95.12

OPINION NO. 95-12

An opinion has been requested as to whether the Ethics Law applies to prohibit the Coordinator of Academic Education in the Correctional Education Program of the Department of Education (MSDE) from serving as the part-time compensated Executive Director of the Correctional Education Association. We advise, based on the information provided, particularly on the past absence of problems in connection with this activity, that this employment may continue, within certain constraints.

The Requestor works in the correctional education program in the State in the Career Technology and Adult Learning Division of the State Department of Education (MSDE). The program provides academic programs in 12 major correctional institutions/schools. Each school has a principal and anywhere from 5 to 15 teachers, most of whom are full-time. The program covers adult basic education (ABE) dealing with reading, writing and math as they relate to basic life skills, and the GED high school equivalency program, which follows a national curriculum including science, social studies, literature, writing and math. It also includes a basic literacy unit. As Coordinator for academic education the Requestor provides general coordination support for the program in all the institutions, but not line supervision authority over the teachers. He develops the program, including curriculum and evaluation, develops teacher inservice training, coordinates with the vocational and special education programs, and supervises the management information system. The Requestor indicates that he works in the correctional institutions, but that ongoing project development within the particular institutions is more likely be a function for the institution principal.

According to the Requestor, though he has some responsibility for developing staff inservice training activities, he has no role in the employee training generally. He says that there is a training office in MSDE that is responsible for training that has been processed originally by the principal and through the Director of the Program. The Requestor says his role in inservice training is to communicate information about a program to teachers and works out attendance. He may indicate how the program curriculum suggests needs for certain kinds of training, but otherwise is not involved in developing the programs or processing teachers for the activity. The Requestor also has duties involving the monitoring and administration of federal grants to the agency. This entails doing the grant application, report writing and monitoring to be sure that the activities are carried out as required by a grant.

This request involves the Requestor's private employment as the Executive Director of the Correctional Education Association (CEA or the Association). This is a national professional organization with a membership of approximately 3000, for persons engaged in teaching and related activities in the correctional education area. According to the Requestor these individuals are people with teacher certification and possibly training or experience with people that have problems learning, with specialized certification in special education or reading specialization. The Association is managed by a Board of Directors that includes four executive officers, two international representatives and the Director of each of the Association's 9 regions. The organization publishes a professional journal, a quarterly newsletter and an occasional yearbook. It runs a national conference, usually about 3 days in length each summer, and a smaller leadership conference in late winter. The annual conference includes workshops, exhibits and general presentations, usually in a large city.

The CEA's permanent office functions in collaboration with the American Correctional Association (ACA), located in Lanham, Maryland. The CEA rents space from the ACA and also receives other kinds of services such as phone, equipment, etc. It has through the ACA a full-time receptionist and a secretary for 15 hours per week. At the time the Requestor originally was employed by the CEA the only other staff was a contract accountant who kept the books; currently the organization employs two full-time professional staff. The Requestor's employment with the CEA began in 1986, and was approved through the MSDE's agency outside employment review process. Apparently at that time the Requestor had been very active as a volunteer with the CEA and adult education associations, including serving as President of the Maryland Association for Adult, Continuing and Community Education. He requested approval to respond to a job announcement issued by the organization.

The request for outside employment approval was reviewed within the Department, with the Program Director posing questions to him regarding the potential for conflict of interest, the importance of not using agency time or resources, and the concern that energy not be diverted to an outside position at the expense of his State work. The Requestor indicated that he would be functioning primarily as an office and organization manager, and that he would avoid representation of the organization before the Congress or in other agencies, but would ask the CEA President to do this. He also addressed the time and energy issues to the satisfaction of the agency, indicating his intention to discontinue other outside work and describing the office situation of the CEA. His employment was approved within certain constraints based on a position description reflecting the agency's understanding of the job functions as described by him.

The Requestor has thus worked for the CEA as its Executive Director since 1986 and both he and his supervisor indicate that this service has been without negative incident during that period. According to the Program Director, the agency continues to monitor the situation and renew its approval on an annual basis, and he is satisfied as the Requestor's immediate supervisor that agency concerns regarding competition of the CEA work with the agency duties are being met. According to the MSDE Ethics Liaison, Ethics Commission advice was requested as a result of routine agency review, and not because of any incident or issue that triggered any particular concerns on the part of the Department.

The Requestor describes his position at CEA as primarily administrative. He works 10-15 hours per week evenings and weekends, either at home or at the CEA office in Lanham, at a compensation of $1000 per month. He says that he pays the bills and manages its finances. He is a non-voting member of the CEA Board which meets three times a year. He says the substance of the meeting is defined by the President and executive officers and that this is not his role. The organization has 2 full-time staff persons, who he monitors and who are responsible for carrying out the day-to-day activities of the organization. These activities include planning and carrying out the annual conference. This is a 2-3 day program including workshops and other speakers, who he says are primarily recruited and scheduled by the staff. The Requestor and the Program Director indicate that MSDE staff may participate in these conferences, sometimes as part of their official duties. The Program Director indicates that decisions regarding staff participation in these types of events are made by him based on the recommendation of the individual's principal and whether the conference program includes subject areas of significance to the individual's duties, and the Requestor has no role in this.

According to the Requestor the CEA has 9 regional areas and most of the activity by the individual members involves the Region. Though some states also have State chapters, Maryland does not. It is in a region that includes Delaware, D.C. West Virginia, Maryland and Virginia, and the Regional Director is one of the principals in the Maryland system. He says that the national conference as well as other conferences sponsored by the regions are communicated throughout the institutions and are also noticed in the organization's newsletter and other publications. He says that most recruitment of members and for various activities is done at regional programs and meetings. Apparently some of the MSDE correctional teachers are CEA members, though he thinks most are not. The Program Director advises that he is himself an active member of CEA, and as indicated the Regional Director is an MSDE principal.

Another aspect of CEA activities is its grant work. The Requestor says the organization has received grants from the federal government and from United Way. He is involved in working on grant proposals and monitoring their implementation by the CEA staff. He indicates that organization has had two recent grants. One such grant recently completed was from the National Institute for Justice (NIJ). This grant resulted from CEA response to an NIJ Request for Proposals listing several subject areas, including "Impact of Programs." The CEA responded to this RFP and received a grant of $28,000 grant to do a research review and propose a model that could be used to study correctional education programs and their impact on recidivism. The Requestor indicates that the organization hired three consultants (from UMAB, UMCP and George Washington University) to do a literature survey and design a better research model that would define consistent criteria for categorizing types of education and recidivism occurrences.

Apparently the Program director participated in some of the meetings on the recidivism project in his MSDE capacity because of the agency's interest in this same subject, though this was informal and the only agency involvement in the project. The result of the project was development of a model which is now available (without charge) to be tested and used by States. The Requestor says that it never got to the point of being tested, though it has been proposed that it be provided to the State of Maryland to try it out. As a general matter he advises that the CEA has no contracts or grants or any financial relationships or interaction with the MSDE, nor is it regulated by the Department. Its members, at least its Maryland members, are generally teachers certified by the Department.

Another area of CEA activity by the Requestor seems to involve some sort of limited activities as a spokesperson. Though it was agreed when he was first approved for this employment that he would not engage in Congressional and related activities, apparently as the permanent Director of a national organization like CEA, the Requestor has a certain visibility and focus. He has served on a panel before the Congress relating to the adult education act. He says that he did this as an MSDE employee, that the MSDE Secretary reviewed his testimony, and that he monitored the proceedings for the agency. He indicates as a practical matter, though, that he was approached by the Congress because of his CEA position. Apparently as a professional association CEA was also recently asked to provide input on the special education bills. This, too, he says has been coordinated within the MSDE, with his collection of agency comments, which are currently being reviewed by the Office of the Secretary. He says that these views could be presented by him either as comments from the State or as CEA input. The Requestor indicates that any legislative activity is purely informational as to the CEA. He says that as a 501(c)(3) charitable organization, the CEA may not spend its funds on lobbying and that in fact the organization does not engage in lobbying activities, either as to program substance or as an advocate for professional interests of its members. He says it is not a union and never becomes involved in salary or work related issues.

This request presents issues primarily under the employment prohibitions of §15-502 of the Ethics Law (State Government Article, §15-502 (formerly Article 40A, §3-103(a), Annotated Code of Maryland). This section prohibits an official or employee from being employed by an entity that contracts with or is under the authority of his agency (subsection (b)(1)), or from having any other employment that would impair his impartiality or independent judgment (subsection (b)(2)). Since there appear to be no direct contractual or authority relationships between CEA and the Department, we believe that the issue presented is application of the more general impairment provisions of subsection (b)(2). This provision has historically been viewed by the Commission as intended to complement the strict employment and interest limitations, to deal with situations where there are other relationships between a private employer and agency program that raise clear and serious concerns that the individual cannot carry out his State duties with impartiality and independence of judgment.

In applying these general criteria in prior advice, we have tended to consider, for example, whether the private activity involved the same subject matter as the agency program, whether it involved interaction with individuals or organizations that were also involved with the State agency, and whether there were other interactions that would raise conflict issues. Though the situation here raises some questions, arising primarily from the close subject matter relationship between the CEA interests and those of the Requestor's agency program, we believe that the past uneventful experience with this affiliation suggests that it does not present an impairment situation that would be prohibited by this provision of the Law. For example, he has no supervisory duties as to CEA members who also work for MSDE, and apparently the involvement of other employees in the organization has not presented any issues. Nor, apparently, have issues arisen from his involvement in developing policy /informational submissions in the legislative area.

It thus appears that this employment has been ongoing for many years, and has not presented situations where the agency believes that its credibility is impaired or where the Requestor's CEA employment or its relationship with the ACA may have improperly impacted on his State position and the agency program. Given this past history, we advise the Requestor and the agency that the employment provisions of the Law would not apply to flatly bar this relationship. We recognize, however, that the subject matter overlap continues to exist and that the agency and the Requestor must continue to carefully monitor the situation. He also must continue to ensure that there is no overlap in his responsibilities, and that in his CEA work he does not use his State office or resources. He needs to clear any legislative submissions with the agency, for example, and be certain not to encourage CEA membership to other employees in the context of his State work. He also needs to continue not to have any role in approving participation by employees in CEA programs, and be aware that this advice applies only so long as there are no direct contractual or grant relationships between the agency and the CEA. Finally, both the Requestor and the agency need to be aware that this advice relies strongly on the information provided and the past and ongoing absence of issues. If questions are presented in the future that suggest an impairment or other problems under the participation, prestige or information provisions of the Law (§§15-501, 15-506, and 15-507), then further review will be necessary.

Mark C. Medairy, Jr., Chairman
   Michael L. May
   Charles O. Monk, II
   Robert J. Romadka
   April E. Sepulveda

Date: December 13, 1995