Opinion No. 94-10

A request has been presented by the Department of Public Safety and Correctional Services (DPSC) as to whether a Correctional Officer II at the Eastern Correctional Institution (ECI) may have secondary employment as a civil process server. We advise, based on the description of the Officer's duties and his private activity, that this employment as described is not prohibited by the Ethics Law.

The Requestor has been employed as a correctional officer at ECI since 1992. His duties involve custody, security and supervision of adult male inmates confined at ECI. He has no supervisory duties as to other employees. According to the facility's personnel officer, he works the midnight to 8 a.m. shift and has no particular specialty or defined assignment. She says that posts are rotated on a 90-day schedule and he may be assigned to work the yard or tower, on an escort and relief assignment, or in a housing unit or the dispensary. Correctional officers maintain control and discipline of the inmates, conduct inspections for drugs and weapons, enforce rules of conduct, and stand armed posts that may involve the use of firearms. According to the position description, they are continually exposed to and interact with inmates, and may also deal with visitors on a limited basis.

According to the Requestor, he is an Eastern Shore native who was engaged in process service activities prior to his employment at ECI. This outside employment, which was disclosed at the time of his employment, is with Attorney Services Corporation, a Baltimore-based private process agency with over 500 attorney clients, mostly in Towson and the Baltimore/D.C. corridor. According to Attorney Services, its primary work involves civil process service; it has no activities relating to the criminal court process. An agency representative indicates that it has no regular clients on the Eastern Shore. The 5 or so services per month in that area represent less than one percent of the 3000 per month total. We are also advised that the company is seldom called upon to serve papers on ECI inmates, with this type of activity occurring only a few times a year at most, and these services not carried out by the Requestor.

In his work for Attorney Services, the Requestor indicates that he serves only civil papers involving the State District and Circuit Courts and the federal District Court. These may involve accident cases, loan default cases, domestic matters or business-related cases. He says that generally he can tell whether the person to be served works at or has any other affiliation with ECI, since work addresses are usually provided. He indicates that he refuses any involvement where the person is an ECI guard or inmate and these are handled by another person in the area. He says that he is careful to provide no information whatever about the facility or its accessibility or otherwise. In 1993 he says his volume of service work was about 50, most of it involving businesses. The papers are sent to him by mail from the Attorney Services' Baltimore Office. He serves them, completes the affidavit and returns it to the Baltimore office. He is paid as an independent contractor based on each incident. He says that he does not go to the court to pick up the papers. He advises that he seldom has any dealings with attorneys, though he may occasionally contact the attorney in the case to check on an address.

This request requires our consideration of §3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law), which prohibits employees from having outside employment with entities that contract with or are subject to the authority of their agency (subsection (a)(1)(i)), and from having any other employment relationship that would impair their impartiality or independence of judgment (subsection (a)(1)(ii)). Attorney Services does not appear to have any contractual relationships with DPSC in general or ECI in particular. It does not appear on the Ethics Commission list of entities doing business with the State. Though service of papers on inmates at the facility could subject a process server to the facility's regulations regarding access, from the facts provided here, it appears that this is a very remote and limited activity and in any case would not involve the Requestor. Under these circumstances, we conclude that this employment does not result in a prohibited relationship for purposes of the strict prohibition of §3-103(a)(1)(i) of the Law.

The question is thus whether the impairment provision of subsection (a)(1)(ii) would apply to bar this employment. This provision of the Law has been viewed as a complement to the strict employment provision, applying depending on whether there are relationships or interactions between the two employments that raise clear and serious concerns as to the ability of the individual to maintain the private relationship without impacting on his ability to carry out official duties impartially and with independence of judgment. In applying this section, we have also considered whether the activity was in the same geographical area as the State job or involved the same population impacted by the State agency or program. As to the particular type of activity involved here, we have issued an opinion and several informal letters dealing with process service activities, generally prohibiting these activities by individuals employed at Clerks of Court Offices. We have also considered several situations involving correctional officers, which generally reflect our view, also strongly advanced by the agency, that correctional officers that interact on a daily basis with inmates should not have private employment and interests that result in economic interests and interaction within the criminal justice system.

In our view, this request involves a situation that does not fit within the principles developed by either of these categories of prior advice. The agency has not presented any significant concerns regarding the activity under consideration here. Also, the process service work does not involve the criminal justice system, nor does it appear to entail interaction with attorneys, criminal defendants or others likely to be inmates or connected to inmates. Based on the information provided by the Requestor and Attorney Services, the total volume of this activity is limited and the potential for interaction with ECI even less. There is, of course, given the nature of this community, some limited potential for encounters in the private work with others who are ECI employees, and, despite the Requestor's intention to avoid this by refusing assignments in any way involving the facility, its inmates or its staff, he may not always be able to know of any such relationship. We do not believe, however, that this potential is sufficiently strong or presents sufficient likelihood of impact on how the Requestor carries out his official duties to conclude that it is prohibited as a matter of law. This is particularly so given the very limited extent of this activity.

We therefore advise the Requestor and the Department that this employment is not prohibited, as long as the Requestor continues to take the precautions he has followed in the past to ensure there is no relationship between his private employment and his position at ECI, and as long as no incidents or situations impinging on the workplace come up in the future. The Requestor, of course, must also take care in carrying out his process service work not to come into the facility or use his uniform, badge or other indicia of his position.

Mark C. Medairy, Jr., Chairman
   Michael L. May
   Robert J. Romadk
   April E. Sepulveda

Date: December 7, 1994