82.51

OPINION NO. 82-51

An inquiry has been received from the Staff Assistant to the State Board of Social Services concerning whether members of local Boards of Social Services may have or be interviewed for State employment in the Social Services Administration (SSA).

This request is presented as a general question, though it was originally raised by a local State Services Department that is engaged in a hiring process in which a local board member appears on the list of eligibles. The SSA is interested in Ethics Law application to the particular situation of a board member being employed by the local department advised by his Board, but would also like general guidance if there is a likelihood of ethics problems as to employment by board members in other local departments.

The SSA is part of the Department of Human Resources (DHR), which is a State agency responsible for managing the State's employment security, social services, income maintenance and community services programs. The DHR programs in the social services and income maintenance areas are carried out to a significant extent in local county departments of social services established pursuant to Article 88A, §12, Annotated Code of Maryland. These local departments, with guidance and direction from the central State offices, are the coordinating and directing agencies for administration of child welfare, child day care, adult and family services, and income maintenance programs within their respective jurisdictions. Article 88A also provides that each local county department shall have a local board of social services.

Section 13 of Article 88A defines the membership and organization of the local boards, and section 14(e) provides that acceptance by board members of any other public office shall be deemed to be a resignation from the Board.1 The local social services boards have substantial advisory and other responsibilities for interfacing with the local departments. Their functions include, among others: selection of the local director; advising the local director and State director as to the local application of State policies or procedures; review of the periodic evaluation of the local department by the State dministration and consultation with the local director as to implementation of resulting recommendations; reviewing the local department's annual report, making recommendations as to changes in policies or procedures, and transmitting them to the State Administration; reviewing and making any suitable recommendations in connection with the annual estimate of funds required for the local department's programs; consulting with the local director as to the need for new services and approving or disapproving the local director's evaluation of the readiness of the department to take on the new service and the propriety of it within the State plan; and taking necessary steps to secure appropriation of local funds.

This request raises issues under 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) as well as under the participation and prestige provisions of §3-101 and 3-104 of the Law. Section 3-103(a) prohibits employment by a State employee or official with any entity that is regulated by or contracts with his agency (subsection (a)(1)(i)) and also any other employment that would impair his impartiality or independence of judgment (subsection (a)(1)(ii)). We have in earlier opinions generally concluded that secondary State employment does not constitute employment with an "entity" as contemplated by the restrictive provisions of §3-103(a)(1)(i).2 Consistent with this approach, we therefore believe that State employment by a board member would not constitute employment that is subject to the §3-103(a)(1)(i) prohibition.

In evaluating the circumstances in a recent Opinion (No. 82-37), however, we considered the question of whether the inconsistent employment provision of §3-103(a)(1)(ii) would bar employment even if both relationships were with an agency of the State. We noted that this subsection of the Law has somewhat broader language than subsection (a)(1)(i); it does not use the term "entity," and prohibits "any other employment" that would impair an individual's impartiality or independence of judgment. Though the facts of Opinion No. 82-37 did not warrant application of subsection (a)(1)(ii), we suggested there that this prohibition could apply to secondary State employment situations, "where there are clear personal and organizational conflicts intended to be addressed by the Ethics Law that cannot be controlled by the personnel and administrative process."

The local social services boards appear to have significant and substantial advisory responsibilities as to management of the local social services departments, in addition to their authority to select and evaluate the local director. Given this fact, we find the proposed department employment by board members to be similar in some respects to the situation presented in our Opinion No. 82-16. This Opinion involved a Trustee of the Maryland Environmental Trust who was the principal investigator on a contract with his agency. Though this Opinion involved a contractual, rather than employment, relationship, it reflects our view that a State board member could not enter into a second relationship with his agency that would involve supervision of his own work or of others responsible for evaluating his work.

We believe that similar concerns are raised in this request, considering the difficulty a board member would have in avoiding being influenced in his board duties by his day-to-day job experiences and relationships. In our view, holding simultaneous board membership and local department employment raises a type of personal and organizational conflict that is forbidden by §3-103(a)(1)(ii). It is also our view, however, that social service employment in a different county department would not present these kinds of conflicts, and would therefore not, in itself, be within the subsection (a)(1)(ii) proscription.

Though we conclude that §3-103(a)(1)(ii) bars a board member from having both employment and board membership, we do not believe that the Ethics Law either forbids a member from seeking such employment or requires resignation from a board while the selection process is pending. Board members, however, should be aware of the provisions of §3-101 and 3-104 of the Law. Section 3-101 prohibits an official from participating in any matter in which he has an interest. Thus, board members should be careful to disqualify themselves from participation in board consideration or action on matters relating to the position. Also, §3-104 of the Ethics Law prohibits an official from intentionally using the prestige of his office for his own personal gain or that of another. We recognize the likelihood that a hiring authority would be aware of the status of an applicant as a member of the local board, and that this could be viewed by some as presenting a prestige problem. However, §3-104 bars intentional use of prestige, and we do not believe that existence of a board status in itself constitutes the kind of affirmative misuse of office intended to be addressed in this section. Board members being considered for employment must, of course, take great care to avoid any action or statements that could be construed as a use of their board position in order to obtain department employment.

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 This provision has been interpreted by DHR counsel as applying where a "public office" (such as the local director) is involved, but not to regular employees who are not public officers in the constitutional sense. Thus, whether service on the board would bar service as a regular employee would depend upon application of the Public Ethics Law.

2 See our Opinions No. 82-37, No. 82-33, No. 82-32, and 81-7.