82.47

OPINION NO. 82-47

An opinion has been requested concerning whether the Chief Psychologist at the Maryland House of Correction may work for Baltimore City Hospital as an employee of the Chesapeake Physicians Professional Association (CPPA).

This request was presented by the Division of Correction (DOC) in the Department of Public Safety and Correctional Services (DPSC). It involves the outside employment of the Chief Psychologist (the Psychologist) at the Maryland House of Correction in Jessup, Maryland (Jessup); he has been employed at Jessup since 1976. His duties are primarily clinical with some supervisory responsibilities. He indicates that he has no role in administrative and contract decisions, though the Program Services Office in DOC may occasionally consult with him about general clinical matters. The Psychologist states that he has very little dealing with his counterparts in other DOC facilities. One exception to this is that his office may (pursuant to federal court order) be involved in referrals of emotionally disturbed Jessup inmates to the Maryland Penitentiary in Baltimore (Md. Pen.), as it has more complete treatment facilities for such persons.

The Psychologist's outside employment is at the Baltimore City Hospital (BCH). This affiliation apparently grew out of his internship activities at the hospital, and pre-dates his employment with the State. The professional services at BCH are provided by a professional physicians association (CPPA), while the hospital (which is a Baltimore City hospital) is managed and otherwise administered by a City Board. The Psychologist states that he entered into a contract with CPPA after completing his post-doctoral work in Boston, to provide consulting services to BCH's Acute Psychiatric Unit for a set hourly fee. He indicates that he provides purely clinical services to BCH only and has no management or other involvement with CPPA. He indicates that he discussed his BCH employment with DOC at the time he was hired and accepted the State position only on the understanding that he could continue this affiliation.

In addition to its contract with BCH, the CPPA has other contractual relationships to provide professional services to institutions. One of these contracts was created in 1980 and involves CPPA's provision of health care services to the Md. Pen. This contract is between CPPA and DOC. According to Counsel to the DPSC, the contract was competitively bid and does not have "anything whatever to do" with the Jessup facilities. The Psychologist states that he has not in any way been involved in the contractual or administrative decisions relating to the Md. Pen. contract, and this is confirmed by the DPSC counsel. He further indicates that any contacts between his office and the Md. Pen. concerning the referral of emotionally-disturbed inmates are handled by others in his office.

The issue here is application of the outside employment prohibitions of §3-103(a)(1)(i) of the Public Ethics Law (Article 40A, §3-103(a)(1)(i), Annotated Code of Maryland, the Ethics Law). This section prohibits outside employment by an official or employee with an entity that has or is negotiating a contract with his agency, but allows the Ethics Commission, by regulation, to grant exceptions to this general rule. The CPPA contract for Md. Pen. health care services is with the DOC, which we consider to be the Psychologist's agency. (See our Opinions No. 80-11 and No. 80-13.) It is thus our view that CPPA's contract with DOC results in application of §3-103(a)(1)(i) to bar the Psychologist's outside employment with CPPA.

This situation is similar in some ways to those presented in two earlier requests involving outside employment of DOC employees. Opinions No. 81-13 and No. 81-30. These opinions involved situations where some relationship existed between the employees' official duties and their outside employer. They were the basis of DOC's establishment of a regulation generally forbidding outside employment with DOC contractors, and gave rise to the initial agency concerns expressed in this request. This situation, however, involves circumstances where the relationship between the employee's official activities and his private employer is significantly less direct. We have therefore considered whether it would be appropriately excepted from the §3-103(a)(1)(i) restrictions in accordance with our recently promulgated outside employment exception criteria. COMAR 19A.02.01, 9:15 Md. R. 1517 (July 23, 1982). 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, they implement the statutory criteria that exception to the general prohibition be allowed "where such employment does not create a conflict of interest or the appearance of conflict." The regulations list several circumstances where the relationship between an employee's State agency and his private employment is so remote that a conflict of interest or appearance of conflict is unlikely, even though the outside employer contracts with the agency as contemplated in §3-103(a)(1)(i). We have reviewed the Psychologist's employment with BCH in light of the criteria, and we do not believe that this employment raises issues under any of the criteria set forth in the regulations. We therefore conclude that the Psychologist's BCH employment may be excepted from the prohibitions of §3-103(a)(1)(i).

Also, given the limited relationships between the Psychologist's provision of clinical services to Jessup and CPPA's services at the Md. Pen., we do not believe that this employment must be viewed as "inconsistent employment" under §3-103(a)(1)(ii) of the Ethics Law. The outside employment situation presented here does not, in our view, raise clear and serious concerns about the Psychologist's ability to properly carry out his official duties. (See our Opinions No. 82-42 and 81-28 for discussion of application of this provision.) We therefore advise the Psychologist that his employment with CPPA at BCH may continue as described without violation of §3-103(a)(1) of the Ethics Law.1

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

Date: October 20, 1982

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1 In consideration of this request the views of the Psychologist's agency were sought. The agency's reaction to this particular situation was not clearly expressed, though it should be noted that his affiliation with CPPA was apparently disclosed and considered in connection with the Psychologist's initial employment with the agency. He should be aware, however, that if the agency is concerned about the impact of this CPPA employment on particular agency administrative or personnel matters, the Ethics Law specifically allows in §1-103 for enforcement of more restrictive agency provisions.