We have received an advisory opinion request concerning whether a supervisor (the Employee) in the Montgomery County Department of Social Services (MCDSS) Assessment Center may do clinical counseling through a private entity that has provider contracts with the Howard County DSS.

The Employee is a Social Worker IV in the Adult Services Division of MCDSS. She is the supervisor of six other employees in the Division's Assessment Center (the Center), whose mandate is to conduct evaluations and assessments of long term care planning. Most of the Center's clients (75 percent) are elderly. The procedure is for a worker in the Center to do a site visit or interview to evaluate the client's situation to determine what services are needed. The worker would then make a referral to any of many available services, both public and private, that would meet the client's long-term care requirements. The Employee does not herself have direct client contact or do referrals, though she does supervise others who do this work. She indicates that the Center does not make referrals directly to agencies in other counties; an out-of-county client would be referred to the DSS in his county of residence.

This request involves the Employee's wish to continue her affiliation with Christian Counseling Associates, Inc. (CCA), a private counseling service located in Columbia, Maryland. This entity provides psychological and psychiatric counseling to individuals within the framework of the Christian faith. Its Director indicates that CCA's original location was in a Burtonsville church (in Montgomery County), and that, as a result of this, it still receives some referrals from Montgomery County. He states that many clients are referred by pastors or find CCA through a brochure that is distributed to churches (including some in upper Montgomery County), or through the Yellow Pages. He indicates that the entity is listed in the Montgomery County Directory of Community Resources, though he is not aware of ever having received a referral from MCDSS.

According to the CCA Director, most clients pay their own fees, either directly or through insurance. Some clients are funded by their churches. Also, CCA has received some referrals from the Howard County DSS and has been reimbursed as a provider of services to this agency. These services are provided as "supportive services" under the foster care program for children that is implemented by local Departments of Social Services. These supportive services may be purchased from a foster family or from another private resource in the community. The child must be determined to need the service because of a health (physical or mental) condition, or an emotional or behavioral problem. The service provider must be determined to be capable, by virtue of special training or experience, of providing the needed service. The Department of Human Resources (DHR) regulations dealing with this program (COMAR provide that the services to be provided are to be documented by the local director or his designee, other than the caseworker.

The Supervisor of Foster Care in the Howard County DSS indicates that he is the person in the Department who makes these determinations. He states that CCA informed the agency of its availability and has generally been accepted as a capable provider in accordance with the regulations. According to this official, the Department tends to use CCA as a resource because it occasionally has clients that are especially interested in counseling within a religious context. The procedure is that a caseworker would identify the need for a service and determine whether a particular entity will provide it in accordance with the agency's terms. A standard form contract between the entity and the local department is completed to set forth the particulars of the situation, including maximum monthly payments. The provider then bills the Department and is reimbursed on a monthly basis. Consistent with a schedule included in the DHR regulations (Schedule B-4, COMAR, the maximum monthly payment is $200. Christian Counseling Associates has had three cases referred from the Department; the Employee was the counselor on one of them. Recent monthly payments to the entity have been in the $150—$175 range.

This request involves application of the outside employment prohibition in §3-103(a)(1)(i) of the Public Ethics Law (Article 40A, §3-103(a)(1)(i), Annotated Code of Maryland, the Ethics Law), and our outside employment exception regulations. Section 3-103(a)(1)(i) bars an official or employee from being employed by any entity that contracts with or is under the authority of his agency. The employee here works in a county DSS, which is a unit within the Department of Human Resources (DHR). Her private employer, CCA, has had or may expect to have provider contracts with another county DSS, also a unit within DHR. In requests involving employees of departments such as DHR, we have generally treated cabinet departments as single indivisible entities for purposes of §3-103(a)(1)(i),1 and do not see any reason for treating this situation differently. Applying this principle, a private entity contracting with any unit of DHR, including another county DSS, would be an entity that contracts with the Employee's agency for purposes of §3-103(a).

Since CCA does contract with a unit of DHR, the Employee's affiliation with it would thus be prohibited by §3-103(a)(1)(i), unless it is excepted under our outside employment regulations. Authority for this exception is set forth in the introduction to §3-103(a), which provides that the prohibition applies "except as permitted by regulations of the Commission...where such employment does not create a conflict of interest or appearance of conflict." Regulations implementing this exception provision are set forth in COMAR 19A.02.01. They include several criteria identifying circumstances where the relationship between an employee's outside employment and his agency would be so remote that a conflict of interest or appearance of conflict would be unlikely. They allow exception, for example, where the employee's official duties involve no significant impact on his outside employer, where his outside position is not directly funded by a contract with his State agency, and where his private duties do not involve implementation of a contract between the agency and the outside employer. (See our Opinion No. 82-40 for a more detailed discussion of the exception criteria.) The regulatory procedure requires review and determination regarding each factor in order to conclude that the absence of the relationships supports a finding that no conflict or appearance thereof exists.

We have evaluated application of the exception criteria to the Employee's outside employment. We have considered that the Employee works in a different county that has not had any referral activities with CCA, and note also that the CCA contracts with the Howard County DSS are handled solely within that office, and do not involve a substantive program with which the Employee works. Under these circumstances, our general conclusion would be that the Employee's private and official duties are sufficiently unrelated to allow application of the exception. We note also, however, that she has in the past worked with a CCA client referred from and funded under a Howard County DSS provider contract. This activity, if continued, would be inconsistent with some of the regulatory criteria. Thus, the exception could only be allowed if the Employee and her private employer were to undertake to assure that she has no contacts with any unit of her agency and undertakes to handle no cases involving it.

The Employee has indicated that her counseling with the DSS client has reached a stage where she can sever her relationship with the individual. Also, the Executive Director of CCA, who makes assignments to the organization's therapists, has stated that he will ensure that no DSS clients are assigned to her. Apparently there are currently no DSS provider contracts that are active. The Employee indicates that, given her State workload, she has very few private cases, all of them referred through family or church connections. Under these circumstances, and based on the assurances that the Employee will do no CCA work involving any DHR unit, and assuming her own duties to do not somehow change to include official contacts with CCA, we conclude that the relationship between her private employer and her agency duties is sufficiently remote to allow exception from the prohibition of §3-103(a)(1)(i).

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

Date: March 28, 1984


1 See our Opinions No. 83-5, No. 83-3, and No. 80-18. Except as expressly cited to the Maryland Register, Opinion citations are to Commission Opinions published in COMAR Title 19A.