94.07

OPINION NO. 94-7

A request has been presented as to whether a Correctional Officer II at the Maryland Pre-Release Unit for Women (PRUW) may have secondary employment in the bail bond business. Though we have substantial concerns about the possibility of a conflict here, both as a technical and functional matter, we believe that current activity can continue under the current facts presented to the Commission. Any change in these facts is likely to change the result of this opinion. For example, when a central booking facility is established in Baltimore City, we believe that the Law and the facts will require the opposite result. Additionally, as a general matter, we believe that Division of Correction personnel under almost all fact situations would be prohibited from engaging in this activity.

The Requestor is a Correctional Officer II (CO II) with the Division of Correction in the Department of Public Safety. The CO II is a non-supervisory position involving custody, security and supervision of adult inmates. The duties of this position include maintaining control and discipline of inmates, conducting inspections and searches, enforcing rules of conduct, subduing and restraining inmates and observing inmate behavior. The Requestor works at the Pre-Release Unit for Women (PRUW) in Baltimore, a facility that houses 136 female inmates. About 100 are in the main building and 36 at the Annex, and all come to the facility from the Maryland Correctional Institute for Women, a maximum security facility.

According to the Warden at the PRUW none of its inmates come from the court or directly from the City Jail. While all of the inmates at PRUW are nearing the end of their prison term, the 36 inmates housed at the Annex on Park Heights Avenue are more likely to be in work release or on a release program that allows them to go to school. These inmates are able to leave the facility for work or school, but must return all other times and are still considered prisoners. The Requestor works the day shift at the Annex and is primarily a custody officer. She supervises the inmates and makes sure they follow rules. She files incident reports when problems occur. She makes rounds and does room inspections and audits equipment. Where there is an escape or a walk-off the Requestor's duties include notifying the proper law enforcement authorities, first calling 911 and the Baltimore City Police, and then the State Police. Then she prepares her reports. According to the Warden the Correctional Officer has no further role in this type of situation. The person when apprehended would go directly to the Baltimore City Jail and from there to a maximum security prison.

The outside employment at issue here is the Requestor's work for a local bail bond company (the Bail Bond Company). 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. Bail may be posted at the time bail is set by a court commissioner or judge. If bail is not posted at that time a bail review hearing takes place before a judge in which the DPSC's Division of Pretrial Detention and Services may make a recommendation as to the bail or the defendant's release on his own recognizance. If as a result of this hearing the defendant is not released, then bail may be posted at any time prior to the trial.

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 licensed by the Maryland State Police as detective agencies.

The Requestor indicates that she heard about this work through friends when she needed to earn extra money. She says that she is a licensed surety by the Insurance Commissioner, and is available to write bonds during the evenings until 11 p.m. and on weekends. She carries a beeper and is available by phone during those times. She says that the person wanting a bond (or their family or representative) goes to the Bail Bond Company office and provides information and is interviewed regarding their likelihood of appearing for trial. According to the Requestor's supervisor at the Company, the decision of whether the bond will be written is made by the Bail Bond Company and then the Requestor is called by the Company Secretary. She is given the basic information necessary to write the bond (name, address, etc.). She then appears before a Commissioner with a power of attorney to insure the bond. She says that given her hours she seldom goes to court and never would go to a detention center or correctional institution. She indicates that she does not interact directly with the defendant.

According to the Requestor she is paid a 2 percent commission for each bond she writes (of a total ten percent fee to the defendant). She has no ownership or economic interest in the company and says that she does not generate any customers. The Requestor indicates that she is paid weekly by the Bail Bond Company based on the bonds written during the week. She says that if a defendant skips bail then the Company gets a bounty hunter to find them. This does not impact on her income and she is not in any way involved in this process. She advises that she has no dealings in her private business with attorneys involved with the DOC and has no access to the agency's computer system or access to the inmate criminal history file.

The Department of Public Safety and Correctional Services continues to believe that its correctional personnel should not engage in private employment activities that involve them in providing services to or otherwise interacting with persons in the criminal justice system. It is concerned that inmates tend to be in and out of the system, and tend to be represented by attorneys who interface with the many aspects of the system managed by the Department. Correctional personnel who provide services to defendants or who serve as law enforcement personnel may become known by families and other persons who are affiliated with inmates within their jurisdiction in a correctional facility. It is also possible that they may have to go into facilities controlled by the Department, or otherwise deal with Department staff.

In the situation here, the representative of the agency has also advised that the Department is currently engaged in construction of a central booking facility to serve Baltimore City. When this facility is completed (anticipated sometime during 1995) all pre-trial detention, booking, and bail bond activities for the City will be centralized at the same facility, which will be operated, maintained and secured by the Department of Public Safety. The Department has serious concerns about the Requestor serving as a bail bondsman and entering into an agency facility in this connection. It has reservations about her ability to maintain a distance between her private and official positions if she would encounter fellow correctional officers in the context of her private bail bonding work. We believe that the Department's concerns are valid and need to be considered in the application of the Ethics Law and in any agency policy developed to control the conduct of its employees.

Section 3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law) prohibits an employee from being employed by or having an interest in an entity that contracts with or is subject to the authority of their agency (subsection (a)(1)(i)), and further bars any other employment that would impair the individual's impartiality or independence of judgment (subsection (a)(1)(ii)). We have issued two prior opinions regarding bail bond work by DOC employees (No. 85-6 and No. 90-13), both based substantially on considerations arising under the §3-103(a)(1)(ii) employment impairment provision, given the apparent absence of contractual or regulatory relationships that would bring the strict employment provisions into play.

In Opinion No. 85-6 we prohibited a correctional classification officer in a correctional facility from being an owner-employee of a bail bond business. This opinion reflected the Commission's concerns regarding the sensitivity of the individual's State position, her access to information, and the fact that inmates, parolees and probationers could be customers of her private bail bond business. The concern was the fluidity of the population in the criminal justice system and her likely interaction with the population in both her official duties and private duties. This approach was strongly supported by the Department of Public Safety and Correctional Services, which has historically taken the position that its correctional officers should not have private employment that involves the criminal justice system.

The second opinion, No. 90-13, involved a correctional officer at the Maryland Reception Center. He was not an owner of the bail bond business, but was paid a salary and had no economic interest in the business or in particular bond transactions. The individual in that request also took the strong position that his duties as a custodial corrections officer were primarily ministerial, involving very little discretion. He maintained that his duties involved custody and security but very little interaction with inmates. He argued that the bond transaction is a past transaction as to inmates within his official authority, as all inmates are incarcerated after a guilty verdict when bond is no longer a factor in the case.

In considering the situation in Opinion No. 90-13, the Department maintained its position opposing bail bond employment by its correctional officers. Nevertheless, the Commission concluded that the determination under §3-103(a)(1)(ii) must be made based on evaluation of the facts of a particular situation, advising that the individual would not be impaired in his official duties by his bail bond work. We stated particularly, however, that the advice applied "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."

Our decision in Opinion No. 90-13 reflected the approach that such situations would depend on each set of facts, allowing the employment in that situation based on the employee's description of his interaction with inmates and the facts maintained by him that he would have no occasion to deal with inmates in any of his private bail bond work. In evaluating the circumstances here as well as in other situations in view of our conclusion in Opinion No. 90-13, we have concluded that the earlier opinion must be clarified to reflect our continuing concerns and understanding regarding employment of correctional personnel in private activities, such as bail bond work, that involve interaction with the criminal justice system. There appears to be a dynamic interrelationship between inmates and their families and attorneys with various aspects of the criminal justice system over which the employee's agency has jurisdiction.

In rare circumstances, such as those presented here, we acknowledge that the facts may support a limited and narrowly defined activity in the bail bond area. We advise, however, that neither the result here nor the conclusion reached in Opinion No. 90-13 should be read as a general rule that employment in the bail bond area is allowable for DOC correctional personnel. Rather, we concur with the agency's view that employment by correctional personnel in criminal justice positions, for example, as bail bondsmen or law enforcement personnel, would as a general matter be barred by the inconsistent employment provision of §3-103(a)(1)(ii), and also present issues under the participation and prestige provisions of §§3-101 and 3-104 of the Law. Also, depending on the facts, §3-103(a)(1)(i) would be involved, particularly if the individual were required to enter a DPSC facility to carry out the private business.

Based on the particular and very narrowly defined circumstances presented by the Requestor, we conclude that her situation can be viewed as an exception to this general rule, at least until the opening of the agency's Baltimore City central booking facility. For example, we note that the Requestor works in a very small facility that houses women only, who represent a small part of the criminal justice population. Also, they are inmates who are near release and whose interaction with the bail bond system has been well in the past. When there is an escape or a walk-off the Requestor has some interaction with the law enforcement agencies, but this is apparently limited to notification of the escape. The Requestor states that she has never encountered in her official duties any person with whom she has dealt in her private bond work.

Also, as the Requestor describes her private work, she has very little interaction with the defendant or even with the defendant's family, since she writes the bond based on substantive evaluation by the bonding company. She is a contractual worker for the firm, with no ownership involvement or name association with the bonding company. Her private employer also indicates that the Requestor has no involvement in the bonding decision; she does not deal directly with any inmates and does not enter any correctional facility. She also indicates that she does not interact with any attorneys or inmate families that she may see in her State position.

Under all of these circumstances, and as long as they continue to be true, we advise the Requestor that this employment can be continued. One additional constraint to be followed is that the Requestor needs to avoid any involvement in bail matters relating to defendants for whom a bail review hearing has been held and the Division of Pretrial Detention and Services has made a recommendation or otherwise become involved with the defendant. The Requestor must be very careful to ensure that these facts and understandings do in fact continue to be the case, and be aware that if circumstances require her assignment to a different facility with a broader inmate population base, then a different result would be required. Also, we believe that this advice only applies as long as the existing decentralized booking system exists in Baltimore City (which is the primary area for the Requestor's activity). While we recognize that the precise operational and management plans are not yet determined for that facility, it does appear that this will be operated totally as a DPSC facility. Persons entering it for business or related purposes will need to be credentialed by the agency and meet a variety of security requirements, possibly involving interaction with correctional officers.

In this situation the Requestor would be engaged in a private employment activity bringing her directly within the authority of her agency. In our view this added aspect of what we consider at best to be a close situation would render the situation untenable under the employment impairment provision and would also appear to result in the application of the strict employment prohibition under §3-103(a)(1)(i). Even the current facts combined with the agency view would not support an exception to allow this activity under these circumstances. Therefore, as the plans for the central facility are now described to us, we believe that she should plan to discontinue this employment at the time that the central facility becomes operational.

Mark C. Medairy, Jr., Chairman
   Michael M. May
   Robert J. Romadka
   April E. Sepulveda

Date: September 28, 1994