An opinion has been requested from the Department of Human Resources (DHR) as to whether four employees of the Baltimore City Department of Social Services may establish a private consulting business involving a general program area related to their official duties, but a different client and geographical population.
This request is presented by an Assistant Attorney General from the Department of Human Resources on behalf of four employees in the Baltimore City Department of Social Services (the Department). These employees are all licensed social workers in the Department's child abuse program. Two of them are staff social workers in the Sexual Treatment Program. A third employee supervises them as Director of this program; she is in turn supervised by the fourth employee who is Chief of Continuing Services. All four work in a counselling program for families having abused children. The program is a fully State-funded program generally involving treatment that includes individual counselling as well as group sessions for fathers, mothers, and children.
According to the Director of the Department, the program does not directly focus on adults who have been abused as children. He states that this situation may be peripherally involved where a parent in a family counselling situation has been abused, or may also surface in the Department's Adult Protection Program where an abused adult may reveal that he has also been abused as a child. The Department does not have a program that specially focuses on this client population. The Director indicates, however, that the Department is a broad-based social services agency that is part of a large State Department. Also, given the existence of these services throughout the State and the fact that people and cases move, there is substantial cross communication to other geographical jurisdictions. Social workers involved in programs such as this may make referrals to various public or private agencies not only in Baltimore City but in other geographical areas.
These four employees propose to establish a private consulting service to provide counselling to Baltimore County adults who were abused as children. They intend to decline any Baltimore City clients and work only with adults seeking help for themselves in view of their past experience. The group indicates it does not anticipate having clients who are involved in current abusive family situations. They have not made any final decisions or plans of operation, though they apparently intend to seek clients through developing a mailing list of public and private entities (partly by referral to the yellow pages) who would make referrals of clients to them. The employees express their view that these groups are unlikely to be the same ones with which they would be likely to have contact on behalf of the Department, since the client problems and the counselling specialties and focuses are different. The Director of SSA agrees with this view, noting that referral sources for the different types of clients are unlikely to overlap significantly.
The director of the Department also agrees with this assessment, despite his recognition that Department employees may have significant cross communication with their counterparts in other agencies. He expresses his view that this proposed employment would not be a problem for the agency, so long as there are guidelines set out ensuring that the employees do not advertise based on their agency affiliation, and they are clearly advised that they may not use any agency information on particular clients or cases to further their private activities. Also, the supervisory relationship of these employees is not viewed by the Director as a bar to their establishing this private business connection; the Department has not generally limited outside economic relationships among employees. The Director believes agency personnel procedures and administrative measures for evaluating productivity are adequate to control any effects that private business ties would have on the agency's personnel.
The primary issue here is the application of 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). Subsection (a)(1)(i) of this provision deals with employment with an entity under the authority of or having contractual dealings with an individual's agency. The employees have indicated that the consulting practice would not have any dealings with the Department or DHR. They expect that clients would pay for their services with insurance or other private funds; they are not aware of any public funding (either from DHR or otherwise) for this type of service. SSA personnel confirm that there are no purchase of care type programs that might be viewed as a source of funding for this activity. Also, while each of the individual employees must be licensed as a social worker (by the Board of Social Work Examiners in the Department of Health and Mental Hygiene), there do not appear to be any requirements, particularly DHR requirements, for licensing of the firm itself. Under these circumstances, we conclude that the technical criteria of subsection 3-103(a)(1)(i) do not apply.
The issue under §3-103(a), then, is application of the inconsistent employment provision of subsection (a)(1)(ii), which bars any employment that would impair an employee's impartiality or independence of judgment. We have considered this provision on several occasions. (See, for example, our Opinion No. 82-21, and the Opinions cited therein.) Generally, it is viewed as a complement to subsection (a)(1)(i), barring employment where the relationship between private and official activities raises serious concerns as to an employee's ability to impartially carry out his State duties. In reviewing this request we have considered application of this provision in two contexts: first, with regard to the substantive relationship of the employees' proposed private activities and their Department duties, and, second, evaluating the impact of the employees' private activities on their Departmental supervisory relationships.
The four employees here would be working in the same general program area (sexual abuse) as their State program, and are employed in a broadly based social services program that involves other jurisdictions as well as relationships with public and private entities. On the other hand, the particular specialty and client population for their private effort is different from their official specialty, and they propose to work in another geographical jurisdiction. Though on the surface they might appear to be expected to be interfacing with the same private agencies that they see in their State job, both they and Department and SSA managers agree that the differing specialty and client population limit this possibility. It is pointed out that the focus of the Department's program is the protection of children, and that therefore contacts with other private and public entities are likely to be with schools, neighbors and others unrelated to the sources who are likely to refer adults having general problems relating to prior abusive experiences.
We believe that this request presents issues similar to those raised in our Opinion No. 81-28, one of the first requests in which we interpreted the application of the §3-103(a)(1)(ii) inconsistent employment provisions. That request involved a Motor Vehicle Administration Field Agent who wanted to establish a private detective agency. We considered in that Opinion the similarities in the employee's proposed private and State activities and the potential for use of State information as well as other general administrative issues presented. We also noted, however, the fact that the private agency would not be under the authority of the subject's agency, and that his private clients would be unlikely to be subjects of his official responsibilities so as to create a problem in his day-to-day MVA work. We thus concluded there that the employee's establishment of his detective agency as proposed would not, in itself, be a violation of the inconsistent employment provisions of §3-103(a)(1)(ii).
We believe that the facts provided in connection with this request warrant the same conclusion that we reached in Opinion No. 81-28. These four employees would be working in a different geographical area and marketing their skills to a different client population than they counsel in connection with their official duties. We are aware, of course, of the concerns expressed by the Director of the Department that the employees would be working in a related field and should not be soliciting private clients based on their State status. We believe that this concern, however, is addressed by §3-104 of the Ethics Law. This section prohibits the use of the prestige of one's office for one's own private gain or that of another. The employees have agreed that they will not identify their official positions, but will rely solely on their professional qualifications. We have considered the application of this section to these types of employment situations in recent Opinions Nos. 82-36 and 82-37, and generally concluded that reference to and use of experience and expertise acquired as a State employee does not, in itself, result in a violation under §3-104.
The Director has also indicated his concern that the employees may have access to confidential information regarding cases and clients. Conceivably, this information could be useful to them, given the fact that individuals may move from one jurisdiction to another, and a former Baltimore City case might involve a potential client even in a different geographical jurisdiction. Section 3-107 of the Ethics Law prohibits employees from using confidential official information for their own benefit or that of another, and we believe these employees certainly must continue to be aware of their obligation to avoid use of agency information in violation of this section.
As we indicated in our Opinion No. 81-28, however, we do not believe that the existence of potential issues such as these necessarily brings a situation under §3-103(a) to establish an absolute bar on a particular outside employment relationship. In our view these types of concerns are addressed by these other provisions of the Law. The employees must be aware of and take care to comply with these provisions, recognizing that actions inconsistent with them could be viewed as a violation of the Law. However, the mere existence of a potential for violation of these provisions does not necessarily bar the activity altogether.
We believe that this is also the proper approach in considering the second major issue presented in this request, involving issues arising from the supervisory relationships among these employees. As is discussed above, two of the four employees are supervisors of all or some of the others. As such they have responsibilities relating to performance evaluations, leave requests, relationships with other employees and grievance actions. We have never formally considered the question of private business relationships between supervisors and employees in an advisory opinion. We did, however, in our Opinion No. 81-2, consider employment of relatives in the same office. We noted in this Opinion that issues could arise in these situations under §3-101 of the Ethics Law, which bars participation by employees in matters in which they have an interest or which involve as parties entities with which certain relatives are affiliated.
Issues could also be presented under §3-104 of the Law, which prohibits an employee's use of the prestige of his office for his own benefit or that of another. We believe that these constraints apply where individuals have private business relationships as well as where they have family relationships with fellow employees. Thus the two Employees here that are supervisors must disqualify themselves from participation in any personnel matter involving a partner in the private consulting operation. They must also, of course, take great care not to in any way use their official supervisory status to benefit a colleague, or, however indirectly, the consulting business.
We are aware of some concerns expressed by the SSA regarding potential appearance problems presented by the existence of this private business affiliation. We also are aware of the Director's general view that potential problems presented here can be effectively handled by the Department's personnel evaluation and program monitoring system. We believe that these kinds of issues are in fact more appropriately addressed by the employing agency through its personnel management system. If the agency concludes that this program cannot be properly managed, given the required disqualifications and any general difficulties in the program based on the employees' private business activities, then §1-103 of the Ethics Law specifically allows application of other more stringent provisions. We do not believe, however, that the mere existence of a private business relationship should result in an assumption that violations of §§3-101 and 3-104 of the Law would occur, requiring an absolute bar on the activity.
Nor do we believe that the private consulting operation must be viewed as creating an impairment of impartiality or independence of judgment bringing the inconsistent employment provisions of §3-103(a)(1)(ii) into play. We therefore advise the Employees that the consulting operation as presently contemplated would not in itself be a violation of the Ethics Law. They should, however, be aware of the various provisions of the Law as discussed herein that continue to control their private and official activities as long as they are State employees.
Herbert J. Belgrad, Chairman
Jervis S. Finney
Reverend John Wesley Holland
Betty B. Nelson
Barbara M. Steckel
Date: October 20, 1982