82.54

OPINION NO. 82-54

An opinion has been requested concerning whether a community home care aide (the Aide) in a local Department of Social Services may accept a bequest from the estate of a former client.

This request is presented by an Assistant Attorney General in the Department of Human Resources on behalf of an aide in a County Department of Social Services (the Department). The home care service program is established in Article 88A, §84-87, Annotated Code of Maryland, and implemented in COMAR 07.02.15. The basic thrust of this program is to assist elderly and chronically ill individuals to function in an independent living situation, free from abuse or neglect, by providing in-home and other supportive and professional services. The Adult and Family Services supervisor in the Department indicates that the home care aides are used in just about any way necessary to help keep a person at home. The aides may do light chores, assist in budgeting and nutrition planning, provide transportation, and in general, do everything except heavy chores and provision of medical services.

Basically, this request arises out of the Aide's service as a home care aide for a Departmental client from November 1979 to August 1981, when the case was closed. The Aide continued her relationship with the client and subsequently was bequeathed $2,000 in the client's will; the Aide's husband was named executor of the will. The facts indicate that the Aide provided the client transportation to a lawyer to draw up her will. The job description for the Aide's position specifically references provision of transportation for legal assistance, and she indicates that she had done this on several occasions for other clients. The Aide states that the client told her she intended to make her executor, but the Aide told her that would be impossible. She says that about three months before her death, the client mentioned naming the Aide's husband as executor. The Aide indicates that she did not think much about this since the client had changed her executor several times and she expected her to do it again.

After the case was terminated, the relationship of the Aide and her family to her former client continued. The Aide believes this happened because the client had become dependent upon her and her family. She states that even though the client could do some things for herself, she was lonesome and would often call the Aide's spouse or sons to talk to them or with an excuse for them to come to her house, such as needing the lawn mowed or someone to take her somewhere. Gradually the family began including the client in their holidays, and she began to look upon them as her "adopted family." This relationship began while the individual was a Departmental client and became stronger after the case was terminated. The Aide believes that this type of situation is not unusual, though it depends upon how dependent an individual has become on an aide, and whether there are family or other support sources in the community. Her supervisor also indicates that while these types of relationships are not encouraged, they do happen, because often the home care aide is an individual's only contact with the community. Though she is not aware of specific situations, the supervisor believes this type of post-termination relationship probably has happened with other aides; she states it is very difficult not to become involved emotionally with clients, especially when they are alone.

This request presents issues under §§3-106 and 3-104 of the Public Ethics Law (Article 40A, 3-106 and 3-104, Annotated Code of Maryland, the Ethics Law). Section 3-106 of the Ethics Law prohibits acceptance by an official or employee of any gift from a person who is doing or seeking to do business with his agency, is regulated by his agency, has financial interests that would be directly affected by the individual, or is a registrant under Title 5 of the Law. Gift is defined in §1-201(p) as the "transfer of anything of economic value regardless of form without adequate and lawful consideration." The deceased individual here would, as a client of the agency, have been viewed as a person doing business with the Aide's agency. Though there could be technical arguments that she did not meet the criteria of §3-106, based on the admonition of §1-102(d) to liberally construe the Law and the general circumstances here, we conclude that she was the type of person intended to be included. However, we do not believe that there was actually a transfer of a thing of value while she was a client of the Department and the Aide. The will was written while she was a client, but rights of beneficiaries under the will did not vest until considerably later, and the Aide indicates she was not aware of the bequest until the will was read. Under these circumstances we do not believe that this bequest constitutes a gift from a covered person as contemplated by §3-106.

Even though the bequest is not treated as a prohibited gift, the issue remains as to whether the situation here represents an intentional use of the prestige of her position by the Aide for her own benefit or that of another as prohibited by §3-104 of the Law. (It should be noted here, of course, that her spouse, as executor, will be entitled to a certain percentage of the estate as a fee.) We have considered this section of the Law on several occasions, and have generally looked for some intentional act before applying it. For example, our Opinion No. 82-51 involved a member of a Social Services Advisory Board's applying for employment in the local department, and Nos. 82-36 and 82-37 involved the use of State experience on a resume. We have generally looked for some affirmative action that would be viewed as intentional misuse of office, and permitted the activity in all three of these situations.

In applying this approach to the circumstances presented by the Aide, we conclude that nothing in §3-104 or our interpretation of it serves to bar her accepting this bequest or her spouse's serving as executor. There is no indication that the Aide took any intentional action to influence the client's will in her favor, and her provision of transportation services is consistent with specific duties set forth in her official job description. She indicates that she was unaware of the bequest and specifically advised the client against naming her as executor. Under these circumstances we find nothing to support a conclusion that the aide improperly used her State position for her own benefit or that of another, and advise her that the Ethics Law does not bar her acceptance of this bequest.

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

Date: December 15, 1982