(from http://www.dsd.state.md.us/comar/comarhtml/advisoryo/advisoryo.1993.07.htm)

93.07

OPINION NO. 93-7
Three employees of the University of Maryland System have requested advice as to whether they may continue their affiliation with the Baltimore Cable Access Corporation (BCAC), a private corporation that is negotiating a contract with Coppin State College, an institution in the System. We advise that these affiliations are allowable, to the extent that the individuals are assigned this service as part of their official duties, and assuming that they comply in this regard with guidelines set forth below and in prior opinions regarding this type of activity.

This request involves three individuals employed in the University of Maryland System who are affiliated with the Baltimore Cable Access Corporation. The BCAC was established as a private nonstock corporation for the purpose of promoting community access to the cable network system in Baltimore City, particularly by nonprofit institutions. Its establishment in 1982 was supported by many public and private nonprofit institutions, including the City's educational institutions. Its primary function was to develop programs for showing on the public cable channels, to lobby for City activation of the available channels, and to promote the use of the channels by its members. In December 1992 it was determined that the City would contract with BCAC to transfer management of the cable channels available to the City to BCAC. Part of this undertaking was the understanding that BCAC would operate the program on the campus of Coppin State College pursuant to agreement with the College. This agreement is currently being negotiated.

The three individuals involved in this request have all been affiliated with BCAC for several years. One of the individuals is Associate Professor of Communication and Director of the Corporate Communication Program at the University of Baltimore (U of B) and basically is responsible for the administration of the U of B's communications program. The U of B is a member of BCAC and would likely be a user of the cable channels being managed by BCAC. According to the employee, his service on the BCAC Board has been as a representative of the U of B, and this is confirmed by his Dean. The second individual is the Director of Information and Media Services at the Maryland Institute for Emergency Medical Service Systems (MIEMSS), where he develops learning strategies in the emergency medical services area to be directed at health care professionals and the general public. He indicates that MIEMSS is a member of BCAC and would anticipate being a user of the transmission capabilities through the dedicated public channels to be managed by BCAC.

The third employee involved in this request is a Professor of Law at the University of Maryland Law School. He advises that his official functions are primarily academic, involving teaching, in addition to several introductory law courses, the Law School's courses in communications law and computer law. He indicates that though the School of Law is not a member of BCAC and has not in the past generated materials for transmission over the City's cable channels, it could potentially be a transmission vehicle for continuing legal education programs jointly supported by the area law schools and MICPEL, the bar association's continuing education unit.

Section 3-103(a) of the Public Ethics Law (Article 40A, 3-103(a), Annotated Code of Maryland, the Ethics Law) deals with secondary employment by State officials and employees. As we have in many prior opinions advised that service on the managing and operational boards of private entities constitutes an employment relationship for purposes of this provision even though the service may not be compensated (see, for example, Opinions No. 87-1 and No. 91-15), service on BCAC's Board by these three individuals could be viewed as employment with an entity that would be subject to the constraints of this and other provisions of the Ethics Law. This would particularly be an issue given the contractual relationship being undertaken between BCAC and Coppin, an institutional unit of the University of Maryland System.

The Commission has, however, issued several opinions dealing with situations where the service on a private board related to the agency program sufficiently that the agency had properly assigned the individual to service with the private Board as part of his official duties. The first such opinion (No. 80-5) was issued in 1980, and involved a Maryland Port Administration employee whose duties involved setting up a Seafarers' Center that would operate at the Dundalk Marine Terminal to provide services to crews of foreign ships docking at the Port. The Commission approved this individual's service as part of his official duties on the Board of this private organization that would be leasing space from the Port. In Opinion No. 87-13, while service as an official representative would have been allowed, the Commission expressed concern with the individual also having responsibilities as an officer of the private board. Opinion No. 89-9 is a later opinion that summarized the many opinions generally considering affiliations by employees with private organizations.

These and subsequent opinions reflect the general view that service on private boards as part of one's official duties is not outside employment addressed by the employment prohibitions of the Law. To be viewed as official participation, however, this type of service must: be related to official duties, and based on agency assignment rather than independent personal relationship; reflect the officially defined policy of the State and the individual's agency as to substantive matters; not involve any compensation, reimbursement (other than what would be allowable under State regulations) or remuneration; and be undertaken with the understanding that provisions of the Ethics Law involving disqualification, use of prestige and use of confidential information apply to the person's board activities.

As to all three of these employees, supervisors in their agency units have indicated that their BCAC service is related to their official positions. Moreover, materials relating to this request have been reviewed by the System's ethics coordinator, the Vice-Chancellor for Administration, who concurs in the view that service by these individuals constitutes official participation as part of their official duties. The Commission has in the past recognized the agency's role in determining the use of its employee resources and assigning staff to serve with private entities on the agency's behalf. Consistent with this view, and based on the advice of System managers, we conclude that service by these individuals with BCAC as part of their official duties would not be employment prohibited by the Ethics Law, as long as it is consistent with the guidelines set forth above and detailed in prior opinions.

We believe, however, that to be consistent with these guidelines, this service must be as a Board member and not entail service as an officer or otherwise acting in a representative capacity for BCAC, particularly in connection with negotiation or implementation of the contractual dealings with Coppin. The System has attorneys and other managers assigned to represent its interests in this regard, and in our view it would be inappropriate, and inconsistent with their role as System representatives, for other System employees to act on BCAC's behalf. Assuming that these employees are properly assigned this activity as part of their official duties, and as long as this and other Ethics Law guidelines are followed, we advise these employees and the System that their continued affiliation with the BCAC would not be barred by the employment or other provisions of the Ethics Law.

Mark C. Medairy, Jr., Chairman
Shirley P. Hill
Michael L. May
Mary M. Thompson

Date: August 18, 1993