An opinion request has been presented concerning whether an administrative officer (the Employee) in the Drug Abuse Administration's (DAA) Criminal Justice Division may have outside employment with a private entity that receives a DAA grant, and that is regulated and funded by the Juvenile Services Administration.
The Employee's position in the DAA (a unit within the Department of Health and Mental Hygiene, DHMH) involves establishment and implementation of a program entitled "Treatment and Rehabilitation for Addicted Prisoners." He has been employed by the State for nineteen years and with DAA for the past seven years. He has a graduate degree in counseling and criminal justice, and his job involves development of treatment programs interfacing with the criminal justice system. The programs are funded by and currently reflect coordinating efforts between DAA, the Alcohol Control Administration, the Division of Parole and Probation, and the Division of Correction. The Employee's supervisor, Director of DAA's Criminal Justice Division, indicates that the Employee's function is to develop programs which are then turned over to others (either through contract or State management) to implement. According to the supervisor, DAA does not actually deliver services in any of its programs, though the Employee retains monitoring and review responsibilities as to programs he has set up.
Examples of the types of programs in which the Employee is involved include the recently established Evaluation, Diagnosis and Referral Unit in the Guilford Avenue facility of the Division of Parole and Probation. This program involves screening and evaluation of adult parolees and probationers who are required to be in an alcohol or drug treatment program. Another program in which the Employee is to be involved is a pilot project being developed in coordination with the Juvenile Services Administration (JSA, also in DHMH) at the Maryland Training School for Boys. This program is to be a 30-day program dealing with youth in the institutionalized setting. Once the project is established, it would be run by a contractor. If the pilot is successful, then similar programs would be started in other JSA facilities. Here, also, the Employee's effort would involve setting up the program, and generally monitoring implementation; he would not be involved in delivery of services.
The request arises from the Employee's interest in working as a part-time counselor with a youth services center (the Center), a private non-profit facility funded largely with public funds, pursuant to Health-General Article, §6-122, Annotated Code of Maryland. The Center was established as part of the youth services program developed by JSA and is funded approximately 75 percent by JSA and 25 percent by Baltimore County. Consistent with statutory and regulatory guidelines regarding youth services bureaus, it provides a core youth services program, including group, family and individual counseling, crisis intervention and parent effectiveness training. It receives its referrals primarily from JSA and from the school system. The Center also has a substance abuse counseling program funded by a grant from DAA. According to the DAA Administrator, this grant was made based on survey results indicating that the Center's geographical area had a significant substance abuse problem among its youth, but no available services. The grant was originally for $10,000, and, with an additional $7,000 from Baltimore County, is directed at supporting one counselor; it has recently been increased by $2,500 apiece from each grant source. According to the Administrator, utilization reports from the Center show the program has consistently been at or above capacity.
The Employee indicates that his work for the Center would entail ten hours per week, and would involve primarily family therapy, or possible work directly with an individual young person. He states that he would be dealing with younger children who usually are not involved in alcohol or drugs. He would be counseling as to behavioral problems, either in the school system or at home, or as to children that are incorrigible or otherwise out of control of their parents. He states, and the Center's Executive Director reiterates, that he would not be in any way involved in substance abuse counseling. In his letter supporting this request the Executive Director of the Center discusses the organization's intake procedure and steps it would take to ensure that the Employee is not involved in the DAA grant.
The Employee's supervisor and the DAA Administrator are concerned that care be taken that he not be involved in substance abuse counseling, but otherwise they do not believe that this situation would present problems for the agency. The Supervisor indicates that the Employee's programs relate either to adults or to juveniles who are institutionalized, and also that he is not involved in actual delivery of services or making any referrals. Also, the DAA Administrator indicates that the Employee does not have any involvement in the grant award process generally, or with the Center grant in particular. According to the Employee, he sought the position through a newspaper ad, and based on his own general knowledge of community based programs such as this.
This request raises issues under the outside employment prohibitions of §3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law), which bars outside employment with any entity that is under the authority of one's agency or has contractual dealings with the agency (subsection (a)(1)(i)). It also forbids any other employment that would impair the individual's impartiality and independence of judgment (subsection (a)(1)(ii)). We have generally looked upon cabinet departments as indivisible entities, and concluded that contractual or regulatory relationships with any unit of a large agency such as DHMH would bring an outside employer within this proscription, as to employees of that department. (See, for example, Opinions No. 84-10, No. 84-1, No. 83-7, No. 83-3, and No. 80-18.1 The Center is subject to the authority of JSA, and would also be an entity contracting with the Employee's agency by virtue of its JSA and its DAA funding. His employment with it would therefore be prohibited by §3-103(a)(1)(i), unless an exception is allowable under our outside employment exception regulations.
The exception provision was added to the Ethics Law in 1981 partly based on the recommendation of the Commission that flexibility be added to the absolute prohibitions in §3-103(a). Its purpose is to avoid situations where a violation would result from purely technical application of the elements of §3-103(a), even where there is no conflict or appearance of conflict between the private interest or employment and the official's agency or duties. In developing exception criteria implementing the employment portion of this provision (COMAR 19A.02.01), we sought to define circumstances where the relationship between an employee's official duties or his agency and the private employment is so remote that the possibility of a conflict of interest or the appearance of conflict is unlikely. The criteria include findings relating to an employee's official relationships with his private employer, as well as consideration of how his private activities relate to his agency program or his own duties. They also include an evaluation of the specific employment circumstances to ensure that they do not otherwise create a conflict of interest or the appearance of a conflict.
We have evaluated the Employee's situation in view of these criteria, considering both the specific duties to be performed by him for the Center and the overall employment circumstances, and do not believe that allowance of an exception would be appropriate in this situation. In our view, §3-103(a) of the Law reflects a general legislative determination that State employees and officials should not have employment relationships with private entities that have contractual dealings with their agency. The exception provision in the Law was intended to allow flexibility to avoid technical application of a prohibition where there is no conflict of interest or appearance of conflict. Thus, the regulations were drafted as indicators by which to measure actual or potential conflicts of interest, rather than as a series of purely technical criteria. This approach reflects the purposes of the Law, set forth in §1-102, to assure the public of the impartiality of public officials, recognizing that the public may not be in a position to know or understand to what extent an agency's organizational structure or an employee's non-participation actually serves to avoid a conflict or appearance thereof.
We recognize that the Employee is not involved in the DAA grant to the Center, either in DAA or as a substance abuse counselor in the Center's implementation of the grant. We also note that the Center receives Baltimore County funds from which the Employee could be compensated (rather than from JSA funds). The fact remains, however, that the Center is a grantee of the unit of DHMH where the Employee is assigned, and also is significantly funded and regulated by another unit within the Department with which the Employee has dealings. The Employee's affiliation with this entity is therefore a violation of the Law. We do not believe as a general matter that exceptions to general prohibitions such as this should be granted to allow grantee entities under State programs to hire individuals employed in the State grantor agency unless the circumstances strongly indicate that the relationship is so remote that a conflict and even the appearance of conflict can clearly be avoided. In our view that is not the situation here.
The Center is a non-profit private entity whose continued existence depends largely on funding and approval by the State agency with which the Employee is affiliated. Though funding by DAA and JSA may be considered by some to be substantial, it is nevertheless a finite amount, subject to evaluation and competition. Moveover, though for accounting purposes the Employee may be paid from Baltimore County funds, he will be performing counseling duties in furtherance of total program requirements established by JSA and similar to other counselors who are compensated with JSA funds. Also, the Employee is expected to be involved as part of his State duties in a possibly continuing relationship with JSA, and neither DAA or JSA are such large agencies that his affiliation with a private grantee would not be known.
Under all of these circumstances, we are unable to conclude that the relationship between the Employee's private affiliations and his agency and his official duties is remote. We therefore advise him that his employment with the Center would be a violation of §3-103(a)(1)(i) that cannot be overcome by the statutory exception as implemented in our regulatory criteria.
Herbert J. Belgrad, Chairman
Reverend John Wesley Holland
Betty B. Nelson
Barbara M. Steckel
Thomas D. Washburne
Date: October 16, 1984
1Except as otherwise expressly cited to the Maryland Register, citations are to Commission Opinions published at COMAR Title 19A.