82.30

OPINION NO. 82-30

An opinion request has been received concerning whether an individual who serves as a program administrator (the Administrator) in the Department of Health and Mental Hygiene (DHMH) may also serve in a part-time capacity as Executive Director of an independent commission within the Department.

The Administrator is involved in DHMH's management of the State's kidney disease program. This program is established in Article 43, 781—790, Annotated Code of Maryland, and is jointly implemented by the Kidney Disease Commission (the Commission) and the Kidney Disease Program within the Department. Program policy and direction is established by the Commission, which establishes standards of care and treatment for renal disease, institutes and supervises education programs, and annually evaluates the program. It has the power to adopt rules and regulations. The program established by the Commission is implemented by a program office within DHMH. The Department is responsible for assuring compliance with Commission standards, collecting and disbursing funds for the program, and advising the Commission of program progress and the need for program changes.

The Administrator has been assigned by the DHMH Secretary to carry out the Department's implementation duties under the Kidney Disease Program. He also serves as Executive Director of the Commission, as a result of an agreement between the Commission's Chairman, and an Assistant Secretary in DHMH. This arrangement is viewed as economically logical, given the Administrator's substantive expertise and the fact that the Commission does not require a full-time Director. It is noted that many of his agency administrative duties involve working with other programs (such as the medical assistance program), within standards established in those programs. The Administrator indicates that he spends about 50% of his time as head of the Kidney Disease Program, and approximately 25% as the Commission's Executive Director. The remainder of his time involves the Home Dialysis Program.

The Administrator is paid a single State salary for all of his responsibilities; his compensation is not increased to reflect his Commission duties. DHMH personnel have inquired, however, as to the ethical propriety of his serving in both of these capacities. The Commission is an independent policy-making entity, and the Department is responsible to it for implementation of the program. Concern has been expressed that a possible conflict may exist since the Administrator is in the apparent position of representing the Department to the Commission and the Commission to the Department. This concern could potentially present issues under §3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, The Ethics Law), which establishes limitations on employment by State employees and officials.

We have reviewed this situation and the provisions of the Ethics Law, however, and we do not believe that the circumstances presented here raise ethics issues under §3-103(a). As a matter of general policy, we believe that this type of dual work assignment is not prohibited employment covered by the Ethics Law. In the past, we have tended to act with restraint in passing upon the applicability of the Ethics Law to matters such as this, as we consider work assignments to be matters of departmental policy based on money, manpower and resource considerations, and general allocation of resources to accomplish an agency mission. For example, we considered a similar issue in our Opinion No. 80-5, which involved assignment of an employee in the Maryland Port Administration to sit on the Board of Directors of a private entity affiliated with the agency. We concluded there that the service was allowable so long as it was part of the employee's official duties.

Opinion No. 80-5 involved a private entity, whereas in this request the Commission is part of the Administrator's Department. We recognize that to some extent the agency and the Commission are assigned different roles in the program. However, their mission is the same, and the Commission functions administratively as part of DHMH. We therefore believe that the Administrator's assignment to the Commission can be viewed as an addition to his existing duties as Administrator of the Kidney Disease Program. We view this assignment as a matter for agency personnel decision. If the Commission and agency officials determine that such an assignment represents an effective assignment of agency resources in accomplishing program goals, and that the Administrator's dual service would not compromise program goals, then we do not believe that any Ethics Law proscription would require a contrary decision.

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

Date: July 21, 1982