95.07

OPINION NO. 95-7

An opinion has been requested as to whether a Maryland State Police Trooper assigned to the Commercial Vehicle Enforcement Division may have a private business providing consulting services to small businesses operating trucks only in Pennsylvania regarding their compliance with federal and Pennsylvania trucking requirements. We advise that this activity is not barred by the Ethics Law, assuming it is conducted as described and within the strict parameters set forth in this opinion.

This request involves an individual (the Trooper) who is a Trooper First Class in the Commercial Vehicle Enforcement Division (CVED) assigned to Washington County. According to MSP supervisors, the Trooper has the general enforcement authority of any Trooper. He can engage in traffic enforcement activities and other criminal law enforcement work. His current assignment, however, involves him primarily in enforcement of motor carrier laws relating to commercial vehicles. His duties involve weighing and inspecting trucks and enforcement of State and federal regulations dealing with size, weight and safety. He inspects also for mechanical defects, working both at a weigh station and as a roving inspector. He can stop trucks that look overweight and weigh them using portable scales carried in his vehicle. He can cite and place a vehicle out of service for being in disrepair and can require off-loading if a vehicle is overweight. He can also go into trucking companies and review maintenance and records programs to enforce federal regulations. According to the Trooper, he may be involved in reviewing maintenance records and programs maintained by trucking firms, though the majority of his work involves tractor trailers in interstate traffic, primarily along I-81. The Trooper has been with MSP for 10 years and with CVED since 1990. He is certified to serve in the CV Enforcement Division and has had training through the agency in weighing vehicles, hazardous materials training, training on federal Motor Carrier regulations, and a course on Maryland's preventive maintenance program.

The secondary employment that is the subject of this request relates to the Trooper's interest in establishing a private consulting business that would operate in Pennsylvania. He indicates that he proposes to target solely small businesses such as landscapers, paving companies, and office supply companies, whose ownership of a commercial vehicle is incidental to a different primary business. He indicates that he would not be dealing with trucking firms engaged in interstate truck traffic. The Trooper advises that he would operate only in Pennsylvania and would market only by direct mail solicitations handled through a direct mail service that could screen out larger businesses that might be expected to operate interstate and possibly come into Maryland. He also indicates that he would plan to screen out individually by excluding any possible client that has an interstate license and making clear to potential clients that he would not provide any services if they engage in activities in Maryland. His services would involve providing advice on compliance with Pennsylvania and federal requirements on equipment and operation of commercial vehicles and on driver qualifications. He says that his services would be primarily informational and assisting in preparation of forms, but would not involve direct dealings by him with any government agency. The Trooper indicates that he would not anticipate providing any official inspection or related services.

Section 3-103(a)(1)(ii) of the Public Ethics Law (Article 40A, §3-103(a)(1)(ii), Annotated Code of Maryland, the Ethics Law) prohibits officials and employees from having any employment that would impair their impartiality or independence of judgment. Section 3-104 prohibits an employee from using the prestige of his office for his own economic gain or that of another. We have on many occasions provided advice to individuals regarding private consulting activities based on the limitations established in these two Ethics Law provisions. Opinion No. 86-14 (opinions published in COMAR Title 19A) is a key opinion on this subject. It involved the interest of an amusement ride safety inspector in the Department of Licensing and Regulation in providing private consulting/inspections of amusement rides in other states. This opinion 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 public and private activities. Later opinions that develop and apply these criteria include Nos. 86-18, 89-1, 92-4 and 93-8.

We understand that some concerns have been expressed within the agency that commercial vehicles in both Maryland and Pennsylvania are subject to regulations that have their source in the federal motor carrier safety program, and that the Trooper has received training and certification under the federal requirements that will benefit him in his private undertaking. The Department's ethics liaison has suggested, however, that the consulting described by the Trooper would be allowable as long as there are clear constraints and understandings regarding these limitations. In any case, we note that the Ethics Law recognizes the possibility of more restrictive agency limitations on employees to meet more particular agency management and administrative concerns. These administrative concerns could be considered to the extent agency managers believe necessary within that context.

In considering the circumstances here, and our previous advice under the Ethics Law, we conclude that the proposed consulting would not be barred as a matter of law, provided that the constraints defined in these opinions are understood and the Trooper clearly understands that he has a substantial burden of ensuring that his activities can function under these principles. In our view, the mere fact that both the Maryland program in which he works in his primary employment and the Pennsylvania program that would apply to his clients in his private employment are mandated by and have substantial relationships to the federal motor carrier safety requirements would not require a different conclusion. Nor have we generally taken the approach that an individual would be viewed as being impaired in carrying out his Maryland duties by virtue of his work with a similar program in another State, as long as the actual populations served did not overlap and other impairment situations did not arise.

Also, though performing work in a program related to one's State program or growing directly out of training or related activities has been viewed as a factor in evaluating private consulting work, we have not as a general matter concluded that the sole factor of using expertise and training acquired on the job is in itself an improper use of prestige prohibited by the Law. There has been informal discussion of the fact that excessive training directed more at private goals than necessary for State work would be improper, and employees have been barred from engaging in private consulting work where business is engendered in the context of official participation in meetings and seminars. We have, however, recognized that skills developed or experience acquired in the context of a State position may in some circumstances be used in private employment, as long as certain guidelines are followed.

In this request these guidelines would include that the Trooper take care that his business does not involve clients that engage in interstate activities or could in any way be on Maryland highways subject to the jurisdiction of him or his agency, or clients whose primary business is trucking or interstate highway operation. He also needs to ensure that his marketing does not take place within Maryland or rely in any significant way on his status as a Maryland trooper or credentials that are incident to his status as a trooper. Further, the business needs to avoid direct interaction with Pennsylvania law enforcement or motor carrier enforcement authorities with which MSP interacts, and should not entail the provision of official inspection or related services.

Based on all of the information provided here and the representations made by the Trooper regarding his private business plans, we advise the Trooper and the agency that the private business that he describes would not be prohibited by the Ethics Law, as long as it is established and operates as described and within the constraints discussed in this opinion.

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

Date: May 17, 1995