83.13

OPINION NO. 83-13

A Human Services Specialist (the Employee) in the Baltimore City Department of Social Services (part of the State Department of Human Resources) has requested an opinion as to whether she may serve on the Board of Directors of the Maryland Welfare Rights Organization (MWRO).

The Employee works in the Baltimore City Department of Social Services (DSS), in its Division of Public Assistance (the Division). The Chief of the Division and the Employee's immediate supervisor, indicates that its jurisdiction includes all of the cash assistance programs administered by the DSS, and that the Employee fills a staff position as a technical specialist in the area of General Public Assistance (GPA). This is a State-funded program paying a set amount of assistance to medically disabled persons if they meet certain financial limitations and if they have a certificate of eligibility. Her duties involve her interaction with agency case workers, private clients or their representatives, and medical personnel in clarifying and interpreting policies and procedures in administration of the GPA program.

The job involves participation in development of policies and procedures, though she is not a final decision-maker, and communication of these policies to DSS workers involved in administering the GPA program. The Employee responds to specific requests for information or inquiries about particular actions taken by a case worker. Both the Employee and her supervisor indicate that hers is primarily an informational function. Occasionally there are appeals and formal proceedings by clients, though more often all that is required is information or clarification of a policy or requirement. The Employee also has responsibilities as a public speaker, providing clarification and interpretation of GPA program provisions to various public and private groups. She also represents DSS on the Welfare Advocates Committee, an umbrella organization of may client advocate groups. The Employee is proposed as a member of the Board of Directors of the Maryland Welfare Rights Organization, an advocate group apparently not affiliated with the Welfare Advocates Committee.

More specifically, the Employee's job description includes, among other things, responsibilities:

—To assist in examining proposed regulation changes as they might impact into various Public Assistance programs.

—To assist in commenting on proposed regulation changes in various Public Assistance programs, taking into consideration local client needs, staff needs and the general need for clear policy which is operationally feasible.

—To assist in insuring that policy changes are properly communicated to Public Assistance staff and that there is a basic understanding of the meaning of the change, including its ramifications on operational issues.

—To assist in the establishment and maintenance of central controls and performance measures regarding various Public Assistance activities.

—In conjunction with the Chiefs of the Office of Compliance and the Division of Public Assistance to assist in the determination of areas of quality control error or weaknesses in implementing Public Assistance policies in order to plan for and carry out corrective actions.

—To assist in formulating changes in legislation to the agency's Office of Intergovernmental Liaison, and when necessary, to prepare testimony on pending legislation.

—To act as a liaison with the Income Maintenance Administration, Department of Human Resources and Baltimore City Medical Society regarding specific complaints about the agency or complaints about clients. To direct these to appropriate staff and to monitor a proper response.

—To serve as a regular agency member of the Welfare Advocates Group.

The MWRO is a non-profit corporation that serves as an advocacy group for the poor. It is described as a grass roots organization whose membership consists largely of individuals receiving public assistance, though some of its members may represent other groups that are involved in related service fields. Its geographical representation is limited to the Baltimore metropolitan area, predominantly Baltimore City. The Executive Director of MWRO indicates that the Board is primarily involved in general policy direction and budget matters, rather than day-to-day operations. Some decisions, however, such as whether to enter or initiate a particular law-suit, are referred to the Board by the staff. The Employee would serve as a regular voting member.

The MWRO interfaces in two ways with the Employee's State agency. First, it is characterized by Counsel to the Department of Human Resources (DHR), as one of the most established and visible advocacy groups dealing with DHR. The organization is described as "constantly" involved in negotiating policy development, both in the context of the regulatory process, and in litigation involving disagreement over the agency's implementation of the federal and State program mandates. The Director of the Income Maintenance Administration (IMA), also describes the MWRO as an important community group performing a monitoring and oversight role. She indicates that she meets with advocate groups, including the MWRO, on a monthly basis to get their input on and reaction to planned or ongoing agency actions. Interaction between MWRO and DHR at the State level, either in the litigation context or the give and take of program development, relates primarily to general policy issues, though the organization could also be involved at the State level in individual appeals from decisions or local determinations.

A second form of interaction between MWRO and the Employee's agency relates to its role as an advocate for individual recipients at the local agency level. The organization may act for clients in what the Division Chief describes as an "ombudsman" role; for example, it may call Division personnel, including the Employee, with an inquiry about a particular eligibility criteria, documentation requirement or procedural action by a case worker in connection with a particular recipient. The Administrator of IMA also indicates that MWRO does not usually argue about getting benefits contrary to regulations, but concentrates on trying to expedite the process or to help individuals through the paperwork of the system.

Most everyone agrees, however, that in some circumstances MWRO's advocacy for a client involves representation in a formal process including hearing at the local level, appeal to DHR, and possible litigation. The organization's Executive Director says that this type of activity is not very frequent, however, given its limited staff capability. Nevertheless, some agency officials have expressed concern about the Employee's service on the Board. They believe there can be circumstances where the organization would have policy positions contrary to those of the agency, and an employee should not be in the position of having to choose between the agency and another party in taking an official position. They are concerned that it could be difficult for a person to separate her roles as citizen board member and DHR employee.

This request raises issues primarily under the outside employment provisions of §3-103(a)(1) of Public Ethics Law (Article 40A, §3-103(a)(1), Annotated Code of Maryland, the Ethics Law). Subsection (a)(1)(i) prohibits an employee from being employed by or having an interest in an entity which is under his own authority or that of his agency, or which has or is negotiating a contract with the agency. As we have consistently held that non-compensated board service on private entities can be viewed as employment,1 the Employee's service on the MWRO Board must be viewed as an employment relationship for purposes of this subsection, and would be barred if the entity has either of the specified authority or contractual relationships. Though MWRO has had a contract with DHR in the past (under the CETA program), all of the parties agree that there is currently no contract, and the Commission's list of entities doing business with the State does not include any reference to MWRO. The Employee's service with the MWRO Board could thus be covered by §3-103(a)(1)(i) if the entity is under the authority of DHR or DSS or the Employee herself.

It is unclear whether an authority relationship exists between MWRO and DSS or DHR. The status of associations whose members are subject to an agency's authority has not been addressed by us in the context of the employment prohibitions.2 In two cases involving receipt of gifts by employees, however, we found associations in similar situations to be within the prohibited donor categories in §3-106(a)3 Certainly under the facts of this situation it is possible to conclude that the Employee's (probably) frequent informal contacts with MWRO would result in an authority relationship, or to to consider the occasional formal advocacy and litigation roles performed by the Organization as bringing it under DHR or DSS authority. Also, of course, a significant number of the organization's members are public assistance recipients who are plainly under the agency's authority.

Though we are thus inclined to believe that MWRO's substantial contracts with DSS and DHR could bring it under the agency's authority, we again decline to resolve this particular issue, as we believe that these very relationships establish clearly that the Employee's service on the MWRO Board must be viewed as inconsistent employment under §3-103(a)(1)(ii). This subsection bars "any other employment" that would impair an employee's impartiality or independence of judgment, and has been read narrowly by us as a complement to the more specific prohibitions in subsection (a)(1)(i). It has been viewed as applying where an authority or contractual relationship may not exist, but where the relationship between the private and official activities raises clear and serious concerns as to the employee's ability to properly carry out his State duties.

We have considered application of this provision in several opinions,4 evaluating whether there are relationships or contacts between the private and official activities that could raise reasonable questions in the public as to an official's or employee's ability to be completely impartial and independent of outside influences in carrying out his State duties. The Employee here is significantly involved in development, implementation and interpretation of the policies and procedures of the Maryland welfare program in Baltimore City. She indicates that she interacts with agency personnel and also with members of the public (including MWRO) when questions arise as to the proper interpretation of program policies. It is also clear that the Employee participates in her agency's policy-making process as a competent and knowledgeable professional, whose views, though not necessarily final, are sought and considered.

The MWRO is an entity whose goal, at least in part, is to impact these very policies in a way that benefits and enhances the rights of those it represents, who are recipients under the Employee's program. This goal may be pursued, apparently, by interaction between the MWRO and policy makers at the Departmental level, or by inquiries and advocacy actions on behalf of particular recipients. This latter activity may involve direct communication with the Employee. We recognize that in the long run some of the goals of both the MWRO and the Employee's agency may be similar, as they both seek to provide benefits and services to welfare clients. This program, however, is plainly one which involves many sensitive issues. Notwithstanding some similarity in goals, it is clear that the approaches of the agency and the MWRO are not always identical. There are going to be situations where the MWRO would be in an adversary role to agency policies or interpretations with which it disagrees. Employees of the agency with duties such as the Employee's should not put themselves in the position of having to choose between loyalties owed to their State position and those resulting from their service as a Director of a private organization.

Under these circumstances we believe that the provisions of §3-103(a)(1)(ii) clearly apply to bar the Employee's service on the MWRO Board. The close policy relationship between the entity and the Employee's agency would, in our view, raise clear and serious questions about her ability to carry out her State duties impartially and independently.5

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

Date: April 21, 1983

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1 See, for example, Opinion No. 82-22, involving service by the Executive Director of the Regional Planning Council on two local planning advisory boards. Note that all Opinion citations, unless specifically referenced to the Maryland Register, are to Ethics Commission Opinions published in COMAR, Title 19A.

2 In one employment opinion that generally raised the issue of authority over an association resulting from authority over its members, we responded to the request on other grounds specifically declining to resolve this question. (Opinion No. 81-5.)

3 See Opinions No. 82-14, involving insurance trade associations and the Deputy Insurance Commissioner, and No. 82-6, involving the Association of Maryland Pilots and a member of the Board of Examiners of Pilots.

4 See, for example, Opinions No. 82-55, No. 82-49, No. 82-42, No. 82-37, No. 82-36, No. 82-22 and No. 82-21.

5 Because we believe that this request is fully resolved by §3-103(a), we have not addressed other conflict of interest provisions of the Law, though we recognize that some could be of concern here. These provisions include the Law's non-participation ( §3-101), prestige of office (§3-104), and use of information (3-107) provisions.