81.41

OPINION NO. 81-41

An advisory opinion has been requested concerning whether a social work clinician for the Cecil County Department of Social Services (the Employee) may engage in outside employment as a social work consultant for a local nursing home.

This opinion is requested on behalf of the Employee by an Assistant Attorney General in the Department of Human Resources (DHR). The Employee specializes in human growth and development and clinical therapy, and has a Master's degree in clinical social work. He is employed as a clinician at the Cecil County Department of Social Services (DSS). He indicates that his primary duties involve his providing individual or family therapy in cases referred by a DSS case worker. He also provides consultant-type services within the agency (such as serving as a member of the foster care team) and represents the agency on State committees and task forces and in DSS in-service training programs. He describes his agency as dealing with adult and family services, covering the whole gamut of child and public welfare.

The Employee does not believe that his official responsibilities impact on or are affected by his proposed outside employment, which would involve his serving as a licensed social work consultant for the Laurelwood Nursing Home in Elkton, Maryland (Laurelwood). He indicates that he would work primarily with geriatric patients, providing counseling and therapy, and would also review treatment plans. His job would not involve any influence or input in Laurelwood's admissions process. The Employee indicates he was referred for this position through the former incumbent, who is a personal friend, and another colleague with whom he went to graduate school.

Counsel for the DHR also indicates that there is little relationship between the agency and the Employee's proposed outside employer. The Department of Social Services has a broad program involving general public assistance, community home care services, adult protection programs, and child welfare and foster care programs. DHR Counsel indicates, however, that neither DSS nor DHR regulates nursing homes, nor are referrals made to such facilities. She indicates that the philosophy and thrust of DSS's programs is to provide care to persons in their homes and thus avoid inappropriate institutionalization of individuals. She indicates that if a need for institutional care becomes apparent in the process of DSS assistance efforts, then the case would be sent to the Department of Health and Mental Hygiene (DHMH); further health-related action, including any referral to an institution, would be made by that Department. The DSS issues cards certifying to a person's financial need status, which are used in applying for medicaid benefits. Otherwise, there is apparently no contractual or official relationship between DSS or DHR and the Employee's proposed outside employer.

The Laurelwood Nursing Home is a facility licensed by the Division of Licensing and Certification in DHMH. It is a comprehensive care facility for persons who are aged and infirm, and has a patient population of 130, its license capacity. Laurelwood's Administrator indicates that patients are certified as medically eligible by the Delmarva Foundation. All of the facility's patients are adults. It may accept patients as young as 14 years but has never done so; it once had a patient aged 30 and has had a few in their 50's, but generally all of its patients are elderly. Approximately 70 percent of Laurelwood's patients are medicaid recipients.

Laurelwood's Administrator states that as a business matter the facility hopes to reduce its percentage of medicaid patients. Thus it has a policy not to accept persons who are medicaid patients at the time of admission. Given this policy of accepting medicaid payments only after an individual has been a private patient for a year, Laurelwood does not generally have referrals from public agencies. The facility, according to the Administrator, thus does not generally have dealings with social service types of agencies. Most of the facility's patients are referred from hospitals or come directly from home care situations through word-of-mouth referrals.

This request raises issues under the outside employment provisions of §3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law).1 Section 3-103(a) prohibits an official or employee from being employed by an entity that is under the authority of or has contractual relationships with his agency (§3-103(a)(1)(ii)). It also prohibits any outside employment that would impair his impartiality or independence of judgment (§3-103(a)(1)(ii)). Section 3-103(a)(1)(i) would bar the Employee's proposed outside employment if Laurelwood either contracts with or is under authority of DSS or DHR. According to DHR Counsel, nursing home facilities are not regulated by the Department; nor, apparently, do either DHR or DSS have any service or other contracts with Laurelwood.

Thus the only basis for an authority relationship between Laurelwood and the Employee's agency is the DSS medicaid certification responsibility. This function, however, is characterized by DHR counsel as primarily ministerial. Staff in the DSS Income Maintenance Division use financial information available in their program along with a formula established by DHMH and issue the medicaid cards as a service to the health agency. Further, DSS staff deal in this certification task only with individual card holders rather than with facilities such as Laurelwood. Neither DSS nor DHR have any other role in administering the medicaid program, nor do they make any monetary payments to either patients or providers of care. We therefore do not believe that an authority or contractual relationship exists between Laurelwood and the Employee's agency. Thus we conclude that his proposed outside employment would not be a violation of §3-103(a)(1)(i) of the Law.

The inconsistent employment provisions of §3-103(a)(1)(ii), however, involve a more general prohibition against any employment that would impair one's impartiality or independence of judgment, even where there is no authority or contractual relationship. We considered application of this provision in our Opinion No. 81-28, which involved a Motor Vehicle Administration investigator's operation of a private detective agency. In finding this activity not to be a violation of subsection (a)(1)(ii) we reviewed the intent of the subsection and its relationship to subsection (a)(1)(i). We concluded that

it should be read primarily as a complement to the provisions of §3-103(a)(1)(i). We view it as covering those situations where the authority or contractual relationships of §3-103(a)(1)(i) may not be met, but where the relationship between official duties and outside activities gives rise to clear and serious concerns as to the ability of the official or employee to engage in the outside activity and still maintain his impartiality and independence of judgment in carrying out his State responsibilities.

We do not believe that the situation presented by this request raises the types of concerns intended to be addressed in subsection (a)(1)(ii). As a technical matter, Laurelwood could be financially impacted by DSS's issuance of medicaid certification cards. However, this DSS function has been described to us as purely ministerial. It is done by a DSS Division which, in a medium sized agency such as the Cecil County office, is physically and administratively separate from the Social Services Division where the Employee works; and it does not directly involve any particular nursing homes or health care providers such as Laurelwood.

Moreover, the focus of the Employee's official duties is on family and child welfare counseling, rather than elderly persons who might be referred to the Laurelwood facility. In fact, all of the parties interested in this request indicate that the possibility of a referral or overlap between the Employee's DSS counseling and his Laurelwood work is remote. Under these circumstances we conclude that the Employee's acceptance of the Laurelwood position would not present a violation of §3-103(a)(1)(ii) of the Ethics Law.

Herbert J. Belgrad, Chairman
    Jervis S. Finney
    Reverend John Wesley Holland
    Betty B. Nelson
    Barbara M. Steckel

Date: November 4, 1981

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1 Given the private source of the Employee's referral for the Laurelwood position, and the unlikelihood of any DSS activities involving Laurelwood, in which he would participate, 3-104 and 3-101 of the Ethics Law do not appear to be involved here.