85.10

OPINION NO. 85-10

An opinion has been requested as to whether a dietitian at the Potomac Center (the Employee) may have outside employment as a dietitian with a private community care provider funded by her agency. The Employee is a registered dietitian who works for the Mental Retardation and Developmental Disabilities Administration (MRDDA). She is officially assigned to the Western Maryland Center, which provides satellite food services to the Potomac Center (the Center). She thus spends one day per week at Western Maryland Center, and is otherwise assigned to the Potomac Center as its dietitian. The Potomac Center is an MRDDA facility providing residential care to profoundly and severely retarded adults. It has a capacity for 125 residents plus a 25-bed infirmary, and tends to have a population close to this capacity.

The Employee meets each new client and does a nutritional assessment and history. She is part of the interdisciplinary team and at the team's initial meeting makes dietary recommendations to deal with any problems, such as weight, anemia, or tooth problems. She continues to monitor the client as part of the team's quarterly and annual meetings; in connection with these meetings, she makes another assessment of the individual's status, reviewing his chart, watching him eat, and recommending any appropriate changes. One of the team's functions is also to evaluate the client to determine whether he can be released to a less restrictive environment. The Employee participates in this as a member of the team. According to the Employee, as well as other Potomac Center and Western Maryland Center personnel, however, dietary considerations are not generally involved as limitations on discharge decisions. The Employee indicates that the Center food program is so controlled that most clients who have been there for a while are on a good maintenance diet. They may require calorie or sodium restrictions that are not unusual or difficult to provide in a different environment.

Agency staff also indicate that the interdisciplinary team's responsibility in the discharge process is to evaluate and make a recommendation as to whether a client should be discharged. The team's input as to where the individual should be placed in the community is described as minimal. Once a recommendation for discharge is made, referral is made to private facilities who can provide the care. Determination of placement is based on subjective criteria, such as the person's social behavior, skill development, and family preference. This selection process and negotiation of placement is done by a social worker. From the Potomac Center placements are made only in Western Maryland, except where specialized care is required. Actual discharge papers are signed by a physician.

Providers of care in this system are private non-profit entities generally funded almost entirely by MRDDA. Under this program grant awards are made on a competitive basis, considering the nature of the program offered, including compliance with MRDDA's licensing criteria. Private organizations are monitored and evaluated for funding in three ways. First, they must be licensed annually and are therefore evaluated for compliance with the licensing criteria by the agency's Licensing Division. Second, MRDDA contracts with the Accreditation Council for the Mentally Retarded and Developmentally Disabled (ACMRDD) for evaluation of organizations against national standards for programs serving the developmentally disabled. This is a national organization that establishes standards and evaluates programs for certification in accordance with these standards. Third, continuum of care teams operate out of MRDDA's headquarters and regional offices to regularly inspect and evaluate the functioning of community care programs funded by the agency. According to MRDDA's Chief of Community Programs none of these monitoring activities involves staff from the State residential centers.

The Employee's particular outside activity involves provision of dietary consulting services to a group home provider in Frederick County. The organization has sixteen home units serving fifty-four adult clients, and received over $700,000 in Fiscal Year 1985. The Employee performs services for the provider very similar to those she performs at Potomac Center. She goes through the houses, looks at the clients and does dietary assessments. She reviews doctors' requirements as to special diets, does menu planning and works with individuals at the houses in meal preparation. She works one to two hours on Saturdays at approximately $25 per hour.

The MRDDA licensing regulations (at COMAR 10.22) address dietary matters. Staffing provisions include a requirement for competent personnel in the food service area, and resident care policies are required to be written regarding dietary services. Specific regulations dealing with dietary matters indicate that the responsible person in the house "should receive regularly scheduled consultation from a registered dietitian or person with suitable training." There are detailed requirements regarding staffing, adequacy of diet, frequency of meals, posting of menus, and other aspects of dietary services. The Program Director of the provider entity indicates that concerns were raised by MRDDA last year about its compliance with these provisions, and the Employee was hired to assist them in complying.

This request raises issues under the exception provisions of §3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law). This section prohibits an official or employee from being employed by an entity that is under the authority of or contracts with the employee's agency. The private provider here is an entity that is funded almost entirely through an MRDDA grant, and its continued existence is dependent on compliance with substantial regulatory and licensing requirements. The Employee's affiliation with it would therefore be in violation of §3-103(a), unless an exception can be allowed, pursuant to Commission exception regulations (published at COMAR 19A.02.01). These regulations implement language in §3-103(a) applying the employment prohibition, "except as permitted by regulation of the Commission...where such employment does not create a conflict of interest or the appearance of conflict...."

The regulations set forth criteria designed to assist in evaluating the relationship between the individual's agency program or duties and the outside activity. An exception can be allowed, based on review of the regulatory criteria, when it is determined that this relationship is sufficiently remote that the employment would not present a conflict of interest or the appearance of conflict. The regulatory criteria include review of aspects of the individual's official agency duties and affiliations. They also include review of the person's activities with the private employer, including, for example, consideration of whether the individual's private duties involve implementation of the agency contract or compliance with agency regulations, and whether the individual's compensation is directly from the agency contract.

In applying these criteria to the situation presented here, we conclude that an exception would not be appropriate. We recognize that the Employee's area of expertise is not one that would be determinative in a discharge decision, though we assume that as a professional who sees the clients, she has general input into a team's recommendation. Her private employer is also within the geographical area where clients discharged from the Center could be placed. However, we do not believe that a regulatory determination as to the Employee's agency duties is necessary here, as her activities with the private provider raise, in our view, substantial issues as to application of the regulatory criteria. The Employee was apparently employed by the entity for the purpose of assisting it in complying with agency regulations. Her services directly reflect the requirements that MRDDA establishes as to dietary services of private providers. Also, given that the significant percentage of the provider's funding is from MRDDA, it is very likely that her compensation is directly funded by her agency's grant funds.

Under all of these circumstances we are unable to conclude that the relationships between the Employee's agency and her private employer are sufficiently remote to warrant granting an exception in this situation. This conclusion is consistent with several prior Opinions1 involving proposed outside employment by MRDDA residential personnel with private providers funded by the agency, where we have consistently barred dealings by such individuals with providers. We have been concerned in these situations about the close and continuing relationship between residential facilities and private provider entities which serve an interconnected patient population. Moreover, §3-103(a) of the Ethics Law reflects a general legislative determination that State employees and officials should not have employment relationships with private entities that have contractual and regulatory dealings with their agency. We do not believe as a general matter that private entities whose existence (both as a matter of finances and regulations) depends upon agency approval should be able to hire agency employees to assist them in maintaining this approval.

We believe that the Employee's relationship with the private provider entity here raises these and other concerns similar to those considered by us in the cited Opinions, and therefore advise her that this affiliation is within the prohibition of §3-103(a), and that this prohibition cannot be overcome by application of the statutory and regulatory exceptions.

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

Date: August 5, 1985

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1 See our Opinions No. 84-14, No. 84-3, No. 82-41, and No. 82-40.