96.03

OPINION NO. 96-03

An advisory opinion has been requested concerning whether a Finance Analyst with the Maryland Higher Education Commission (MHEC) may be a adjunct faculty member at a community college subject to the funding and program authority of the MHEC. We affirm our prior advice to a predecessor agency that individuals who work in higher education agencies may not have private secondary employment with institutions subject to the regulatory and funding authority of their agency, including community colleges.

The Maryland Higher Education Commission was established in 1988 as the successor agency to several higher education boards (including the State Board for Community Colleges) in a reorganization of Maryland universities and colleges that consolidated higher education policy and funding management in a single agency. The MHEC in consultation with the governing boards and agencies concerned with higher education develops and updates an overall plan to coordinate the growth and development of post-secondary education in the State. It has planning and academic affairs functions, including approval of academic programs and new institutions, overseeing post-secondary institutions (including private career schools), and analyzing the needs of and plans for education and training programs.

The agency's Finance and Policy Division oversees State scholarship administration, finance and facilities. It sets guidelines for operating and capital budgets for 4-year institutions, analyzes campus budget requests, and makes recommendations for funding, and also administers State aid for community colleges and private institutions and capital improvement for community colleges. The MHEC has general program authority regarding community colleges. The State budget developed by the MHEC includes an amount proposed for community colleges as part of the total State higher education budget. Provisions in the FY 97 budget currently under consideration for increasing State funding for community colleges reflect a policy determination by the Higher Education Commission to try to increase the funding to bring it closer to statutory provisions defining target percentages for State support of the community college program. Once there is an appropriation, this amount is then apportioned among the State's 18 community colleges based on a statutory formula which takes into account a variety of factors.

The Requestor is a Grade 18 Finance Analyst in the Division. The duties of the position are those of a public official under the Public Ethics Law (State Government Article, §§15-102(ee) and 15-103, Annotated Code of Maryland, the Ethics Law), thus requiring the filing of an annual financial disclosure statement. He has been in the program for a year and according to his MS-22 has responsibilities in five areas: Finance Policy Committee support, budget analysis, legislative process, research and data analysis, and State aid. The final item directly references community colleges, identifying calculation of community college State aid formula as one item. The Requestor advises that his role in legislation entails primarily tracking the status of legislation and preparing supporting materials for use by agency managers in testifying and otherwise participating in the legislative process. He says that he has not in the past dealt with community college staff in the context of legislative consideration of the higher education budget. The Assistant Secretary for Finance Policy indicates that the Division has a substantive role in reviewing facilities in connection with the capital budget for community colleges. She indicates that the Requestor's primary focus is on the University of Maryland system; he apparently has no current role in community college facility review work, which is done by another analyst.

This request arises as a result of the Requestor's interest in seeking a teaching position at a community college, partly for the teaching experience and partly to fund a doctorate degree. He says that he would apply at any of the colleges in the Annapolis and Baltimore area up to Harford County which is where he lives, and would want to teach basic academic courses in political science or public administration, with no more than one course a semester. He says he would submit a resume to the various institutions. He advises that he has no special knowledge of the people or the programs in these colleges because of his State position, though it is not clear that this would continue to be the case as his tenure and experience with the agency continue.

Section 15-502 of the Law (formerly §3-103(a)) prohibits employees from being employed by entities that are subject to the authority of or contract with their agency (subsection 15-502(b)(1)) and from having any other employment that would impair their impartiality or independence of judgment (subsection 15-502(b)(2)). We have in the past interpreted the term entity as not including units of State government and advised that the strict prohibition of §15-502(b)(1) does not apply to situations involving secondary employment with another State agency. We have, however, advised that the impairment provision of §15-502(b)(2) could apply to employment with another State agency where there is a relationship between the secondary employment and the duties and program functions of the individual or his primary agency that present clear and serious concerns regarding a conflict of interest.

Our Opinion No. 82-15 involves application of these provisions of the Law to higher education agency employees. This opinion was issued to the State Board for Higher Education, one of the predecessor agencies of the MHEC, and directly addressed the question of whether professional employees of the Board could be employed by post-secondary educational institutions subject to the agency's jurisdiction. The Commission advised that employment by such employees with private institutions would be subject to the strict employment prohibition of the Law and would generally be prohibited. Also applying the impairment provisions of the Law, the Commission further indicated that generally "given the breadth of the agency's jurisdiction and the size of its staff (relatively small), ... employment at entities subject to [Board] authority would be prohibited." The Board in that opinion did not have authority over community colleges. Since reorganization to a single higher education agency, however, the MHEC includes community colleges as well as 4-year and private career schools, and this general language would apply to teaching at these institutions as well.

Opinion No. 82-15 dealt specifically with higher education employees, and therefore represents a general principle for application of the employment provisions of the Law to this category of employees. Other advice has also been provided that generally considered the approach to dual State employment, recognizing that in some situations dual employment with two agencies that have a supervisory authority or contractual relationship could be viewed as inconsistent under the impairment provision of the Law. As to community colleges, since they are viewed as State agencies for purposes of the Ethics Law, we have generally considered proposed employment with them under these principles. Teaching employment at community colleges has thus been permitted in several situations, but has been barred in circumstances where, for example, a training director involved in monitoring an agency grant to a community college was not permitted to be a teacher at the college in the program established by the grant, and where an agency's licensing employees were prohibited from teaching the specific course aimed at licensees and specifically required as a prerequisite to licensing. In another situation, the Coordinator of the Motorcycle Safety Program in MVA was not permitted to have secondary employment teaching driver education courses (also subject to MVA authority) at a community college that was also involved in providing motorcycle safety programs directly subject to the employee's program review and authority.

This request is presented by the agency on the Requestor's behalf largely in the context of application the principles of Opinion No. 82-15 to his situation. The request involves his proposed employment with a community college, a State agency, and therefore subject to the impairment prohibition of the §15-502(b)(2) of Law. In considering the previous advice provided regarding teaching activities at community colleges, and the substantial relationships between the Requestor's agency and these institutions, we believe that the general principle prohibiting this activity for employees of higher education agencies should stand. We recognize that the Requestor's current duties are considered to be limited, and that the Department believes that conflicts of interest can be avoided based on his current assignments and position in the agency. We are concerned, however, that the Ethics Law addresses itself to avoidance of the appearance of conflict, and mandates us to construe its terms liberally to accomplish this purpose. Clearly in this situation the Requestor's agency as a general matter has substantial authority over community colleges in its program planning and academic approval role, and has policy and funding functions that relate to competing interests among the many institutions in the State's higher education system. Also, the Requestor's position is in the funding unit that in addition to its funding administration functions, has substantive review responsibilities regarding capital projects at community colleges.

In our view Requestor's employment with an institution interacting so significantly with his agency would result in an impairment that is intended to be prohibited by the Law. This agency was reorganized several years ago to include all higher education functions apparently in recognition of the interrelatedness of these institutions. To draw very technical lines and distinctions between the entities in order to carve out an area where employees could have secondary economic relationships with these institutions would in our view be inappropriate. Moreover, we do not believe proper ethics guidance is provided to employees where reliance is placed on a very technical description of an individual's duties at a particular moment in time to allow secondary employment that would necessarily bring him into contact with others in institutions that have significant interests impacted by his agency and his agency unit. Under all of these circumstances, we believe that the approach taken in our prior opinions prohibiting higher education agency employees from employment with institutions subject to their agency's program and funding authority should apply here to bar Requestor's proposed teaching employment, and so advise the Requestor and his agency.

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

Date: March 5, 1996