85.16

OPINION NO. 85-16

An opinion has been requested concerning whether a social worker (the Requestor) affiliated with the Circuit Court and a county Department of Social Services (DSS) may have space-sharing or other arrangements with a therapist who is seeing a client referred from and funded by the DSS.

This request was presented by an employee of the Howard County Circuit Court, as a result of issues raised by a Services Supervisor in the Howard County DSS. The Requestor is on the payroll of the Howard County Circuit Court (the Court). Her salary is funded by the County and the position was created by the County Council in response to requests from the Court for a social worker to perform adoption and custody investigations. Her work location is within the Department of Social Services, however, which participated in her hiring and selection (the Administrative Judge's secretary also participated). The Services Supervisor is identified as, and asserts himself to be, her supervisor.

The Requestor's precise relationship to the County DSS is unclear, however. The office of the County's Administrative Judge indicates that the Requestor serves at the pleasure of the Judges and is answerable solely to them. She receives her assignments solely by Orders issued from the bench or by a Master, and neither the Services Supervisor nor other DSS personnel have any authority or discretion to assign her work. She sends her workload reports to the Administrative Judge and the results of her investigations are submitted to the assigning judge either as a written report or by personal testimony. Leave requests, hours of work, and performance evaluations are handled in the office of the Administrative Judge.

The Requestor conducts custody and adoption investigations pursuant to court direction. The adoption investigation is the process conducted in all adoption cases prior to a court's entering a final decree of adoption. It is an independent investigation conducted in a step-parent adoption, foreign adoption, or where a child has originally been placed by an agency, public or private. The Requestor interviews the parties and references, visits the home, and prepares a report with recommendations to the Master or the Judge. Custody investigations are more complicated and tend to involve more sensitive and litigious issues. They take longer and may involve court testimony rather than a written report. Though the Services Supervisor states that he is responsible for "supervising her day-to-day work," the Requestor indicates that if she has questions she contacts the Master or Judge involved. All of her records and case files are at the Courthouse.

The Requestor has a part-time private practice that pre-dates her employment with the Court. It is a general practice involving counseling in a variety of areas for both children and adults. She does not accept any mediation or marital counseling that is likely to result in custody issues that could be presented to the Court. If a private client were to become a subject of a court investigation, the matter would be referred to an investigator in another county, as is the practice where conflicts arise from personal or economic relationships. The Requestor states that she gets her private clients by word-of-mouth.

In her private practice the Requestor currently shares office space with a social worker who is an employee at a private facility, but who also has a part-time private practice. (The space is also shared by a psychologist, who appears not to be affiliated with the State.) The space was previously leased by a full-time therapist who relocated to California and sought to find a tenant to take her place to avoid liability on the remainder of the lease. She learned of the Requestor through a third party mutual friend, and was previously personally acquainted with the social worker. Both the Requestor and the social worker state that they were neither acquaintances or colleagues prior to their undertaking this space arrangement. Both parties are signators of the lease. They share telephone costs and the cost of some furniture purchased from the prior tenant. There is no receptionist or other shared expense. The rent is paid by three individual checks. According to the Requestor, she and the social worker do not share any cases, do any group therapy together, consult on cases, or generally make referrals to each other. She states that her practice does not involve crisis oriented therapy, and would not present a need for emergency coverage by another therapist.

This request arose as a result of the Services Supervisor's concern over referral by the prior tenant to the social worker of a client funded by the DSS. This referral is part of the Department's program for purchasing from private vendors supportive services in its foster care program. These supportive services may be purchased from a foster family or from another private resource in the community. The child must be determined to need the service because of a health (physical or mental) condition, or an emotional or behavioral problem. The service provider must be determined to be capable, by virtue of special training or experience in providing the needed service. The Department of Human Resources (DHR) regulations dealing with this program (COMAR 07.02.11.10) provide that the services to be provided are to be documented by the local director or his designee, other than the caseworker. In this particular case, the referral to the social worker was approved by the DSS caseworker, and she has seen and continues to see the family. No official contract authorizing DSS payment has been executed, pending review by this Commission.

This request raises issues under §3-103(a)(1)(i) of the Public Ethics Law (Article 40A, §3-103(a)(1)(i), Annotated Code of Maryland, the Ethics Law), which prohibits an employee from being employed by an entity that contracts with his agency. Under our consistent approach to private practice situations, the Requestor would be viewed as having an employment relationship with her private practice. Also, the social worker's practice would be involved in a contractual relationship with the County DSS if she is retained as a supportive services counselor for this family. (See our Opinion No. 84-10 for a discussion of this specific program.) If the Requestor's relationship with the social worker is viewed as involving a single entity for purposes of §3-103(a)(1)(i), and the DSS is viewed as an agency with which the Requestor is affiliated as set forth in that section, then the prohibition would apply, unless an exception could be allowed.

In evaluating all of the circumstances of this request, it is our view that the prohibition of §3-103(a)(1)(i) would not apply here. First, whatever the Requestor's relationship may be to the County DSS, it is our view that under the circumstances here, she would not be "affiliated" with it as that term is contemplated in §3-103(a)(1)(i). The Requestor is on the payroll of and in a position assigned to the Court, and the Court's Administrative Judge is identified as the "head of her department." Though the Requestor is physically located in DSS and the Services Supervisor believes that he is in some way her supervisor, he does not have any discretionary authority over her work assignments from the Court, and she has no duties that relate in any way to the work of the DSS.

In two prior cases where this issue was addressed, we found: 1) that a member of the Maryland Transportation Commission (an advisor to the Secretary of Transportation) was affiliated with the Motor Vehicle Administration (a unit within the Department of Transportation), and 2) that a social worker from a DHMH hospital assigned to a local DSS to work on a project involving community relocation of hospital residents was affiliated with both DHMH and DHR. However, both of these situations involved substantive involvement and relationships between the two agencies or units involved. The Requestor's contact with the County DSS does not involve the substantive DSS program, and in our view the circumstances of her relationship here with the County DSS require a conclusion that she is not affiliated with it as contemplated by §3-103(a)(1)(i).

Moreover, based on the facts as presented to us, the relationship between the Requestor and the social worker does not appear to result in an entity that contracts with DSS by virtue of the social worker's provision of counseling as part of the foster care supportive services program. The Ethics Law defines "business entity" to be any entity, regardless of form, and generally this term has been applied even where there is no formalized corporation or partnership. However, we do not believe that this cost sharing arrangement is an entity for this purpose. The bills are paid with three separate checks, and it has been stated that the parties do not have any personal or professional relationship with each other at all. Apparently none of the tenants at this location markets their services as part of a single organization or otherwise engages in a coordinated private business endeavor with the others.

We have on several prior occasions considered the propriety of private practices maintained by State employees in a variety of professions. (See, for example, our Opinions No. 85-4, No. 85-1, No. 84-22, No. 84-14, No. 83-31, No. 83-13, and No. 82-46.) When these situations have been approved, it has been with the consistent advice that the practice could not involve referrals from the individual's agency or acceptance of clients who have been in any way affiliated with the agency, either directly as clients or through family members. This has been the approach whether or not the strict provisions of §3-103(a)(1)(i) applied, and has been based on the potential application of: the §3-101 disqualification provision, and possible official involvement in referrals or discharge recommendations; §3-104's bar against improper use of prestige, and possible concerns about the potential for actual or apparent abuse of official position by individual employees who refer clients to their colleagues or their own practices; the §3-107 bar against use of confidential agency information, and the possible use of agency information in marketing services or acquiring clients; and the §3-103(a)(1)(ii) inconsistent employment provision, given the potential impact on carrying out of official duties if referral to agency colleagues were an alternative.

In Opinions No. 82-46 and No. 83-7 we dealt with situations where a private practice involved affiliation with other practitioners or organizations. One activity was allowed based on the assurance that the practice would not be on the agency's referral list, and the other was prohibited because the private entity was an agency referral source. The Requestor should be aware of these policies, and of the principles discussed above dealing with private practices as a general matter. Our conclusion in this request is that her activities and relationships are not barred by the Ethics Law as it has been interpreted in these and other Opinions. This conclusion, however, is based on the facts as presented to us by the Requestor, both as to the nature of her relationship with the social worker and her affiliation with the County DSS. It also assumes that her practice does not involve any cases referred from or otherwise involving either the Circuit Court or the County DSS. Should any of these circumstances change, the Requestor should seek further guidance from the Ethics Commission.

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

Date: September 24, 1985