03.02

OPINION NO. 03-02

The Commission has been asked to advise whether an Assistant to the Governor for Public Safety Affairs may continue to serve on the Board of Directors of a county lodge of the Fraternal Order of Police (hereinafter "lodge" or "county lodge of the FOP"). For the reasons set forth below, the Requestor's continued service on the Board is not permissible under the Maryland Public Ethics Law, Md. Code Ann., State Gov't Title 15 (Supp. 2003) while he is employed by the State in his current position. He may continue to be a member of the county lodge and volunteer his time and services provided he does not use State time, resources and materials, or the prestige of his State office.

The Requestor assumed his present position as Assistant to the Governor for Public Safety Affairs upon the Governor's inauguration on January 15, 2003. He has liaison duties to federal, State, and local law enforcement agencies, public safety labor organizations, and fraternal orders of police. According to his position description, his primary responsibility is to provide "a direct line of communication between the Governor and the aforementioned agencies, organizations and offices." The position description includes the following statement:

. . . Liaison will include meetings with the Board of Directors of the Maryland Troopers Association, attending State FOP Board meetings and attending meetings of the local lodges of the MTA and FOP . . . .

He also has duties associated with the Homeland Security Office, the Governor's Office of Intergovernmental Relations, and the development, design and implementation of new public safety programs.

The Requestor retired from a county police department in 1995. He has been a member of the county lodge of the FOP for 28 years. For the past twelve years he has been an elected member of the Board of Directors of the lodge. The Board is the governing body of the county lodge, and acts on labor contract negotiations, budget and personnel issues, and financial expenditures. The lodge also has a political action committee and the board approves campaign contribution distribution. The lodge is one of sixty-six local lodges of the FOP in Maryland, all of which are subordinate to the Maryland State Lodge of the FOP.

The Public Ethics Law includes provisions that restrict secondary employment of officials and employees. Section 15-502(b)(1) provides that employees may not have employment with an entity subject to the authority of the employee or the governmental unit with which he or she is affiliated. It also prohibits employment with entities negotiating or participating in a contract with the employee's governmental unit. Section 15-502(b)(2) prohibits secondary employment that would impair the impartiality and independence of judgment of the employee.

We have viewed service on boards of directors of private non-profit and for profit entities as "employment" for the purposes of the secondary employment restrictions in §15-502. We have stated in several formal published opinions (Opinion Nos. 02-2, 87-1, 86-16, 85-19, and 83-23) that non-compensated service on the board of directors of a private entity constitutes employment for the purposes of §15-502. In making our determination as to whether membership on a board of directors constitutes "employment," we have looked to the substance of the employee's relationship with the outside entity rather than the existence or amount of compensation. If an employee holds an office, directorship, or other position of trust with an entity, he or she has a fiduciary duty to the organization and would reasonably be expected to have also personal loyalty or commitment to the goals of that entity. It is the fiduciary duty to a private entity resulting from board membership that presents the possibility of conflicts of interest with one's public duty. We have noted that the citizens of the State should be able to expect public officials and employees to serve and owe their sole allegiance to the State (Opinion No.80-4).

The County FOP Lodge does not have contractual or authority relationships to the Office of the Governor and therefore the strict employment restriction of §15-502(b)(1) does not apply to bar the relationship. However, the impairment provision of §15-502(b)(2) applies and bars the service. We have viewed this section as intended to address situations where the strict contractual and authority relationships of subsection (b)(1) do not exist, but where the circumstances present a clear and serious concern that there is an actual or apparent conflict of interest. Since the provision by its terms deals with impairment of impartiality, the approach has been to look to an employee's duties and job functions, in order to determine whether his performance may be impacted by the outside affiliation. We believe this general approach is required in view of the public policy concern about appearance of conflict (§15-101(a)(2)) and our mandate to construe the Law liberally in order to accomplish its purposes (§15-101(c)).

We previously have advised that service on the board of a variety of human services and provider entities is barred for individuals in the Department of Human Resources and other agencies involved in program development or provision of services to individuals who are also served by the providers. (See for example, Opinion Nos. 87-7 and 90-16.) Similarly, the inconsistent employment provision has barred secondary activity where an individual would interact in private work with entities or individuals with which he or she would be expected to associate as part of his or her official duties. Opinion No. 85-6, for example, involved a classification counselor in a State prison who wanted to have a bail bond business. This was not allowed because of the sensitiveness and discretionary aspects of her duties in the prison and the overlapping population in the criminal justice system, which increased the possibility that she could see prisoners who had been in some way affiliated with her bail bond business. In a similar case (Opinion No. 85-22) a vocational rehabilitation counselor was prohibited from having a consulting relationship with insurance companies who could be expected to be appearing in workmen's compensation cases as adversaries to him on issues involving rehabilitation plans.

In considering the Requestor's situation, we note that his State responsibilities include serving as liaison for the Governor to all law enforcement agencies, public safety organizations, and fraternal orders of police in the State. His position description includes a statement that the liaison activities will include meetings with Boards of Directors of local lodges of the Maryland Troopers Associations and FOP. His private personal service on one local FOP lodge board creates the appearance of possible impairment and also suggests the application of the prestige of office provision in §15-506 of the law.¹ His service on the Board of Directors of the county lodge of the FOP may create the perception of favoritism, particularly in the eyes of individuals associated with other FOP lodges that do not have State public officials on their boards. The prestige brought by the Requestor's service on the Board, may create the perception that other State officials would look more favorably at that particular lodge because of his State position. Additionally his responsibilities as a Board member may also bring in the prestige of his position with the Governor's office. He indicates that the Board casts votes on contract negotiations, represent members in internal police grievances, and oversees budget issues. His Board duties could involve contacts with the County Police Department with whom he has State duties as the liaison of the Governor's office.

In making the determination that the Requestor should resign from the board of directors, we do not impugn the Requestor's personal integrity or his personal and professional standards of ethics.² We believe, however, that the impairment provision of the law requires such action to protect the credibility of his State position and to avoid an appearance of a conflict of interest.

  Dorothy R. Fait, Chair
     Ava S. Feiner, Ph.D.
     Julian L. Lapides
     D. Bruce Poole
     Robert F. Scholz

Date: November 20, 2003

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¹ Section 15-506 provides that a person should not use the prestige of his or her position for personal private gain or the gain of another.

² In his previous employment with the U.S. House of Representatives as an aide to a congressman, the requestor received an opinion from the Committee on Standards of Official Conduct that allowed him to serve on the board of directors of the County FOP lodge.