82.46

OPINION NO. 82-46

A dentist with the Preventive Medicine Administration's (PMA) School Dental Health Program (the Dentist) has requested an opinion as to whether he may engage in a private dentistry practice in association with one or more private practitioners.

The Dentist is employed in the Baltimore office of PMA, but lives in Kent County and services four Eastern Shore counties. He is the senior dentist in a School Dental Health Program that involves the transportation of a dental van from school to school throughout the four-county area. The program directly involves only elementary age children, though occasionally, there are referrals from the County Health Department or a higher grade level school. The Dentist, who is not employed by the local health departments, provides general dental health instruction, and provides clinical dental services to children whose parents opt to take advantage of the dental service.

Though any child in the school may be seen through the school dental program, most children actually treated are those whose family income is higher than the medical assistance level but too low to meet private dental costs. Some children are referred to their own private dentists, while others, including those eligible for medical assistance, are provided with a list of area dentists willing to accept children as new patients. No referrals are made to specific dentists except where specialist services are required.

The Dentist wishes to engage in a private dentistry practice in association with one or more private practitioners in the area. He anticipates that he would work in Kent County, where his home is, and where the school dental clinic serves a relatively smaller population of Head Start children only. He indicates that none of the individual practitioners with which he might affiliate engage in specialty work where a direct referral could occur, though a few of them are included on the general list of available children's dentists. He indicates, however, that he would be willing to associate only with someone willing to be deleted from the list if that were deemed necessary by the Commission. Also, he has expressed a willingness to otherwise restrict his activities if the Commission requires it, for example, by not seeing any children at all, or by not seeing any children treated in the school dental program during a one-year or two-year period.

This request raises questions as to the applicability of the outside employment and prestige of office provisions in §3-103(a) and 3-104 of the Public Ethics Law (Article 40A, §3-103(a) and 3-104, Annotated Code of Maryland, the Ethics Law). Section 3-103(a)(1)(i) prohibits an official or employee from engaging in outside employment with an entity that is under the authority of or contracts with his agency. Section 1-201(a) defines a business entity to include "any entity, regardless of form." We therefore believe that a private dentistry practice, however organized, is an entity employment with which is covered by §3-103(a), if the practice is viewed as under the authority of or contractually connected with the Dentist's agency.

The Dentist, along with the other members of any practice that employs him, is licensed by the Board of Dental Examiners, which is part of the Department of Health and Mental Hygiene (DHMH). Moreover, x-ray equipment maintained by dentists is registered with and inspected by DHMH's Division of Radiation Control. In our Opinion No. 81-45 we considered the request of a local health department dentist, whose proposed private practice as a sole practitioner would involve the same authority relationships with his agency (DHMH). We noted there that licensing as a dentist was a requirement for the employee's State job and also concluded that under the circumstances, the relationship between the proposed private practice and the subject's agency was "too remote to be viewed as the type of authority relationship contemplated by §3-103(a)(1)(i)."

We believe that the principle discussed in Opinion 81-45 also applies here, and that association with a private dental practice by the Dentist would not be employment with an entity under the authority of his agency. However, unlike Opinion No. 81-45, the Dentist here proposes to work with other dentists in an established practice, rather than establish his own business as a private practitioner. Thus, he may have less control over actions taken that might bring the practice into a relationship with his agency. Most importantly, we understand that the practices with which the Dentist would associate are providers of care under the State's medical assistance program. This program, administered by DHMH, involves provision of care to indigent patients by dental and other health care practices pursuant to agreements between the provider and DHMH. (See Article 43, §42, Annotated Code of Maryland and Title 10 COMAR 10.09.05.) We believe that this activity results in a contractual relationship between the firm and DHMH and that the Dentist's employment with such entities could therefore be barred by §3-103(a)(1)(i) of the Ethics Law.

Section 3-103(a), however, specifically provides that its prohibitions need not apply where the Ethics Commission determines, by regulation, that the employment does not result in a conflict of interest or the appearance of a conflict of interest. The purpose of this exception, added to the Ethics Law effective June 1, 1981, is to allow the Commission flexibility in applying §3-103(a) where an authority or contractual relationship exists as a technical matter, but is so remote from the official's duties or his agency's program that any conflict or appearance of conflict is unlikely. These regulations became effective August 2, 1982. The content and approach of the exception criteria are set forth in detail in our Opinion No. 82-40. Basically, the regulations list several specified situations where the relationship between an individual's State job and proposed outside activity would be remote, as we view the intention of this amended language. We have evaluated the Requestor's proposed part-time dental practice in light of these exception criteria, and do not believe that his situation would raise issues under any of the provisions set forth in the regulations.

We therefore conclude that the Requestor may be excepted from the prohibition of §3-103(a)(1)(i) and also that his private practice affiliation is allowable provided that it is not barred by the inconsistent employment provisions of §3-103(a)(1)(ii). This section prohibits 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. We have generally read this provision restrictively, applying it where an outside employment relationship raises clear and serious concerns about the ability of an official or employee to carry out his State duties impartially and independently. Opinions No. 81-28, No. 81-41, and No. 81-45.

In this connection, in our Opinion No. 81-45, which also involved a dentist seeking to engage in private practice, we concluded that

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).

That opinion involved an individual planning to practice alone, and therefore likely to have total control over acceptance of referrals or establishment of other relationships with his agency. We specifically declined to rule there on situations where an individual associated with other practitioners. We believe, however, that the same principles apply; to the extent that an individual is able to control the circumstances so that neither he nor practitioners with which he affiliates accept any patients from or have any other relationship with the School Dental Health Program, he would be able to avoid the relationships that would raise issues under §3-103(a)(1)(ii).

The Dentist here has indicated a willingness to affiliate only with other dentists who are not on the referral list developed and distributed in connection with this program, and has stated that neither he nor his associates would accept as patients children (or their parents) who are involved in the School Dental Health Program. He has indicated that he himself would treat no children in his private practice. In addition, the views of the Dentist's agency have been sought, as set forth in the Ethics Commission exception criteria. The agency in response has advised us that the Dentist's employment would not create a conflict or appearance of conflict, provided that he meets the following conditions:

(1) he does not treat any patients that have been seen in the Health Department of the four counties he serves within a year,

(2) that the Dentists with whom he associates do not treat any patients who have been seen in one of the same four county health departments within the last year with the exception of those patients they are already seeing at the time of the association,

(3) he does not associate himself with a specialist who would necessitate direct referral,

(4) the Dentists with whom he associates would have their names removed from health department referral lists, and

(5) his secondary employment does not conflict with his regularly scheduled working hours.

We recognize these restrictions may be burdensome. However, we agree with his agency that they are necessary to ensure that relationships set forth in the exception criteria do not develop in the course of the outside employment, and to ensure compliance with the language of §3-103(a) as well as the purpose of the Ethics Law expressed in §1-102, to prevent conflicts of interest or the appearance of conflict.

The Dentist thus may engage in private practice but must take great care to establish relationships only with other practitioners who are not in any way connected to his agency. He must also, as these relationships develop, continue to be aware of the principles and requirements of the Ethics Law, both in terms of §3-103(a), and to avoid violation of §3-104 of the Ethics Law. This section prohibits an official or employee from intentionally using the prestige of his office for his own personal gain or that of another. In situations such as this we do not believe that this prohibition need be applied as an absolute bar to the proposed employment. The actions suggested by the Dentist to avoid any relationships between his associates and his agency seem to us to reflect a sincere effort and intent to avoid any use of his official position in furthering his private employment or benefiting his associates. To avoid any suggestion of violation of this provision, he should take great care as his as his employment relationship develops to avoid any situation where he would appear to be advancing his private interest through his State position.

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

Date: October 20, 1982