85.08

OPINION NO. 85-8

An opinion has been requested as to whether the §3-101 non-participation provisions of the Public Ethics Law (Article 40A, §3-101, Annotated Code of Maryland, the Ethics Law) would apply to the Clinical Director of a State health center (the Center) so significantly as to result as a practical matter in an Ethics Law bar to the Clinical Director's spouse's service as a contractual attorney to the facility.

This inquiry is presented by an individual (the Attorney) who is currently serving, on a contractual basis, as legal advisor to a residential health facility within the Department of Health and Mental Hygiene (DHMH). Her spouse is a physician employee of the Center who is being considered for appointment as its Clinical Director. The individual's contract is due to expire in July and she has inquired as to whether Ethics Law considerations arising from her spouse's situation would bar her renewal of the contract. The Attorney has been advised that the Ethics Law applies to her spouse; it does not apply to her as a contractual employee. We therefore cannot advise specifically as to her contractual status. Rather, the issue addressed is whether her spouse would in carrying out his official duties be in violation of the Law based on her service as a contractor to his agency.

Application of the Law in the context of this issue depends upon the relationship between the Center's contractual attorney and the Clinical Director, particularly in view of the services that are to be provided by the Attorney pursuant to paragraph II of her contract. This paragraph provides that the contractual attorney would provide the following services:

Legal advisor for Physicians for regulation "D" hearings, provide legal assistance in other matters such as: patient treatment and rights, patient abuse by staff and other patients, patients rights regarding behavior modification, use of guardianship, etc. Develop policies for patients regarding searches, patient funds, etc. Develop educational seminars re: "patient's rights, abuse, records, etc."

The DHMH General Counsel and others involved in this request generally describe the Attorney's role as to be an on-site advisor to provide legal assistance to Center managers in day-to-day operational matters as they arise. With regard to the general responsibilities noted in paragraph II of the contract, for example, the Attorney indicates that she does get involved in policy development where situations arise requiring a general policy to be established. In this connection she tends to work in concert with a team involving both medical and administrative personnel at the facility. Very often these kinds of projects are also reviewed by the Attorney General's Office or the Human Rights Advisory Board before becoming final policies of the facility. These matters apparently involve some coordination and work with the Clinical Director, who serves as the general supervisor of all the physicians in the facility. The Attorney's primary interaction is with the Superintendent, who is ultimately responsible for the administrative, as well as medical, matters within the Center's jurisdiction.

The Attorney also assists the Center in regulation "D" hearings, where a hearing officer reviews presentations by hospital physicians recommending involuntary commitment of an individual. These hearings result from situations where an individual may be admitted for observation and, based on an evaluation by hospital physicians within three to ten days, a determination is made that the individual is dangerous to himself or society and incapable of or unwilling to admit himself. In this situation the Attorney may serve as legal advisor to the hospital physicians in appearing before a hearing examiner to support involuntary commitment. The physician may also be represented by a lay presenter or social worker rather than by the hospital attorney.

Another aspect of the Attorney's duties is her appearance as representative of the hospital and the hospital's physicians in hearings under Title 12 of the Health-General Article of the Annotated Code involving conditional release and revocation hearings. These are hearings dealing with individuals committed to the facility by the courts, having been found incompetent or not guilty by reason of insanity. The conditional release hearings are determinations as to whether the individual is sufficiently recovered or rehabilitated to be released. The revocation hearings involve review where the individual has taken some action or otherwise behaved in such a way that a conditional release needs to be revoked. In any of these activities the Attorney is responsible for supervision by the Office of the Attorney General, and matters involving controversy or significant legal issues would be handled by that office.

All parties have indicated that the involvement and relationship of the Clinical Director and the Attorney does not involve economics and particularly does not involve negotiation of the Attorney's contract or the definition of the nature of the Attorney's duties. The relationship arises solely as to issues where both are involved in development of policy matters or where the Clinical Director is involved as the supervisor of a physician whose actions may be involved in regulation "D" or conditional release or revocation hearings. As the supervisor of clinical personnel and the individual responsible for medical matters involving patients, the Clinical Director would be expected to coordinate with the Attorney on a regular basis as to matters in which she is advising the Center pursuant to her contract. According to the Superintendent of the Center, however, there has been no controversy regarding this relationship, and the nature of the activities would not be likely to result in an operational conflict between the Attorney and the Clinical Director.

This request raises issues primarily under the non-participation and prestige provisions of 3-101 and 3-104 of the Law.1 In our Opinions No. 80-17 and No. 81-37, we dealt with these issues, and concluded that relationships of spouses to agencies would be allowable provided that the employee did not participate in any way in decisions relating to the spouse's employment contract with the agency. In particular, in Opinion No. 81-37 we advised that a Director of the Maryland Arts Council should remove himself completely from any sign-off or other matters relating to the decision to employ his spouse as a scholarship juror with the agency. The attorney and her spouse have been advised that this provision would apply and have indicated (and the Superintendent and DHMH General Counsel have confirmed) that the Clinical Director is not in any way involved in matters relating to the contractual relationship of his spouse to the agency. Also, the contract currently existing between the Attorney and the Center was negotiated prior to her spouse's employment with the agency, either generally or as Clinical Director.

We have not in prior opinions considered as a general matter how participation in substantive matters relating to implementation of the agency's program would be covered by this prohibition where the economic impact on the spouse is not immediate or direct (even though the performance of the spouse could impact on contract renewal). Section 3-101(a) prohibits participation by an official in a matter in which he or a spouse has an interest. It also bars participation in a matter which involves as a party an entity with which the spouse has an employment relationship. In our view the Attorney, in carrying out her duties, would not be viewed as having an interest in a matter relating to a commitment hearing, a revocation hearing or a general policy. Moreover, even if she is also viewed as a sole proprietor entity which contracts with the agency, we do not believe that her involvement in a hearing matter or policy matter pursuant to her contract in these particular circumstances would be viewed as involvement as a party, as that term is considered in the context of §3-101. In this situation the spouse is a contractual employee and relates functionally to the agency and those involved with the agency as an employee rather than as a vendor.

We do not generally believe that professionals providing personal services would in every case be excluded from coverage under the Ethics Law. In fact, even in this situation we advise that her interest, as a vendor of services, in negotiating a contract regarding those services does involve an interest in the private practice entity that is contracting with the Center. Her spouse's participation in this contract "matter" would be forbidden by §3-101, as it involves as a party an entity in which his spouse has both an interest and an employment relationship. He would also be barred by both §3-101 and §3-104 from any evaluative duties or other activities that would relate to decisions regarding the quality of her service as attorney, and which could ultimately be a factor in determinations as to contract renewal.

We recognize, however, that the particular situation here involves personal professional services under which the Attorney is an advisor to and advocate of the facility. Though provided pursuant to contract, the services bring her more into an employment relationship with the facility. We therefore conclude that the involvement of the Clinical Director in substantive matters where his spouse may be providing legal advice would not be participation in a matter as prohibited by §3-101 of the Law.2

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

Date: June 19, 1985

——————

1 Section 3-103(a) of the Law prohibits an individual from being employed by or having an interest in an entity that is regulated by or contracts with his agency. Our general view (expressed in our Opinion No. 80-17 and others) is that employment of spouses of State officials and employees need not necessarily be attributed to the employee as an interest or employment as contemplated by §3-103(a). We do not believe that the circumstances presented here require any different approach.

2 We wish to make clear, of course, that our Opinion deals only with application of the Ethics Law. We do not in any way purport to comment on or advise as to the wisdom of this approach from a DHMH standpoint, or impartiality or other issues arising as to the Attorney's performance of her duties under the contract.