00.07

OPINION NO. 00-07

Advice has been requested as to whether a Maryland State Police Trooper who serves as a duty sergeant in a State Police Barrack may also serve as the part-time elected Commissioner of Public Safety in a local municipality (the City). We advise based on the information provided regarding the interactions between the Maryland State Police and the City that the Trooper's service with the City while he remains at the Barrack would be inconsistent with the employment and other limitations of the Public Ethics Law.

The Maryland State Police is the preeminent law enforcement agency in the State, providing direct law enforcement and specialized services depending on the particular county or municipality involved. It has a major presence in this particular County. Generally the State Police Department has a direct role in major investigative support, specialized units, crime laboratory activities, radio communication systems, criminal justice information systems, and vehicle safety. It also has significant responsibilities throughout the State covering firearms, private detective agencies and canine units employed by local police agencies. The State Police may also provide resident troopers to local jurisdictions as a full or partial alternative to having local police personnel.

The Barrack is a full service barrack serving this County. It has law enforcement functions relating to enforcement of motor vehicle and criminal laws as set forth in Article 27 of the Annotated Code. As such its law enforcement staff have authority to investigate and enforce laws relating to assault, burglary, disorderly conduct, weapons and drug violations, rape, murder, etc., in addition to any violations of motor vehicle laws including drunk driving enforcement, accident investigation, and related matters. The Barrack participates through interagency agreements with the County's Narcotics Task Force and in a Combined Criminal Investigative Unit (C3I) that involves in addition to MSP the County Sheriff's Office and representatives of local police departments in the area, including the City.

The Barrack interacts with the City and other municipalities in a number of ways. First, while MSP officers may have no routine patrol functions within a local jurisdiction, they may travel within a jurisdiction to serve a warrant or issue a summons. Officers have general law enforcement authority wherever they go, and if they witness a crime while they are passing through the jurisdiction or otherwise in a locality, they have authority and the obligation to act. Second, MSP staff may assist the City in response to a preplanned request in connection with a specific event. A third example of MSP assistance to the City may occur on an ad hoc basis when a particular situation arises and additional help is requested of the duty officer for the shift, who would make the decision to send MSP assistance. Additionally, the Barrack may also provide general support services to a locality, including the City. For example, Barrack staff run intoximeters in drunk driving arrests. Also, the City is apparently not currently part of the State criminal information systems, and the Barrack staff therefore handle vehicle tag checks and driver license checks when a driver is stopped by a City police officer. Another consideration is the presence of a substantial State university within the City.

The Requestor is a long-time veteran of the State Police. He is a shift commander/duty sergeant reporting to the Barrack Commander who has overall responsibility for operations of uniformed personnel at the Barrack. The Requestor as shift commander is generally responsible to direct the work of uniformed personnel on duty during the time of his shift, including a corporal who is a first line supervisor and possibly 4 road troopers as well as a civilian dispatcher. In addition to dispatch duties the Requestor assists troopers in connection with arrest activities, helping with fingerprint and photo activities, cataloguing evidence, reviewing probable cause determinations, and generally making sure that the proper arrest process has been followed. He would be the person on duty to dispatch an MSP officer to the scene in a locality in response to a request from a local police officer, and to assign priorities to the extent necessary. The Requestor indicates he is also responsible for intoximeter testing in drunk driving arrests for both State Police Troopers and local law enforcement officers. In these situations contact between the Barrack and police officials of the City is unavoidable.

The Requestor was elected in a June 2000 election to the City Council for this municipality.1 The City's Charter provides for a City Council, stating that the "Council shall have control and supervision over all offices, departments, and agencies of the City Government." The Charter provides for four council members, including a Commissioner of Public Safety to have supervisory responsibility for the Police Department, Fire Department, Electric Lights, and Fire Alarm System. The Requestor was elected to the Public Safety Commissioner Council position. The City has a full- time Chief of Police, who is hired by the Mayor and the City Administrator, and in turn hires all employees in the Police Department with the approval of the Mayor and the City Council. According to the Requestor, the Public Safety Commissioner position entails work on policy and general operational issues, but is not involved in the day-to-day management or direction of the Police Department, and he has no arrest powers by virtue of his elected position. The Mayor of the City also indicates that much of the day-to-day activity and significant policy functions reside in his office. (Note, however, that one policy issue that has apparently existed in the past involved a disagreement between the Mayor and the Requestor's predecessor as Public Safety Commissioner as to the circumstances when the State Police should be requested to provide assistance to the City.)

As examples of some of the kinds of activities he might be involved in, the Requestor has indicated that he is working to improve the computer capability of the Police Department and through a grant is trying to get the City Department a State computer information terminal. Since the MSP is the primary State agency responsible for these information systems, his involvement in this activity would presumably entail his interaction with his State agency. As Public Safety Commissioner, the Requestor says he is also working on remodeling the Department and involved with a grant-funded effort to establish a police substation in the City's public housing unit where he and the Chief of Police would be available to meet with citizens on a regular basis. Again, quite frequently grant programs for these types of programs are funded through the responsible State agency and he could therefore interact in this process with the MSP, which could have an evaluative role in the grant process. He would also generally be responsible to be the liaison for the Council with the Police Department and to take issues regarding the Police Department to the Mayor and Council. The Requestor indicates that he has lived in this area all of his life and indicates that he knows and has worked with the current Police Chief in their respective law enforcement roles for many years.

The primary legal issue presented here arises under the secondary employment prohibitions of §15-502 of the Ethics Law (State Government Article, §15-502, Annotated Code of Maryland). This section bars an official or employee (which includes uniformed State Police officers) from having any secondary employment with an entity that contracts with or is under the authority of their agency (subsection (b)(1)), and from having any other employment that would impair their impartiality or independence of judgment (subsection (b)(2)). For purposes of the strict employment prohibition of subsection (b)(1), the Law specifically defines the term entity to include government entities, and this definition was included in the code revision process specifically to reflect the Commission's long- standing interpretation of this provision to apply to employment with county, municipal and other levels of government. Also, in our Opinion No. 82-41 (see also Opinion No. 86-17, opinions published at COMAR 19A), we advised that agreements setting operational grounds for interactions between entities constituted contracts for purposes of this provision even though there was no provision for transfer of State funds.

In reviewing questions presented regarding political activity of State employees this Commission has consistently advised that service in an elected position would constitute employment with the local jurisdiction that could come within the limitations of §15-502. This was suggested in our first opinion on this subject (No. 80-2), in which the general advice was that political activity (including running for office) is generally permitted for State employees, but that if elected, the position would be employment subject to the Ethics Law requirements. In a later opinion involving a hearing examiner for the Public Service Commission (Opinion No. 85-13), the individual was advised that his service on a County Council would not be permitted, given the nature of the person's constituent responsibilities as an elected member of the County's governing body, as well as the sensitivity of his PSC duties. This advice was based largely on application of the Law's employment impairment section, as it was not clear that there were direct regulatory or contractual relationships between the County and the PSC.

A different approach was taken in a subsequent informal advice matter where an individual employed by the Maryland Environmental Service was advised that he could not if elected serve on the governing body of a municipality that contracted with the MES for his agency's operation of the municipality's water treatment and sewer system. This was based on the conclusion that the contractual relationship brought the situation within the strict employment prohibition and in large part on the Commission's concerns with the individual's responsibilities as a member of the jurisdiction's governing body to avoid involvement in and accountability for its dealings with his agency under its contract. Another informal situation involved an employee of the Comptroller's Office who served on the Baltimore City Council. This was found to be permissible based on the fact of his assignment in his official duties to responsibilities solely in another local jurisdiction.

Two recent opinions have been issued that deal directly with situations involving service by State employees with local units that have a variety of interactions with their State agencies. Opinion No. 00-3, for, example involved a full-time high-level elected official in Baltimore City who was also employed at the Department of Business and Economic Development, a State agency with significant interactions with Baltimore City (27:9 Md. R. 913, May 5, 2000). This opinion is based on the concerns presented by the individual's significant operational responsibilities in the City, as well as the many and substantial ongoing interactions between the City and the State agency. Opinion No. 00-5 (27:16 Md. R. 1575, August 11, 2000) involved an employee in the Department of Natural Resources whose agency had approval and related interactions with a local planning commission where he was an appointed member. Concluding under these circumstances that the local position would thus be barred by the strict prohibition of the Law, we further advised that an exception would not be possible. This was based on our view that, since he would be a local decision maker as to matters subject to his agency review and where his agency could have a role, the relationships were not sufficiently remote to support an exception finding that there was no conflict or appearance of conflict of interest.

These and other formal and informal advice situations have been based on application of the usually applied general principles for interpreting the outside employment provisions of §15-502 of the Law, including both the strict employment /exception provision and the employment impairment limitation. The Requestor's service on the City Council and as Commissioner of Public Safety would be viewed as employment with the City. As a general matter, we are inclined to believe that the interagency agreements involving the City and MSP are contractual, and that the Requestor's service with the City thus comes within the strict prohibition of subsection (b)(1). Also, if the City acquires a criminal information system terminal, then it would need to sign a user agreement with MSP, which is the Statewide manager and operator of the system. Moreover, the impairment provision of the Law has been interpreted to apply in situations where an employment relationship would involve interactions with populations served by one's State agency, or general involvement in activities relating to the State agency programs and job duties, even where strict contract and regulatory relationships are not present. In our view, the Requestor has duties in his State police position that would entail interaction with the City. More importantly, his City functions involve him in policy and operational functions that could impact on the nature and extent of the City's ongoing collaboration with the State in law enforcement matters.

The Requestor's situation thus suggests issues in both employments that lead us, consistent with the two recent and other prior advice situations, to conclude that this dual State Police/City affiliation is prohibited by the employment limitations of §15-502, both as to the strict employment prohibition of subsection (b)(1) (in view of the existing agreements and likely interaction relating to the criminal information system) and the impairment provisions of subsection (b)(2) (in view of the other substantial interaction between the two jurisdictions). We therefore conclude that the Law applies to bar his elected service with the City. We note that language in §15-502(c) relating to the strict employment bar allows the Commission to grant exception in accordance with Commission regulations (published at COMAR 19A.02.01) when it determines that a situation that would otherwise be a conflict under the section would not present a conflict of interest or appearance of conflict. Basically, the regulations consider the relationships between an individual's State agency and duties with the secondary employment, and also take account of the nature of the secondary duties and whether they entail any interaction with the State agency or duties.

We have tended to take application of these criteria seriously in view of the fact that the secondary employment comes within the prohibition, as well as the statutory criteria that there not be a conflict or appearance of conflict. The goal in allowing an exception is to ensure that any relationships between the State and the secondary employment functions are sufficiently remote that a conflict or appearance of conflict is unlikely. For example, as a general matter we do not believe that disqualification from doing one's official State functions is a cure for an inconsistent employment situation under the Law. Nor do we believe that the exception criteria are technical obstacles to be worked around. In our view, allowance of an exception requires a finding that the two relationships are genuinely remote. This is often a difficult finding to make when a situation also presents issues under the impairment provision. Under the circumstances presented here, we therefore advise the Requestor that his dual affiliation as a Trooper assigned to the Barrack and as the City's Commissioner of Public Safety is prohibited by the employment limitations of the Ethics Law.

In some circumstances employment has been allowed involving secondary affiliation with a local government where the remoteness is accomplished by clear geographical distinctions, that is where there is a clear reassignment of a person to a different geographical jurisdiction that does not deal with the local entity. Where this is complemented by an undertaking and ability to avoid any interaction in the local position with the individual's agency, then we have been able to conclude for some positions that there is no employment impairment and that there is sufficient remoteness to support the statutory conclusion that there is no conflict or appearance of conflict.2 There have been some discussions in the processing of this request regarding whether differing State assignments or City functions could change the advice that these affiliations currently result in a conflict. However, no specific facts have been presented for consideration and therefore any impact of such changes is too speculative to consider at this time.

Charles O. Monk, II, Chair
    Dorothy R. Fait
    Michael L. May
    D. Bruce Poole
    April E. Sepulveda

Date: November 8, 2000

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1 Note that the request for this opinion was not made until after the election, despite indications from others that the State Ethics Commission is responsible for advice in such situations.

2Examples of this approach involve the approval of tax assessors whose local affiliation is in a county different from their State assignment. In the two recent opinions discussed above, however, while there were efforts were made to avoid official State duties relating to the local activity, the secondary local activity presented unavoidable responsibilities relating to the individuals' agency and the absence of an undertaking to avoid these types of local functions. In these situations the local positions were not allowed.