81.45

OPINION NO. 81-45

An opinion has been requested concerning whether a dentist in a County Health Department may operate a part-time private practice.

The Requestor is a Dentist III serving as the Director of Dental Health at a County Health Department, which is a State entity within the Local Health Administration of the Department of Health and Mental Hygiene (DHMH). He indicates that a substantial part of his job is the direction and coordination of the county's clinical dental program. His responsibilities involve hiring and supervising personnel (including 4 part-time dentists) and general administrative duties. He also is involved in the school dental program under which his office, at the request of a school, may conduct oral hygiene education sessions or dental health screening programs. These screening programs may result in communications with parents, though the office does not make specific referrals to private practitioners.

According to the Requestor, most of the clinic's patients are low-income persons who are treated at the clinic because they cannot afford a private practitioner. Patients are charged on a sliding fee scale and those who can afford private services are encouraged to go that route. He states that most of the patients treated at the clinic are fully treated there and referrals to private dentists are not usual. Where a patient needs orthodontic or other special work, he is given the names of three specialists, none of whom have any relationship with the county health office.

The Requestor wishes to establish and operate a private dentistry practice. He indicates it would be a purely clinical practice and that he would develop a clientele by word of mouth, including primarily friends and family. He does not envision any potential referrals through his State position or any other relationship with the County Health Department. There are four other dentists who provide services to the County Health Department, all of which are in private practice. These persons, however, provide clinical service only, on an hourly contractual basis. The Requestor's particular county agency has a longstanding policy prohibiting professional personnel (such as physicians, social workers and therapists as well as dentists) from having outside practices. This appears to be based on general personnel policies and the view that the agency's health professionals often must be available in non-working hours, and also the view that a private practice would interfere with the ability of such professionals to interact effectively with the community and various community groups. There appears to be no Statewide DHMH policy as to such activities in the local health departments; some agencies appear to allow outside practices under limited circumstances.

The issue here is whether and to what extent 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) would operate to bar the Requestor's proposed private practice.1 Section 3-103(a)(1)(i) would prohibit such a practice if it were viewed as resulting in his having an interest or employment with an entity under the authority of or contracting with the Requestor's agency. We have generally (especially in the financial disclosure program) viewed sole proprietorships such as private practices or consulting operations as business entities. As the Requestor would either be an employee of the practice or have an ownership interest in it, his practice would be barred if it is under the authority of or contracts with his agency. The Requestor is a dentist licensed by the Board of Dental Examiners, which is part of the Department of Health and Mental Hygiene (DHMH). The Board's general authority is directed to regulating a licensee rather than a dental practice as a business entity. The Board does not issue business permits, or generally inspect equipment or otherwise regulate the practice as a business. It may, however, revoke or deny an individual license based on any of several factors relating to how a licensee handles his practice. Also, the Division of Radiation Control under DHMH's Assistant Secretary for Environmental Programs, registers and inspects dental x-ray equipment. There would not appear to be any actual or potential contractual relationships likely between the Requestor's proposed practice and his County Health Agency or DHMH.

Since there appears to be no contractual relationship here, the question is whether the potential DHMH regulatory functions would bring the Requestor's private practice under the authority of his agency as contemplated by §3-103(a)(1)(i). It should be noted that neither of these functions is carried out by the local health department. Further, the regulation of the Requestor's activities as a dentist relate to him as an individual member of a general class of persons subject to licensure by the Board, rather than to a private practice as a business entity. (It should be noted also that being licensed by the Board as a dentist is also a condition of the Requestor's State employment.) Moreover, given the limited resources of the Department's radiation inspection division, the Requestor would be expected to have limited and infrequent contact with DHMH as a result of his ownership and use of x-ray equipment in a private practice. We believe, under all these circumstances, that the relationship between a private practice of the Requestor and his agency is too remote to be viewed as the type of authority relationship contemplated by §3-103(a)(1)(i). We therefore conclude that establishment by him of a private practice would not in itself constitute a violation of this section of the Ethics Law.

Section 3-103(a)(1)(ii) of the Ethics Law additionally prohibits any outside employment that would impair an official's or employee's impartiality or independence of judgment even if there is no authority or contractual relationship. The Commission has considered this provision in its Opinions No. 81-28 and 81-41 and generally read it narrowly. It has been viewed as a complement to §3-103(a)(1)(i) to deal with situations where a clear and serious concern exists as to the ability of the official or employee to engage in the outside activity and still maintain his impartiality and independence of judgment, even where an employee's agency does not contract with or regulate his private employer.

We do not believe that the circumstances presented here fit within the prohibition intended by §3-103(a)(1)(ii) of the Ethics Law. We note that our predecessor agency (the Board of Ethics) in implementing a slightly broader inconsistent employment provision, prohibited a dentist in a county health department from engaging in private practice in association with a group of dentists who were on the referral list for work from the employee's agency. We do not here comment on how §3-103(a)(1)(ii) would impact on a private practice in a group association as in this situation. The Requestor here has indicated that he would not accept referrals, and as an individual practitioner, he would appear to have complete control over this. In the absence of referrals, or any other relationship between a private practice and the local health department where the Requestor is employed, we do not believe that a private practice presents a situation where an employee's impartiality or independence of judgment will be impaired as contemplated by §3-103(a)(1)(ii).

We wish to make clear, however, that our views regarding the strict application of the outside employment provisions of the Ethics Law do not necessarily limit the personnel prerogatives of agencies in establishing more restrictive rules. In fact, §1-102 of the Ethics Law specifically recognizes that agencies may apply more restrictive guidelines. We understand that the Requestor's local agency currently has an administrative policy prohibiting outside practices. There are also other agencies that have strong policies flatly prohibiting private practice by their full-time professional staff. We do not comment here on the policy of the Requestor's agency, except to note that it is an administrative and personnel matter for determination by the agency in view of its program mission and personnel situation.

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

Date: December 1, 1981

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1 Sections 3-101 and 3-104 could be potentially applicable; the Requestor should take care to avoid official participation in any matter where he would have an interest or which would involve his practice as an entity (§3-101), and should also avoid situations that could be construed as using his official position for his own benefit (§3-104). It does not appear, however, from the facts presented here, that these provisions would necessarily operate to prohibit such a practice entirely.