94.12

Opinion No. 94-12

An opinion has been requested as to whether the Deputy State Superintendent of Schools may be employed as a speaker for a national textbook publisher that markets textbooks to Maryland school systems. While we have very substantial concerns regarding this activity given the Requestor's high position within the Department of Education, we advise, based on the current facts presented by the Department, that this activity is allowable as described, provided that it is carefully monitored and conducted within the constraints set forth below.

The Requestor here, formerly an Assistant Superintendent, was recently appointed as the Deputy State Superintendent of Schools. He is one of two Deputies within the State Department of Education, and his duties are primarily administrative, dealing with budgetary and fiscal programs, personnel matters, and general control functions. According to his official position description, for example, his responsibilities include supervision of the Department's strategic planning process, service as its Fair Employment Compliance Officer, supervision of the Audit Office and Internal Auditor, and work with the budget and employee classification programs. (The other Deputy's functions relate to Instructional Programs.) We are advised by the State Superintendent of Schools that the Requestor's interaction with local school systems is within the scope of these stated duties, but in no way relates to the use and selection of textbooks.

The private activity presented for our review involves the Requestor's affiliation with a textbook publisher (the Publisher) that arose when he was approached by a Vice President of the Publisher who attended a presentation he made to an educational organization at a local university. He indicates that he tends to be asked to serve as a dinner speaker by groups who want a minority perspective, and speaks on general issues not necessarily related to education. He frequently does this on his own time, though he recognizes that some people may be aware of his official position. The Publisher uses his services in programs involving his own topic of interest, cultural diversity.

According to the Requestor, he has served as a speaker at a parents group organized by the Publisher and has participated in a seminar program for the Publisher's employees on multi-cultural education to work with people in understanding diversity. At other times he has done a seminar for a group of educators in a school system. He says that he has never served as a speaker for the Publisher in Maryland, and his activities for it have never involved any issues or discussion regarding its textbooks or related products. He says that the Publisher is primarily engaged in the publication and distribution of school textbooks. The Publisher does apparently market its products to public school systems in Maryland. According to the Ethics Commission's list of entities doing business with the State, it does not do business directly with the State Department, though the list shows one contract of just under $10,000 with the Maryland School for the Deaf.

The Education Article of the Annotated Code requires the State Board of Education to establish basic policy and guidelines for the program of instruction for the public schools, and pursuant to these principles the local superintendents are to develop curriculum guides and courses of study. These State-established standards for instructional programs cover curriculum, instruction and instructional support services, school administration and climate, and pupil services and student activities, and also include testing requirements and define competency requirements for graduation. The regulations also include more detailed requirements for specific subjects, though even these requirements are directed to definition of goals rather than to setting out specific textbook requirements. The Education Article specifically provides that contracts for the purchase of books and other instructional materials are not covered in the Department's purchasing program, and the Department advises it has no role in textbook selection and does not establish or distribute lists of approved or recommended textbooks. It would appear, however, that textbooks that do not advance the general principles for instruction defined by the Department would not be marketable in Maryland schools.

State level authority relating to specific textbook decisions arises from the authority of the State Board of Education to hear and decide controversies and disputes arising under the requirements of the State education law. This may include appeals from local board decisions regarding requests for removal of textbooks from a school system's curriculum. According to the Deputy Superintendent for Instruction, however, though this authority is exercised at the State level, the State Department tends not to be involved in appeals made to the State Board. She says that usually appeals are briefed at the local level, and arguments are made by lawyers before the State Board. The Deputy Superintendent also advises that as a general matter the program offices in the State Department are not called upon to assist or participate in Board decisions on appeals.

The Department also has responsibility regarding the development of special programs for library media services, and for programs involving local county libraries. Though these responsibilities are general, they would necessarily impact on books and other materials to be included in school library collections, and presumably the Publisher as a book publisher could be marketing to these local school units. The Requestor's position description reflects his supervision of the Assistant Superintendent for Library Development and Services. Though he indicates that his involvement with this program tends to be limited to fiscal and administrative matters, his position description and supervisory responsibilities suggest at least a potential for direct interaction with persons in local library systems who could be involved in book purchase decisions.

Section 3-103(a) of the Ethics Law prohibits employees from being employed by entities that contract with or are 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)). In providing advice regarding this section of the Law, we have in many opinions advised that affiliation with private entities to provide services in return for compensation will be viewed as an employment relationship, whatever the technical form of the relationship. This would include employment as a speaker, as envisioned here. This service could also involve application of §3-104 of the Law, which prohibits employees from using the prestige of their office for their own economic gain or that of another.

Since there appear to be no direct authority or contractual relationships between the Publisher and the State Department of Education, we believe that the question here is application of the impairment and prestige provisions of the Law. (Note, however, that there would probably be a different conclusion as to this issue if the Publisher were to become involved in a textbook appeal.) We have issued many opinions dealing with application of these provisions both in the context of consulting activities and teaching, lecturing and writing by State officials and employees. Opinion No. 86-14, for example, includes a review of previous opinions dealing with outside consulting, and summarizes the kinds of criteria and issues considered in evaluating the allowability of consulting activities. Generally, the criteria include consideration of geographical focus in Maryland, doing the same kind of work in both private and official activities, serving the same populations in private and official duties, and interacting with the same persons generally in the context of the public and private activities.1. Teaching and lecturing has also been permitted under some circumstances.2.

In the situation presented by the Requestor and the Department, no relationships between his described official position and his speaking activities on behalf of the Publisher are described. He has been serving as a speaker for the Publisher for several years, apparently without issues being raised, and appears not to have developed the relationship in the context of his official State duties. The activity is solely outside of Maryland, and involves a subject area not part of his official duties. His agency apparently has no direct dealings with the private sponsor and no authority or official functions that would involve the Publisher's business activities, and the Superintendent believes that the activity would not present concerns for the Department. Under all of these circumstances, we cannot conclude that the Requestor's speaking activities are currently as a matter of law prohibited by the employment and prestige provisions of the Law.

Our advice that continuation of this activity is allowable, however, is tempered by appearance and other concerns resulting from the fact that the Requestor has a high level and visible position in the State Department, and that the private employer has marketing and economic interests in the Department's program area with potential, albeit indirect, accountability under the Department's regulations. We do advise that this activity must be carefully monitored and within significant constraints. For example, his engagements for the Publisher must continue to be outside of the State of Maryland and not rely in any way on his status or position with the Department. He should not be introduced or offered as a speaker in his State capacity, and he needs to avoid any involvement in direct textbook issues in his speaking activities.

The Requestor's affiliation with the Publisher also depends upon his and the Department's continued lack of involvement in any matters impacting on the Publisher. If any matters arise that relate to the Publisher or involve consideration of offerings of particular publishers (either in the schools or public library context), then his continued work with the Publisher will need to be terminated. This is also true if the Publisher becomes involved in a textbook appeal. This relationship with the Publisher would also have to be discontinued if administrative and budget activities lead to his collaboration with local personnel involved in budget and similar decisions directly impacting on textbook and related determinations. In view of these concerns the Department and the Requestor need to consider carefully whether this activity should continue. The Requestor should consider the fact that the line between allowable and prohibited conduct here is quite narrow and violation of the Law could easily occur. The Department needs to consider as part of its own policy whether it wants an agency official to have this type of relationship in view of its mission, authority and relationships with local school systems.

Mark C. Medairy, Jr., Chairman
   Michael L. May
   Robert J. Romadka

Date: December 7, 1994

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1 #032; See also Opinions No. 85-18, No. 86-18, No. 92-4 and No. 93-8.

2 See, for example, Opinions No. 80-8 and No. 83-11, and also, however, No. 80-7 and No. 83-9, where such activity was barred.