An advisory opinion has been requested from the Division of Corrections (DOC) as to whether nurses employed by DOC may be employed by private nursing employment agencies to provide part-time services to DOC facilities during their off-duty hours.

This request is submitted by the Administrator of Health Services for DOC (the Administrator), who is responsible for negotiating contracts on behalf of DOC with private employment agencies that provide nurses to the agency on a part-time basis. Under the contract DOC contacts the employment agency, requesting either a certain number of hours of nursing service, or that one or more nurses be provided for a certain shift at a particular facility. The contract provides that services will be provided at a designated rate per hour. The decision to call in part-time nurses from the contractor is made by the Chief Nurse. The Administrator indicates that use of these contractual services is frequent, though the number of individuals involved may not be substantial; there are usually one or two contractual nurses on duty at any given time at the various correctional facilities, and all of the nursing coverage at Brockbridge Correctional Facility is now being provided through contractual services.

Many of the nurses provided by the contractor are apparently merit system nurses working at DOC as full-time employees and part-time for the private contractor. According to the Administrator, these nurses, because of their grade status, may not be paid overtime to fill in needed hours as State employees. In their secondary employment they serve as employees of the contractor and are paid directly by the contractor rather than DOC. He indicates that, given the rates paid by DOC under its contract, some of the nurses are being paid more for their part-time services than they are paid as State employees. Apparently, many of DOC's nurses seeking secondary employment specifically go to private agencies that have DOC contracts. The Administrator sets out in his request the various problems that DOC has in recruiting nurses for correctional institutions, indicating that it works to the agency's advantage to be able to use its own nurses part-time through a contractor.

The issue raised here is application to the DOC nurses of the outside employment provisions of §3-103(a) of the Ethics Law (Article 40A, Annotated Code of Maryland, as amended Laws of 1981, Ch. 796). This section prohibits outside employment by a State employee or official with an entity that is under the authority of or has contractual relationships with his agency, and also outside employment relationships that would impair the person's impartiality and independence of judgment. The application of this section (prior to its recent amendment) was considered in Commission Opinion No. 81-13, which involved a very similar fact situation. In that case we concluded that outside employment by DOC guards as guards for a private DOC contractor would be improper under §3-103(a). We found there that since the proposed outside employer was a contractor to DOC, the plain reading of §3-103(a) prohibited the employment. The circumstances of Opinion No. 81-13 were also found to represent the type of potential conflict of interest situation addressed by the Ethics Law in general and §3-103(a) in particular.

Given the similarity in facts between Opinion No.81-13 and this request, we believe that the question here is whether there is any basis for finding that the earlier opinion should not apply. In this regard there are some factual differences in these two situations, primarily that the involvement of the contractor with the agency is different. In Opinion No. 81-13, the contractor was the manager of a correctional facility and had management and policy responsibilities both as a supervisor of the employees and as an entity regulated by DOC. In this request the contractor appears to be a vendor only, providing nurses who are in turn responsible to personnel at DOC.

The contractor here, however, does have a financial relationship with DOC and has an employment relationship with the nurses provided by it to DOC. The nurses, though not directly answerable to the contractor in the performance of their duties, are employees of the contractor, and have some obligations to it, as well as an interest in remaining a part of the contractor's pool and available for other jobs in addition to DOC work. Also, especially where contractual salaries are higher than DOC salaries, the nurses have a clear and direct personal economic interest in continuing the contractual relationship between DOC and their secondary employer.

It is therefore our conclusion that the factual situation presented here also raises the concerns contemplated by the Ethics Law as applied by us in Opinion No.81-13. We do not believe that the recent amendments to §3-103(a) alter the approach taken in this Opinion. (The employment provisions of §3-103(a) were amended by adding an inconsistent employment provision prohibiting employment relationships that would impair a person's impartiality or independence of judgment. Additionally, exception authority not involved in this request was added to the Law.) We therefore conclude that participation by the DOC nurses in the provision of nursing services by a private contractor would constitute a violation of §3-103(a) of the Ethics Law.

Mr. Belgrad excused himself from consideration of this request.

Reverend John Wesley Holland
    Betty B. Nelson
    Barbara M. Steckel

Date: July 22, 1981