06.03

OPINION NO. 06-03
STATE ETHICS COMMISSION

June 29, 2006

We have received a request from a recently hired employee of the Maryland Institute for Emergency Medical Services Systems ("MIEMSS") inquiring whether she may have secondary employment as a weekend driver or ambulance attendant with a commercial ambulance service. We advise the Requestor and MIEMSS, based on the information provided, that the activity is allowable subject to the restrictions proposed by the Executive Director of MIEMSS in his letter in support of this request.

MIEMSS is an independent agency located at the University of Maryland, Baltimore and governed by the State Emergency Medical Services Board. It is the State administrative agency responsible for the coordination of all emergency medical services.(1) The Maryland Emergency Medical Services (EMS) System is a coordinated statewide network that includes volunteer and career EMS providers, medical and nursing personnel, communications, transportation systems, trauma and specialty care centers and emergency departments.(2) MIEMSS oversees and coordinates all components of the statewide EMS. This includes planning, operations, evaluation, and research. In addition to these responsibilities, MIEMSS provides leadership and medical direction, conducts and supports EMS educational programs, operates and maintains a statewide communications system, designates trauma and specialty centers, licenses and regulates commercial ambulance services, and participates in EMS-related public education and prevention programs.

The Requestor was hired in the spring of 2005 as an Associate Administrator in one of the Regional Programs. According to her position description, she is responsible for assisting a Regional Administrator in the coordination of a multi-county system of emergency medical services; assisting with programmatic, administrative and analytical support to the Regional Emergency Medical Services Advisory Council; and serving as a resource and consultant to county governments in the planning and operation of Emergency Medical Services.

The Requestor's potential outside or secondary employer is a commercial ambulance service located in Baltimore County that services facilities throughout the Baltimore Metropolitan area. Commercial ambulance services involve non-emergency transportation of patients from hospitals to nursing homes or from their homes to medical appointments. The outside employer's activities include transportation with basic and life advance support, critical care, and wheelchair services. In addition, the employer may also provide stand-by services for special events. The Requestor would be employed as a driver or an attendant to patients in the ambulance for non-emergency transportation only.

The State Office of Commercial Ambulance Licensing and Regulation ("SOCALR") is a unit within MIEMSS, established for the purpose of licensing and regulating commercial ambulance services in Maryland.(3) SOCALR provides leadership and direction regarding the commercial ambulance industry in Maryland to protect the health, safety, and welfare of persons utilizing these services.(4) The responsibilities of the office include the development and modification of statewide requirements for commercial ambulance services and vehicles and the uniform and equitable regulation of the commercial ambulance industry throughout the State. The commercial ambulance regulations related to non-emergency transportation of patients and were effective October 1992.

Section 15-502 of the Maryland Public Ethics Law, Md. Code Ann., State Gov't Article, Title 15 (Supp. 2005), addresses general restrictions related to secondary or outside employment by State employees. The issue in this request relates to the application of 15-502(b)(1) and (2), which provide that an official or employee may not "be employed by . . . an entity subject to the authority of that . . . employee or of the governmental unit with which the . . . employee is affiliated;" or "hold any other employment relationship if that employment relationship would impair the impartiality and independent judgment of the official or employee." The Requestor's proposed employment relationship with the commercial ambulance company would be employment subject to the strict prohibition of subsection (a)(1)(i) because of the regulatory authority of her agency. The employment could only be allowed if we granted an exception pursuant to our regulations where we determine that there is no conflict of interest or appearance of conflict.(5)

We have addressed the application of our outside employment exception regulation in numerous opinions subsequent to its adoption in 1982.(6) In Opinion No. 82-40 we discussed the history of the statutory exception provision added to the Law in 1981. The Maryland Public Ethics Law as enacted in 1979 did not provide for any exception to the prohibition against outside or secondary employment with an entity either under the authority of or contracting with the employee's agency.(7) In 1981, in part on our recommendation, the exception provision was added to the law to enable us to grant an exception "where such employment does not create a conflict of interest or appearance of conflict." We were required to adopt regulations allowing such employment "to avoid situations where a violation would result from a purely technical application of the elements" of the law "even where there is no relationship between the private . . . employment and official duties."(8) In adopting the regulation, we sought to develop standards or criteria that would define circumstances indicating that the relationship between the employee's State position and duties and the private employment was sufficiently remote that the possibility of an actual conflict of interest or an appearance of conflict was unlikely. The regulations (at COMAR 19A.02.01) include nine such standards or criterion of remoteness.

The standards include, for example, consideration of possible impact of the employee's State duties on the outside employer, and the relationship of the employee to supervisors and other employees, or the unit of the employee's agency that may have authority over or contracts that impact on the outside employer. The criteria also requires consideration of the nature of the employee's proposed secondary employment duties in relationship to the State agency, and that the outside employment should not involve any substantive duties relating to the State agency's authority over the entity or contract with the secondary employer.(9)

In applying the facts of this request to the regulatory criteria, we conclude that the Requestor's secondary employment is sufficiently remote to allow an exception. The Requestor's State duties do not impact on the outside employer nor is she employed in the unit of MEIMSS that regulates her potential outside employer. Her outside employment would not be funded by any State funds, nor does anyone she supervises or who supervises her have any impact or involvement on or with the outside employer.

As part of our review of this matter, we received from the Executive Director of MIEMSS his view that the Requestor's secondary or outside employment would not present a conflict of interest or impair the credibility of the agency. The Executive Director supported the exception with four expressed limitations or understandings regarding the employment: (1) the Requestor will not work in a supervisory or managerial position for the outside employer; (2) the Requestor will work only as a direct provider of EMS care (attendant) or emergency vehicle operator; (3) the Requestor will not perform for the State Office of Commercial Ambulance Licensing and Regulation an ambulance inspection or any other duties related to the regulation of a commercial ambulance service at any time; and (4) should there be a significant emergency event that requires the assistance of commercial ambulance services, the Requestor will respond only as a MIEMSS representative.

We believe these understandings are appropriate and necessary to accomplish the purposes of the Maryland Public Ethics Law to avoid any appearance of conflict. Therefore, we advise that the Requestor's proposed employment is allowable subject to the above-discussed limitations and we further expect that MIEMSS will develop an appropriate system to monitor compliance with the above conditions. Should the Requestor's State duties and responsibilities change in the future, the secondary employment would need to be reevaluated by the Commission.

Julian L. Lapides, Chair
Janet E. McHugh
Robert F. Scholz
Paul M. Vettori

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1 Section 13-504, Md. Code Ann., Edu. Article, Title 13 (Supp. 2005).

2 See www.miemss.org.

3 See Section 13-515 Md. Code Ann., Edu. Article, Title 13 (Supp. 2005) and COMAR Title 30.09.03.02A.

4 See www.miemss.org.

5 See §15-502(c)(1).

6 See, for example, Opinion Nos. 82-40; 82-41; 83-21; 87-21; 88-15; and 90-4.

7 In 1979, the Maryland Public Ethics Law was located in Article 40A. The secondary or outside employment restrictions were in §3-103(a). Code Revision in 1994 placed this provision at §15-502(b).

8 See Advisory Opinion No. 82-40.

9 The Commission's outside employment exception regulations may be accessed through the Internet at www.dsd.state.md.us/comar and have been previously set out in Opinion Nos. 82-40 and 84-14, among others. In view of this access to the regulation, we have determined not to reprint the regulation in this opinion.