The Department of Human Resources (DHR or the Department) has presented an inquiry as to whether the Assistant Director of Training and Staff Development for the Income Maintenance Administration (IMA) may teach a course at a community college that is part of an IMA training program developed and monitored by her office. The Department is also concerned about whether these kinds of teaching activities could be undertaken by local public assistance personnel or IMA policy employees not involved in the training programs.

This issue was presented by a DHR Assistant Attorney General, and involves a Human Service Administrator who is Assistant Director for Staff Training and Development (STD) in IMA's Office of Program Support. The STD office is responsible for providing training in public assistance policies and procedures in the 24 local Departments of Social Services, for both existing and newly-hired employees. There are four professional trainers in the office, generally supervised by the Assistant Director. The office provides, usually about every four months, an in-depth eight-week program for new employees. It assumes that these newly-hired individuals have no knowledge or experience in public assistance administration, and includes four weeks each of complete how-to-do-it procedures training in the two programs of concern to the agency, Aid for Families with Dependent Children (AFDC) and Food Stamps. Both of these are primarily federally-funded programs, subject to significant procedural and policy direction from the federal government.

In view of the federal monitoring program and the importance of compliance with these policies and procedures, the agency, through the STD office, also provides continuing in-service training to local staff. This involves preparation and presentation of materials by the trainers at the local department. The training may, for example, be a one- or two-day seminar meeting to provide interpretations and information as to changes in the federal procedures, or new policy interpretations. The office also may process contractual requests for purchase of training services from private vendors in more general areas where training cannot be provided directly by the IMA.

The agency also sponsors an educational program. This is a specialized Associate of Arts (A.A.) degree program directed solely at IMA employees. The program was developed under contract by Cecil Community College and pilot tested there. It currently has two locations, at Dundalk Community College and the Community College of Baltimore (CCB); expansion is anticipated that would make it available in each of the major geographical areas of the State. The program is open only to IMA staff who do not have a Bachelor's degree; candidates are nominated by local departments based on criteria established by the particular Department. The program is a three-year part-time program offered during the evenings three semesters a year, and results in an A. A. degree. The program is without cost to the student, who commits in writing to a certain number of years of service to the agency, and also acknowledges that completion of the program does not automatically guarantee promotion.

The program is funded significantly by federal funds, with a match provided by the participating college, primarily by provision of teaching, administrative and other capabilities. Included are 23 hours of core courses from the college's general curriculum, and 12 hours of electives, also general college offerings. The remainder of the program consists of 27 hours (or 9 courses) in specialized public assistance areas, such as Legal Aspects of AFDC, Managing Worker-Client Interactions, Computer Applications in AFDC, and a practicum. The issue presented here arises because the Assistant Director is teaching, and wishes to continue teaching, a course in the program now operating at Dundalk Community College.

The Assistant Director has general supervisory and management duties regarding the implementation of the training program for new employees and the in-service programs at the local departments, as well as monitoring the contract process for purchasing training from private vendors. Her position description also indicates that she is responsible to "plan, direct, coordinate and evaluate the activities of public and private training delivery resources hired to provide specially designed curriculum for professional, para-professional and clerical employees. These resources include colleges and universities such as...Dundalk...." More particularly, with regard to the A. A. program, she provides technical and liaison assistance to colleges and students, and reviews contracts for completeness and accuracy. She processes invoices, in her absence represents the Director of the Office of Program Support in contract negotiations, and prepares correspondence regarding the program for signature by the Program Support Director or others. The Assistant Director has been listed in the contract as the Project Officer, though she indicates that she has been deleted from the Dundalk contract and she is no longer the primary negotiation liaison person on this contract.

According to the Assistant Director, the program involves "specialized courses are by definition involved with the Income Maintenance function. The nature of these courses requires instructors to have knowledge of, and hopefully, experience in, IM. Courses have been taught by a number of IM and LDSS staff members." This view is confirmed, in part, by the Director of IMA. She indicates that the availability of instructors varies depending on the course subject. For some more general subjects, such as in the legal and computer areas, persons not affiliated with IMA or DHR can be found. In some of the areas more specific to the public assistance programs, however, the IMA Director indicates that the colleges have trouble finding teachers with the requisite experience and academic qualifications and tend to recruit instructors from the local departments. While she acknowledges that there are some appearance issues, especially as to headquarters policy managers involved in the training program, the IMA Director is concerned about the availability of teachers, particularly as the program expands to non-metropolitan areas.

This A. A. program is now and expected in the future to be based at community colleges, which for purpose of the Public Ethics Law (Article 40A, Annotated Code of Maryland, the Ethics Law) are State agencies. (See Ethics Commission Opinions No. 80-9 and No. 80-21.) Since we have concluded that State agencies are not entities for purposes of §3-103(a)(1)(i) of the Law, we do not believe that this situation would come within that section's strict bar against employment with an entity that contracts with one's agency. (See Opinions No. 81-7, No. 82-15, No. 82-37, No. 82-51 and No. 83-22.) We have, however, recognized that in some situations secondary employment with another State agency could present conflict of interest situations that would be barred by the more general impairment provision of §3-103(a)(1)(ii). Particularly, we have held that this prohibition could apply to secondary State employment situations, "where there are clear personal and organizational conflicts intended to be addressed by the Ethics Law that cannot be controlled by the personnel and administrative process." The issue, then, is whether the circumstances presented here present the kind of issues that require application of this provision, or create problems under the disqualification and prestige provisions of §3-101 and 3-104.

We have on several occasions considered teaching activities by State employees. In Opinion No. 81-7, for example, we allowed an employee in the Department of Budget and Fiscal Planning to teach at a community college. Opinion No. 82-15 generally discussed application of the Ethics Law to State Board of Higher Education employees who wished to teach. Opinion No. 83-40 dealt with members and staff of the Real Estate Commission and the application of §§3-103 and 3-104 to their teaching units of real estate licensing courses. Opinion No. 84-18 involved application of the strict §3-103(a)(1)(i) prohibition, but the subject (a Department of Education employee) held a management position that impacted on the private college where he wanted to teach, very like the situation presented here.

In evaluating all of the circumstances of the particular situation presented by the Assistant Director, we conclude that her teaching affiliation with the College would be barred by §3-103(a) (1)(ii) of the Ethics Law and raise significant issues under other provisions of the Law. We realize that the Assistant Director would propose to refrain from negotiation or other contract activities. Disqualification has not generally been viewed as a cure to a §3-103(a) violation, however, and, as set forth in our Opinion No. 83-40, this type of employment could also present issues under §3-104. While job duties are a significant factor in evaluating the application of the inconsistent employment provisions of §3-103(a) (1)(ii), in our view the evaluation of a person's duties under this section must be of the duties and responsibilities likely and expected to be a part of his job in the normal course of the agency's operations. The Assistant Director here is the primary agency manager responsible for policy development and operation of the A. A. program. This represents a significant part of her unit's function, and she would normally be significantly involved in many activities relating to the functioning of the program as to her particular private employer and other college participants in the program.

We are concerned in these circumstances that the public would be unlikely to know or understand the extent to which reorganization of duties or non-participation would avoid a conflict of interest or appearance thereof. Also, given the interaction of policy and general management aspects of the program with the contract negotiation process, it is not clear whether adequate disqualification is even practical. We therefore advise the Department and the Assistant Director that her proposed teaching activities with the Community College would be inconsistent with the employment prohibitions of §3-103(a)(1)(ii) of the Ethics Law.

Given the importance of job responsibilities in application of this provision, however, we do not believe that it would necessarily be applied so restrictively to other agency employees whose jobs do not involve the management and operation of or otherwise impact on the training program. Local IMA personnel having operational expertise in the public assistance fields covered by the A. A. program could possibly be teachers, for example, as could experts in program offices at IMA headquarters. The agency and these individuals, of course, must continue to be aware of potential application of the participation, prestige and information prohibitions of §§3-101, 3-104 and 3-107 of the Law. Depending on the circumstances, outside teaching activities could be barred by these provisions, and issues raised in these situations should be presented to the Commission. We conclude here only that for individuals who are not managers of the training program (or whose duties do not impact on it), the restrictive and absolute bar of §3-103(a)(1) would not come into play.

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

Date: September 24, 1985