84.28

OPINION NO. 84-28

An opinion issue has been presented concerning whether the Chief of the Hereditary Disorders Division in the Department of Health and Mental Hygiene (DHMH or the Department) may retain non-compensated appointments at medical and teaching facilities that receive grants from and are subject to the regulatory authority of the Division and the Department.

The Requestor is the chief of the Hereditary Disorders Division (the Division), part of DHMH's Preventive Medicine Administration. The Maryland hereditary disorders program is established in the Health General Article, 13-101—13-111, Annotated Code of Maryland. The program is directed at prevention of disease and chronically disabling conditions resulting from any disorder that is transmitted through the genetic material deoxyribonucleic acid (DNA). The program includes screening programs for early identification and diagnosis, as well as treatment, counseling and follow up. It has been and in the future will be funded largely through funds available through different federal programs, and involves significant interaction between the Department and private medical facilities and teaching institutions.

The Division is charged with the responsibility of implementing regulations established by the Commission on Hereditary Disorders relating to screening and testing programs for hereditary metabolic disorders (COMAR 10.39.01) and for sickle-cell, thalassemia, and related conditions (COMAR 10.39.02). The screening program for metabolic disorders is directed at institutions and physicians who perform screening on every newborn child in the State, except where the parents or guardian object. The Division is also responsible for distribution and implementation of funds under a grant program, currently involving both Johns Hopkins Hospital and University Hospital, as well as Children's Hospital in the District of Columbia. This grant program is heavily directed at services in patient treatment programs, through Hopkins, which has a large independent genetics establishment, and University Hospital, whose genetics program was set up recently through grant funds available under the federal Genetic Diseases Act. University Hospital also runs outreach clinics on the Eastern Shore and in Western Maryland. Though the federal grant under the Genetic Diseases Act expired in October, the program will continue to be federally funded, through the maternal and child health grants. Future grants will be awarded based on the State's procurement process. Proposals will be reviewed through the Preventive Medicine Administration's grants review panel. The Requestor is not a member of this panel and her role in the process will apparently be to review and make recommendations as the program director.

The Requestor is a graduate of the University of Maryland Medical School, and is board certified in genetics and pediatrics. After a residency in Massachusetts, she was Chief Resident at University Hospital and did a fellowship at Hopkins. She was employed at University Hospital in order to start up the medical genetics unit at the hospital. She indicates that since leaving Hopkins she has continued to have an academic appointment as an instructor. This involved some clinical work, though it was primarily teaching, and was not for compensation. The Requestor wishes to retain her academic appointments at both of these institutions. She states that they will continue not to involve any remuneration. She has no private practice and receives no benefits or fees from or through either of these institutions (except that the institution's malpractice insurance would apparently cover her, as to actions she takes as its agent). Her non-compensated academic appointment at University Hospital does not carry any re-employment rights. The Requestor anticipates that she would be doing some teaching, and would also hope to do occasional clinical work. The DHMH, through its counsel and other personnel, has expressed the view that the Department's physician managers need to affiliate with private medical institutions in order to retain their clinical skills, and prohibiting these relationships could impair the agency's ability to attract and retain highly qualified physicians within the State's low salary structure.

The fundamental issue presented by this request is whether the Requestor's non-compensated academic appointment results in an employment relationship for purposes of §3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law). We have consistently held that the absence of compensation does not in itself mean that an activity is not employment. The §3-103(a) employment prohibitions have thus been applied in several situations to bar non-compensated service on private boards of directors. (See, for example, Opinions No. 84-23, No. 83-24, No. 82-45, and No. 82-43.) This approach has been based on our concern that the duty of loyalty and fiduciary relationship involved in service on a governing board creates an interest in the entity's circumstances that results in an employment affiliation even where there is no compensation. We have not formally considered this approach in the context of a situation where voluntary services are provided as a worker rather than a member of a managing board. However, in a recent Opinion (No. 84-17) involving a member of the Board of Morticians who was a member, but not an officer of, a private association, we concluded that his relationship with the association did not constitute employment. Also, in a recent informal response to a State House guide, her volunteer service with a local tour group was approved as long as she avoided any management or compensated activities with the group.

We have some concerns about the affiliation by a program director with entities with which she has such significant official relationships. However, we believe that our earlier approach to voluntary non-management services is applicable here. To consider the type of clinical and teaching work described to us here as employment would, we believe, go beyond what the Ethics Law intended to address as a private employment relationship. We therefore advise the Requestor that her continued academic appointments, as described to us, do not constitute employment relationships with these entities that would be absolutely barred by the prohibitions in §3-103(a) of the Ethics Law.

Other provisions of the Law, however, continue to apply. In particular, the Requestor should be aware of the provisions of §3-104, which prohibits the use of the prestige of one's office for one's own private gain or that of another, and §3-107, which prohibits the use of confidential agency information for the economic benefit of oneself or another. To avoid potential problems under these provisions, she should take care not to engage in her clinical or other activities with these institutions in management, policy, or substantial operational duties regarding aspects of their efforts that are found directly by grants awarded by her agency and monitored by her Division. She should especially avoid any management responsibility with these institutions that could give rise to issues in connection with grant auditing functions by her Division, and should avoid any situation where the availability to her of grant award information could be viewed as benefiting these institutions over other possible grantees.

We wish to make clear that our conclusion here is based on the application of the Law to the specific limited circumstances presented in this request. It relies, for example, on the fact that this relationship is uncompensated and does not involve any direct economic benefits to her. Our advice also assumes that the Requestor will continue to be aware of the Ethics Law's prestige and information provisions and the need to avoid situations that would raise issues under these provisions. In view of the facts as presented, we do not believe that this particular situation comes within the specific types of concerns intended to be addressed by the employment prohibitions of the Ethics Law, and is therefore a matter for agency judgment. However, we believe that the agency should monitor these types of affiliations very closely, to ensure adherence to the principles we have discussed under the Ethics Law.

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

Date: December 12, 1984