An advisory opinion has been requested as to whether an apprenticeship and training specialist in the Apprenticeship and Training program in the Department of Labor, Licensing and Regulation (DLLR) may be compensated for teaching activities on behalf of a private entity funded by the Employment and Training Program, also a unit of the DLLR. We advise that this activity would be barred by the strict employment provisions of §15-502 of the Ethics Law (State Government Article, §15-502, Annotated Code of Maryland (formerly Article 40A, §3-103(a)), and that an exception cannot be applied to allow the activity.

The Requestor works as an apprenticeship and training specialist in the Apprenticeship and Training Program in the Labor and Industry Division of the Department of Labor, Licensing and Regulation. This program is established in §§11-401 through 11-408 in the Labor and Employment Article, Annotated Code of Maryland. Its purposes include encouraging development of apprenticeship and training programs through working with businesses, establishing standards for apprenticeship and training programs, and setting up a program of planned apprenticeship under registered agreements meeting federal Department of Labor standards. The program includes the Apprenticeship and Training Council, which defines policy, identifies apprenticeable trades in Maryland, registers apprenticeship agreements, and issues certificates of completion.

The Council is supported in its work by the staff of the DLLR Apprenticeship and Training program, which includes apprenticeship and training specialists who promote apprenticeship programs and work directly with employers in establishing and implementing apprenticeship programs. According to the Requestor, the State program does not fund employers in developing programs. The employer pays wages, provides the on-the-job training and funds the classroom instruction (sometimes under some arrangement with the employee). He says that his job as the field person for Baltimore City, in addition to promoting apprenticeship programs in the area, is to work directly with local employers in setting up programs. He advises as to the program requirements for compliance with the agency's apprenticeship standards, provides assistance in developing schedules, etc., provides information about available classroom resources, and assists in processing registration requests. He also provides the paperwork support for existing programs. This includes processing apprenticeship agreements and completing certifications. He then monitors and evaluates programs, and may provide mediation assistance if there are conflicts or issues that arise in a program.

This request involves the Requestor's interest in being a trainer in the employment and training area for a private organization that provides training to individuals employed in the State's implementation of the Job Training Partnership Act. This is a federal program operated in Maryland pursuant to §§11-501 through 11-509 of the Labor and Employment Article, Annotated Code of Maryland. Its purpose is to increase employment by providing training to unskilled youth and adults who are economically disadvantaged, to dislocated workers, and to others who encounter barriers to employment. It is funded through federal funds available through service delivery areas (SDA's) that develop and administer programs to respond to particular employment needs presented in the area for these types of workers. In Maryland there are 12 SDA's, with varying kinds of entities. In some areas the program is located in the local community college, in others in a local Private Industry Council (PIC), and in others a private non-profit organization established for the purpose.

The job training program in Maryland is managed through the Office of Employment and Training in DLLR, which works with the State's 12 SDA's. These entities employ primarily local individuals whose job is to develop training programs and to work directly with employee clients to help them get into training programs and find jobs. The Maryland Institute for Employment Training Professionals was put together by the State and the SDA's to create a training program directed at these individuals working in the local SDA's. According to the Director of the Job Training and Partnership Program, the Institute was established in and functions as a part of the Talbot County SDA, which is part of the County's Private Industry Council. It has a Board of Directors that includes SDA representatives and is funded by grants from the Job Partnership Program, as well as Project Independence in the Department of Human Resources, and the Job Services Program in the Office of Employment and Training. Its purpose is to provide professional development courses through peer training to training development specialists in subjects such as project management, budgeting, motivational skills, and presentation skills. Because a part of the program is for peer training involving persons working in these types of programs, many of the Institute's trainers have some program affiliation. Some are workers in the SDA's, while some are employees in the Job Partnership Program. According to the Director, Job Partnership Program staff do training as part of their official duties and are not compensated.

The Requestor is a State employee, but not in the Job Partnership Program. He suggests that since he does not work in this program, he would like to be compensated. He says that the curriculum is generally developed by the Institute and that his role is to be a presenter. Though he indicates that he has little interaction with the Job Partnership Program, he may make a promotional presentation to a PIC or to job training employees about the general availability of apprenticeship programs as a possible training/placement alternative. He says he may also receive a call from a particular person about whether any employers in an area have an apprenticeship program, though this apparently is rare.

Section 15-105 (b) of the Ethics Law (formerly §3-103(a)) prohibits an employee from being employed by an entity that contracts with his agency. We have in the past consistently advised that for purposes of this provision a person's agency is the cabinet level department of which his particular program is a part. We continue to believe this to be the case, and as noted in recent opinion No. 95-11, the inclusion of the term executive unit in the recodification of the Law does not alter this approach. The Requestor works in a State program that is part of the DLLR's Division of Labor and Industry. The Institute (and the Talbot County PIC of which it is a part) is a private entity whose grant funding source is the Office of Employment and Training, also a unit of the DLLR. Consistent with our previous advice, we conclude that the Requestor's provision of compensated training services to the Institute would be employment for purposes of §15-502(b) and would be prohibited unless an exception is allowed.

Exception is allowable pursuant to provision in §15-502(c) that the prohibition does not apply where it is determined pursuant to Commission regulations that the particular situation presents no conflict of interest or appearance of conflict. The Commission's regulations implementing the employment portion of this provision (COMAR 19A.02.01) define circumstances where the relationships between an employee's official duties or his agency and the private employment or interest are sufficiently remote that the possibility of a conflict or appearance of conflict is unlikely. The criteria include consideration of an employee's dealings with the private employer or entity in the context of official State duties, as well as consideration of how his private activities relate to the agency program or the employee's duties. They also include an evaluation of the specific employment circumstances to ensure that they do not otherwise create a conflict of interest or appearance of conflict, and consideration of the source of the private compensation. The allowance of an exception also depends to some extent on whether the employing agency supports the exception and has advised that there would be no conflict of interest or appearance of conflict that would impair the credibility of the agency.

In applying the exception criteria to this situation, we note that several issues are presented relating in part to the fact that the Requestor's training work for the Institute would be in furtherance of the entity's grant/contract with his agency. Also, he would be funded by DLLR grant funding. The regulations do not allow for an exception in situations where an employee is being compensated by his own agency's grant or contract funds. Moreover, though his primary duties are in a unit of DLLR different from the entity that funds the private employer, it appears from his description of his functions that he has some information and potential support duties relating to the Job Partnership Program. The Requestor's agency has indicated that although it believes there would be no conflict, it does not to take a position on whether an exception should be allowed.

Under all of these circumstances, we conclude that an exception cannot be granted. Though the Requestor's agency has not objected to an exception, the regulations, which are aimed at conflicts and appearances of conflict, do not provide for exception in these circumstances. We believe that these provisions reflect a statutory intention that these types of affiliations with entities that are funded by one's own agency present such a potential for conflict that they will generally be prohibited. The exception provision, in our view, is to overcome this intention only where the official relationships and the private work are so clearly remote that a conflict or appearance of conflict can be avoided. We are unable to come to this conclusion in this situation, and therefore advise the Requestor and his agency that this activity cannot be pursued by the Requestor for compensation.

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

Date: January 31, 1996