An opinion has been requested concerning whether a Rehabilitation Counselor for the Deaf (the Employee) in the Prince George's County Office of the Division of Vocational Rehabilitation (DVR) may establish a private deaf interpreter referral business and whether that entity may do business with the Baltimore area Vocational Rehabilitation Offices.
The Employee works in DVR's Landover Office and her responsibilities are directed solely at counseling and vocational rehabilitation work with the deaf. She has approximately 150 clients, ranging in age from 18 to 65 years, who are residents of Prince George's County. Basically, the agency serves deaf individuals who require manual communication and whose deafness is established based on medical reports and other evaluation. The Employee works with eligible individuals to define their needs and evaluate what they want to do and what their capabilities are or potentially could be. The agency's goal is to get individuals into an employment situation in the broadest sense, whether competitive or sheltered employment or work as a homemaker. Toward this end, the Employee may counsel individuals and help direct them into certain situations. She also works to assist them in acquiring training to develop skills, from specialized handicapped training programs to college degree programs. Her duties also include assisting clients in finding employment and working with potential employers to convince them that the deaf can be good workers. Her assistance may include finding a deaf interpreter to accompany an individual to a job interview or through a training or education program.
Apparently all of the people served by DVR in this program are funded in some way by the State. According to the Employee, when a service is provided in connection with evaluation it is paid for entirely by the State. Other services are funded based on an economic needs scale, though costs could involve as much as four years of college. Apparently, interpreter costs are generally paid with State funds, where other costs of training (such as tuition) would be met by the individual's percentage contribution. There is currently no policy for defining how interpreters are selected. There apparently is an informal list and the Employee may call individuals herself, or she may use a Washington, D.C. referral service, for a fee. Interpreters and referral services are paid based on a purchase order.
The Employee is one of eight DVR Counselors for the Deaf statewide. Of these, there are four in the Baltimore Metropolitan area and others elsewhere in the State. She states that her interaction with her counterparts includes quarterly meetings, mostly to share information regarding new developments in programs as well as general issues and concerns relating to the program. Identification of new personnel serving deaf people may also come up. She says that other official dealings with her Baltimore counterparts would come up primarily where a deaf person moves from one locality to another. Counselors from the various jurisdictions may also need to coordinate with each other where a client is going to another jurisdiction for a particular resource. For example, a Prince George's County client may come to Baltimore City to be involved with the Maryland Rehabilitation Center, a comprehensive facility operated by DVR, or to affiliate with the Baltimore Goodwill, a private entity that has a program of specialized training for the deaf.
This request arises out of the Employee's interest in establishing a private business that would be a referral source for deaf interpreters to any individuals or entities, including the State. She would not intend to do the day-to-day operations of the business herself, but would hire someone (possibly an interpreter-trainee) to take incoming requests and find interpreters for specific situations. She states that she would advertise her availability through several available directories of services for the deaf, and also in the national TTY directory. She also could possibly use a mass mailing, but indicates that this may not be necessary since there is a developed word-of-mouth system of communications in the deaf community. The business would serve the Baltimore metropolitan area, where there is now no interpreter referral agency. The Employee says there is plenty of private business, though she thinks that DVR counselors would be annoyed if they could not use such a service to save the time of individual calls on their own. (Apparently, DVR requests, if permitted, would be about 10-15 percent of the business.) The Employee states that she anticipates directing her efforts at the private sector, primarily through institutions or professionals (such as attorneys or doctors) who work with deaf persons.
The Employee's supervisor has indicated that his only concern with regard to this activity would be that she not be involved in any way in her private business during working hours, indicating for example, that she could not take any calls at the office relating to the referral firm. He says she does not have access to client lists of other jurisdictions and could therefore not directly solicit business from these individuals. The Deputy State School Superintendent, the ethics contact for the Department of Education (of which DVR is a part), has also commented that the Department would have concerns about this activity if it were to come to him through the Department's outside employment review system. He says that the Department has addressed this type of situation in connection with psychologists that have private counseling practices. According to the Deputy Superintendent, the Department is concerned that employees could develop a practice of making official referrals to their friends and colleagues. It has therefore approved private practices only on the condition that they not accept any clients or referrals of individuals who have been clients of or otherwise involved with the Department.
The question presented by this request has to do with application of the outside employment and financial interest prohibitions of §3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law). This section of the Law bars any outside employment with or financial interests in entities that are under the authority of or have contractual relationships with one's agency (subsection (a)(1)(i)). It also forbids any other employment that would impair an employee's impartiality or independence of judgment (subsection (a)(1)(ii)). As a sole proprietor, the Employee would have both an employment and ownership relationship with her business. (See our Opinions No. 84-14, No. 84-12, No. 83-25, No. 83-3, No. 82-52, and No. 82-8 for examples of other sole proprietorship situations.) Her involvement with the business would therefore be prohibited by §3-103(a) if it were to contract with her agency or if her employment relationship to it were to otherwise impair her ability to do her State job.
The Employee indicates that her general plans are to market to the private sector; she noted in her original request, however, that the referral services would also be useful to her counterparts in the Baltimore area DVR offices.1 As she indicated, the purchase of interpreter services by Counselors for the Deaf is done by purchase order, both in terms of fees paid to interpreters and to a referral agency. We understand from the Employee that the geographical jurisdiction of her office of DVR is distinctly different from that of Baltimore area DVR offices in the geographical area where her proposed business would be operating. We have consistently held, however, that subunits of an agency are nevertheless parts of a single indivisible agency (see our Opinions No. 84-10, No. 83-5, No. 83-3, and No. 80-18), and therefore believe that purchase order contracts between any DVR unit and the Employee's private business would be a contractual relationship with her agency prohibited by §3-103(a)(1)(i).
We have reviewed the issues presented by this type of situation in view of the outside employment and interest exception regulations issued by us (COMAR 19A.02.01 and 19A.02.02) pursuant to the exception provision of §3-103(a). Basically, this provision allows certain otherwise prohibited employment and interest relationships "where such interest is disclosed or where such employment does not create a conflict of interest or appearance of conflict." In applying the criteria established by us to implement this exception, it is our conclusion that exception would not be appropriate to allow employees' private businesses to provide services to any DVR offices in these types of situations. Even if the Employee were not using her own service in connection with her duties in her own geographical area, she would be the sole person legally responsible for the contractual dealings between the private business and the agency, and would also be directly compensated by funds from her agency.
Moreover, there are appearance of conflict problems that would result from the general circumstances of this type situation if an employee's business were to provide referral services to DVR offices. In interpreting the application of the exception criteria in the Ethics Law and in our regulations, we have looked to the intention of this provision to avoid the development of conflict situations by generally barring employment and interest relationships with entities that do business with an employee's agency. We have therefore permitted sole proprietorship and private practice situations only under circumstances where the entity did not accept clients or referrals or otherwise do business with the individual's State agency. (See, for example, our Opinions No. 84-14, No. 83-20, No. 82-46, and No. 81-45.) We have permitted exceptions where there are relationships with the State agency only where we have been convinced that the relationships are so remote that it is clear that a conflict of interest or appearance of conflict is unlikely.
In our view, the type of situation described in the original request here does not present a remote enough relationship to support this conclusion. The Employee is one of only eight persons who provide deaf counseling at DVR. Though she is geographically separated from the Baltimore area counselors who might use her referral service, she has clear professional and organizational relationships with them. There are regular meetings of the counselors and there are also occasionally other situations where counselors from different offices must coordinate as to particular cases. Under these circumstances, we agree with the Employee's agency that there is sufficient potential for apparent or actual problems in a situation where an employee markets his business to his colleagues to require application of the Law to prohibit a business such as the Employee's referral service from doing business with any DVR office.
We believe, however, that if, as is now proposed, the Employee avoids any dealings with her agency as a user of her referral services, then the situation would be similar to others where we have found sole proprietorship businesses or practices allowable under the Law. If her business did not contract with DVR, the strict prohibitions of §3-103(a)(1)(i), would not apply. Nor, in our view, would there be an issue under the impairment provision of §3-103(a)(1)(ii), so long as the referral services are not in any way marketed to or used by her colleagues in the agency. We therefore advise the Employee that her business would be allowable under the Ethics Law, provided it does not provide referral services to or deal in any way with DVR. She should, of course, be aware of other provisions of the Ethics Law that continue to apply, particularly §3-104 (the prestige of office provision, which would bar her use of her official position, title or DVR status in advertising and marketing), and §3-107 (the information provision, which would prohibit use of any confidential agency information, such as client lists or employer information, in connection with her private business). She should also, of course, be aware that our opinion addresses only issues under the Ethics Law, and would not limit her agency's ability to establish additional conditions or limitations necessary to meet agency policy or administrative concerns.
Herbert J. Belgrad, Chairman
Reverend John Wesley Holland
Betty B. Nelson
Barbara M. Steckel
Thomas D. Washburne
Date: December 12, 1984
1 Although the original request here addressed the possibility of the business' serving DVR clients, the Commission was advised, at its meeting on the request, that the business would definitely operate without seeking DVR business. The discussion in this Opinion addressing this issue, however, has been retained, in order to provide general guidance to the agency and other State employees.