An opinion has been requested as to whether a social worker in the Project HOME Program at the Baltimore County Department of Social Services (DSS) may have a private business providing social services within the community and general field in which he works.
The Requestor is a case manager employed, for personnel purposes, by the Spring Grove Hospital (Department of Health and Mental Hygiene, DHMH).His position, however, has been loaned to the Department of Human Resources (DHR) for the Project HOME Program. He works in the Baltimore County part of the program. Project HOME is a program established within DHR to provide social service assistance to individuals being discharged from State mental health facilities in a major Statewide effort to deinstitutionalize the mentally ill. The program represents a coordinative effort between DHMH and DHR to provide a continuum of mental health and social services from hospital to the community. Baltimore County's Project HOME clients come primarily from Spring Grove.
Basically, the process begins at the hospital when a determination is made that a patient has received the most benefit from medical psychiatric treatment and the hospital is no longer the least restrictive environment required for the patient. To be involved in the program, individuals must not be a danger to themselves or others and must be basically able to function. According to Spring Grove's Deputy Administrator (and the Requestor's DHMH supervisor), many patients will have had some transitional preparation through participation in a psychosocial program. These are day care programs run by private providers, often at or near a local mental health clinic, and funded by DHMH's Mental Hygiene Administration. These programs are viewed as a form of mental health treatment designed to give patients an experience off the hospital grounds and help them to begin to learn some of the functional aspects of living in the community, such as dealing with money and balancing a checkbook.
When a discharge referral is made by the hospital to Project HOME, the DSS Director of the program assigns it to one of the agency's four case managers for evaluation. If the evaluation results in a determination that the patient's situation is appropriate for deinstitutionalization, then the case manager prepares an aftercare plan, as required in §10-809, Health-General Article, Annotated Code of Maryland. The case manager then works with the client, the hospital, private providers, and other public and private agencies both in pre-release preparation and staying with the case after release on a more or less permanent basis. The Director indicates that some patients may be reinstitutionalized, and a few may move independently into the community. For most individuals, however, especially those who have been in an institutional setting for most of their lives, the Project HOME Program represents a permanent structure for their integration into the community.
Generally, the Requestor in his duties as case manager is responsible for planning the client's activities, helping to establish goals and finding a home for the individual. He also establishes "linkages" between the individual and other public and private entities. This would include ensuring financial resources, such as working with the public assistance or Social Security offices, establishing medical links, working with psychosocial providers, and exploring employment and other resources. This process involves, apparently, interacting with any of the many public and private entities that would be necessary in the circumstances of a particular client. This interaction includes pre-release planning meetings as well as contacts in connection with required monitoring and follow up action.
This inquiry is presented by the Requestor in view of his tentative plans to expand an existing community-based human services endeavor. His current business is a nonprofit organization established prior to his State employment. The firm provides various services, such as in-home care by nurses aides, homemakers and companions, counseling and service evaluations, and emergency response. Its market is primarily older adults. The Requestor indicates that the entity is not licensed by any State agency as he has been informed by licensing authorities that provision of maid-type services that do not involve professional medical personnel need not be licensed. He states that the firm currently has no connection with the State at all--it receives no referrals, no third party payments and no grant funds from any State agency.
The Requestor's plans for expansion are very speculative and directed in very general terms to the notion of expanding community based services to a broad population of mentally or physically impaired clients. The most specific idea that he is currently in a position to articulate involves possibly establishing "a business operation to provide on-the-job training and employment opportunities for handicapped individuals." He indicates an expectation that referrals for the program would be open to the general community, and his inquiry here would be whether such an enterprise would be able to open the referral process to clients of the DSS or other State agencies. He anticipates that the operation would be in Baltimore County. According to the Program's Director, the population of the project HOME Program in the County is relatively small (about fifty), and makes up a very small portion of mentally and physically handicapped individuals who might be benefited by a business as proposed by the Requestor.
Moreover, most Project HOME clients would not, in the Director's view, be expected ever to be employable or involved in an employment or employment training program. Other units in both DHMH and DHR, however, could very likely be involved with clients who could be eligible for such a program, and these are units with which the Requestor would be expected to coordinate in his duties. These include, for example, DHR's foster care and home care programs and DHMH mental health clinics. Also, some clients may be using psychosocial providers funded by DHMH and some would be supported by medical assistance, Medicare or DHR public assistance programs.
The issues presented by the Requestor are at this point very speculative, since he has not firmly defined his future plans. The obvious general issue, however, would be whether application of the Public Ethics Law's §3-103(a) outside employment and financial interest prohibitions would bar his activities absolutely (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law). Under prior Commission Opinions, his affiliation with the business as currently operating and as expanded would result in both an employment and interest relationship for purposes of this section. As the current business is described, however, we do not believe that there is an authority or contractual relationship that would bring it within the subsection (a)(1)(i) prohibition against being employed by or having a financial interest in an entity that is under the authority of or contracts with one's agency. Nor do we believe that his employment relationship with the existing business is sufficient, in itself, to impair his impartiality or independence of judgment as contemplated in the inconsistent employment bar of subsection (a)(1)(ii).
As to expanded activities, either as a general matter, or as to the more specifically defined plans for an employment training program, the question is whether the Requestor's official duties and his affiliation with two State entities (DHR and DHMH) that are so extensively involved with the population he would be serving, would raise so many potential issues under the Ethics Law as to warrant Commission advice against such expansion. We note as a preliminary matter that the specific language of §3-103(a)(1)(i) addresses relationships with agencies with which an employee is "affiliated." Thus, though the Requestor's employment, as a technical matter, is with DHMH, we believe he must be viewed as affiliated with DHR. In fact, given the close relationship of the two agencies in the mental health/social services continuum of care for Project HOME clients, we believe we must view him as affiliated with both of these agencies.
Given the uncertainty of the Requestor's future plans, specific definitive guidance is not possible here. However, initial clear advice to him is that any private venture that requires licensing by either agency, or that becomes a provider of care under any program of DHMH or DHR, would be within the strict prohibition of §3-103(a) (1)(i), and would be allowable only if excepted pursuant to Commission outside employment and financial interest exception criteria. This is consistent with prior opinions regarding private practices and private businesses which we have approved, with the condition that the private entity not engage in transactions with the employee's State agency. (See, for example, our Opinions No. 84-32, No. 84-14, No. 83-20, No. 82-46 and No. 81-45.) This proscription would apply, as an example, to clients of a job-training program that are clients of any DSS office, or in the Project HOME Program.
Whether an exception would be allowable would depend on the specific situation. Generally, in applying the exception criteria in these types of situations, our focus has been on evaluating relationships between private and official activities, to assure that they are sufficiently remote to avoid a conflict of interest or appearance of conflict. We have also considered the nature and scope of a person's private duties and in some cases management responsibilities with the private firm have prevented application of the exception provisions. The same approach has been followed in applying the inconsistent employment provisions of §3-103(a)(1)(ii), where there is no contract or employment relationship. Acceptance of referrals or clients affiliated with one's agency has thus been forbidden even where there was no specific authority or contractual relationship with the person's agency. (See Opinions No. 81-45, No. 82-49, and No. 83-20.) Also, in recent Opinions, we have expressed concern about private activities that deal with units of the agency with which the employee is involved, even where the private activity does not relate directly to the employee's duties. (Opinions No. 84-25 and No. 84-27.)
The situation here is that the Requestor's agency affiliations, and his specific duties, involve him extensively in interaction with other units of State government, both in DHMH and DHR and otherwise. These units in turn provide services to a significant portion of the population that his expanded private business (either a job-training program or otherwise) would seek to serve. As the situation is now presented to us, we do not believe that the potential for issues to arise from these relationships is so substantial that he should be advised to avoid the activity altogether. We suggest, however, that in developing his expansion plans, he proceed cautiously, being very careful to keep in mind the provisions of the Law discussed above. Should any activity require licensing by either DHMH or DHR, or if the business were to become a grantee/contractor of either agency, or through any client become a provider of care, then the Requestor's involvement with the activity would be strictly prohibited by §3-103(a), unless an exception is allowed based on review by us of the specific situation.
Also, given the Requestor's extensive involvement with the many State provider agencies that serve the population potentially served by his private business, he should be careful in defining his client population and in developing relationships with other agencies. The Law does not generally prohibit State personnel from having private relationships with agencies other than their own. (See, for example, our Opinions No. 82-8, No. 81-40 and No. 80-12.) The Law's prohibition against any employment that would impair a person's impartiality or independence of judgment, however, could serve to bar activities of a private business that bring the Requestor into private relationships with officials, even of other agencies, with whom he deals in his official capacity. (See our Opinions No. 84-27 and No. 84-25, for examples of this concern considered in the context of the exception regulations.)
Relationships with other agencies that present this issue should be avoided, or considered very carefully with the Requestor's agency supervisors or Commission staff, or formal advice could be requested based on the particular circumstances. The Requestor should also be aware that the Law's prohibitions against use of prestige of office (§3-104) and use of confidential information (§3-107) would bar him from any use of his official position or agency client records in marketing private services.
Herbert J. Belgrad, Chairman
Reverend John Wesley Holland
Betty B. Nelson
Barbara M. Steckel
Thomas D. Washburne
Date: January 29, 1985