is a program including both classroom and laboratory (behind-the-wheel) instruction to eligible individuals who are 15, 16 or 17 years of age. Programs can be provided by public high schools, private driving schools, or community colleges in accordance with regulations jointly issued and administered by the Administration and the State Department of Education (DOE). All entities providing driver education, including community colleges, must submit an application to the Administration (or DOE if in the public school system). They must meet requirements regarding curriculum, classroom space, books and materials, driving space, and insured, inspected and maintained vehicles.

Also, all programs, including community colleges, must provide for instructors certified by the Administration as classroom or laboratory instructors. Classroom instructors must have a college degree including academic credit for at least 6 semester hours of an approved college level course in safety education. Behind-the-wheel instructors must have a certificate of completion of 40 hours of instruction in an approved driver training course. Proposed 40-hour driver instructor courses are reviewed by the University of Maryland (CP) Safety Education Center and certified as complying with the 40-hour requirement for behind-the-wheel instructors.

The Requestor, who has a master's degree in traffic safety and was formerly employed at the UMCP Safety Education Center, wants to be employed by the College to teach driver education and also to teach a driver instructor's course. In this connection, he has applied for and been granted certification as a classroom driver education instructor, and his credentials were submitted to the UMCP for review in connection with the agency's approval of the College's Traffic 280 course as meeting the 40-hour requirement for behind-the-wheel instructors. The Requestor indicates that he is acquainted through his church with an individual who is affiliated with the continuing education program at the College, and it is through this individual that he became involved in the College's driver education program. This is confirmed by the College's driver education staff person, who advises that he recruited the Requestor based on the advice of his supervisor (the continuing education director) who knew the Requestor and that he had experience in this field. The College's program is limited to driver education; it is not involved with the motorcycle training program.

This request presents issues under the employment provisions of the Public Ethics Law (Article 40A, Annotated Code of Maryland, the Ethics Law). Section 3-103(a) prohibits a person from being employed by an entity that is subject to his authority or that of his agency (subsection (a)(1)(i)). It further bars any other employment that would impair the individual's impartiality or independence of judgment (subsection (a)(1)(ii)). The Commission in implementing the first restrictive prohibition (subsection (a)(1)(i)) has in the past concluded that State agencies are not "entities" for purposes of application of this section. We have, however, advised that in some circumstances employment with another State agency may be prohibited under the more general impairment provisions of subsection (a)(1)(ii), where there are personal or organizational conflicts that cannot be resolved by administrative or personnel systems.

Since community colleges are viewed as State agencies for purposes of the Ethics Law, we have generally considered proposed employment with them under the principles developed pursuant to the impairment section of the Law. Teaching employment at community colleges has thus been permitted in several situations (see, for example, Opinions No. 81-7, No. 83-22, and No. 90-16, as to general courses), where there were no relationships suggesting impairment, and where the employees did not improperly use their State position in connection with the activity. When the situation involved employment with a community college operating in a direct regulatory or contractual relationship that was impacted by the employee's official duties, however, the employment was found to be prohibited. (See, for example, Opinions No. 85-17 and No. 90-16, as to courses required for licensing.)

The Requestor's employment would be with a community college and therefore subject to review pursuant to these general principles. We recognize that this activity is not directly related to the motorcycle safety program functions that the Requestor handles in his official duties. We are concerned, however, that he will be teaching in a program that is significantly subject to the certification requirements of his agency, and that is funded in part by funding subsidies from MVA on a per student basis. Moreover, in order to participate in the course, he himself must be directly certified and licensed by his agency, and his credentials are part of the Traffic 280 40-hour course approval. Additionally, the Requestor has contact in his State position with MVA personnel who administer the driver training programs.

In our Opinion No. 82-1 we considered an employee of the MVA who wanted to have secondary employment as a driver education instructor with a professional driving school. That opinion reflects some of the kinds of concerns that could be present as a general matter when MVA employees become involved as private participants in the driver education and licensing process. This is a significant program in State government that directly impacts a substantial majority of the State's citizens. We believe that the appearance concerns set forth in §1-102 of the Law and the general concern for maintenance of the integrity of this program require the continued careful application of the employment provisions of the Law in these types of situations. We therefore advise the Requestor and the agency that the Requestor's involvement in driver education teaching activities that require agency certification, either individually or through program approval, is barred by the employment provision of §3-103(a) of the Law.

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

Date: May 28, 1992