83.31

OPINION NO. 83-31

An opinion has been requested concerning whether a Veterinarian with the Maryland Department of Agriculture (DAGR or the Department) may have a private veterinary practice.

The Requestor is the Director of a laboratory in the Animal Health Section of DAGR, under the Department's Office of Animal Health and Consumer Services. He is a Veterinarian III, Laboratory Option. His laboratory generally functions within its defined geographical area, dealing primarily with food-producing animals. Though some fee services are provided for small animals, apparently most small animal practitioners would use a lab certified by the Department of Health and Mental Hygiene rather than a DAGR lab. The laboratories function in furtherance of the Department's general authority to protect the health of domestic animals in the State from contagious and infectious diseases. The laboratories make disease diagnoses based on samples or animals submitted; they do various laboratory tests; and they perform autopsies.

Veterinarians employed by the DAGR may also be involved in field inspection work, pathology work, or meat and poultry inspection. The State Veterinarian indicates that he may use employees in any situations or geographical areas where an emergency arises, though the Requestor indicates that he generally works a regular working day strictly confined to laboratory testing activities. He says his duties relate primarily to large animals. According to the Requestor, the State laboratory vet provides no treatment and does not deal directly with owners. Veterinarians for DAGR are not required to be licensed.

This request is for an opinion under the Public Ethics Law (Article 40A, Annotated Code of Maryland, the Ethics Law) as to the Requestor's ability to operate a private veterinary practice in his home County, which is not in the geographical area specifically served by his lab. He states that he is a licensed veterinarian and currently has a small house-call practice dealing only with small animals. This type of practice had been permitted by a former Assistant Secretary as long as it met certain conditions. The Requestor wishes to establish a small clinic practice, which he indicates would continue to be solely in his home County and deal only with small animals. He states that it would be confined to evenings and week-ends.

Veterinary practices are substantially regulated by the Board of Veterinary Medical Examiners (the Board), a regulatory board within the Department. The Board's authority includes not only licensing of veterinarians, but also substantial regulatory authority over the practice itself. For example, the Board, which is established pursuant to the Agriculture Article, Subtitle 3, Annotated Code of Maryland, has the following authority:

1) it licenses veterinary practitioners, and has revocation, suspension and other enforcement authority regarding the licensees;

2) it licenses veterinary hospitals, which are broadly defined to include "any building or portion of a building which is regularly used for the treatment of animals by a veterinary practitioner," and has the authority to inspect such facilities and suspend or revoke a license;

3) it establishes ethics provisions for the practice of veterinary medicine, and regulates advertising by practitioners; and 4) it has broad authority regarding education and continuing education programs for veterinary practitioners.

This request raises issues under the outside employment and financial interest prohibitions of §3-103(a)(1)(i) of the Ethics Law. We have consistently held that a solo private practice constitutes an entity with which an employee has both an employment and financial interest relationship. An example of an Opinion on this issue that involves a medical practice is Opinion No. 81-45.1 This case involved a county health department dentist, whose solo practice was approved on the condition that he limit the practice to avoid any referrals or other relationships with his Departmental duties. This Opinion relied heavily on the fact that, while the dentist himself was licensed by a board in his agency, his practice was not subject to his agency's regulation, as an identifiable entity. We also concluded in Opinion No. 81-45 that the agency's virtually nonexercised authority to inspect x-ray equipment was too remote to bring the situation within the scope of §3-103(a).

The situation presented in this request differs in two key ways from the circumstances presented in Opinion No. 81-45. First, the Board has significant authority over the practice itself. Second, unlike the health department's x-ray inspection program, agency personnel indicate that the Board's inspection and other programs are carried out on an ongoing basis. In fact, veterinary hospital licenses are required to be renewed on an annual basis. The Requestor's proposed clinical practice would thus be an entity under the authority of his agency, and in our view he has an employment interest in it prohibited by §3-103(a)(1)(i). If he anticipates receiving over $1,000 per year in income from the practice, then he would have a financial interest that would also be barred by §3-103(a)(1)(i). (See §1-201(m) of the Ethics Law for the definition of "financial interest.")

The Ethics Law would under these circumstances prohibit the Requestor from having a private practice unless an exception is allowable under our outside employment and financial interest exception regulations. These regulations implement introductory language in §3-103(a), which provides that the prohibitions of subsection (a)(1) apply "except as permitted by regulation of the Commission where such interest is disclosed or where such employment does not create a conflict of interest or appearance of conflict." The purpose of the exception is to avoid situations where a violation would result from technical application of the elements of §3-103(a) even where there is no conflicting relationship between official duties and the private interest or employment. The exception criteria define the circumstances where the relationship between an employee's agency and private duties is remote, and the possibility of a conflict of interest or the appearance of conflict is unlikely. The criteria, which are contained in COMAR 19A.02.01 and 19A.02.02, include, for example, consideration of possible impact by the employee on his outside employer or interest, and also the relationship of the employee to supervisors, other employees, or the unit of his agency that impact on his outside employer or interest.

The regulatory criteria also include a provision for consideration of the nature of the individual's private duties in relationship to his State agency, providing, for example (in COMAR 19A. 02.01.03F and 19A.02.02.03G), that the employee's outside employment or financial interest should involve no substantive non-ministerial duties significantly relating to his State agency's authority over the entity. An issue is raised by this request under this criterion in view of the Requestor's private duties and their relationship to his agency's exercise of authority over the practice. This authority appears to be substantial, and as a solo practitioner the Requestor would be the person substantively responsible for complying with the Board's regulatory, enforcement and other directives.

This criterion is one of the regulatory criteria where an agency view that the relationship would not present a conflict could be a basis for allowing the exception. (See COMAR 19A.02.01.04 and 19A.02.02.04.) Personnel in the Department (including the State Veterinarian and the Deputy Secretary) have apparently, however, determined that private practices by Department veterinarians should not be allowed. Concerns have been expressed, for example, about problems with a private evening practice interfering with the laboratory's emergency needs at irregular hours, about appearance problems if the Department (through the Board) is called upon to adjudicate matters relating to the Requestor's practice, and potential appearance problems arising from the Requestor's possible ability to use his lab position to benefit himself or other veterinarians. The Department has therefore opposed an exception in this situation, stating that a potential conflict of interest would exist that will impair the image of the Department.2

Taking into account all of these considerations, we therefore advise the Requestor that his proposed practice would be in violation of §3-103(a)(1) of the Ethics Law, and that the exception regulations may not be applied to overcome this bar.

Reverend John Wesley Holland
    Betty B. Nelson
    Barbara M. Steckel

Date: September 28, 1983

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1 Except as otherwise expressly cited to the Maryland Register, Opinion citations are to Commission Opinions published in COMAR Title 19A.

2 We understand that the Department intends to establish a general policy barring its veterinarians from having any private veterinary practice. As we have noted in several prior Opinions, we believe that §1-103 of the Ethics Law specifically recognizes that agencies may have more restrictive provisions dealing with particular agency concerns.