85.21

OPINION NO. 85-21

The Department of Human Resources has inquired as to whether a Home Care Aide (the Employee) in a local Department of Social Services may have outside employment with Home Call, Inc., a private vendor of home care services to the agency.

The Employee works as a homemaker aide in the Adult Services Division of the Montgomery County Department of Social Services (MCDSS), which is a local unit of the Department of Human Resources (DHR or the Department). The home care services program is established in Article 88A, §84-87, Annotated Code of Maryland, and implemented in COMAR 07.02.15. The basic thrust of this program is to assist elderly and chronically ill individuals to function in an independent living situation, free from abuse or neglect, by providing in-home and other supportive and professional services. The Adult and Family Services supervisor in the Department indicates that the home care aides are used in just about any way necessary to help keep a person at home. The aides may do light chores, assist in budgeting and nutrition planning, provide transportation, and in general, do everything except heavy chores and provision of medical services.

The goal of the program is to provide a comprehensive range of community services to elderly persons to enable them to remain in their homes or in other independent living arrangements. The DHR is authorized to conduct research and training programs, to use grant funds from federal, State and private sources, and to "contract, where feasible and desirable, with public agencies, nonprofit private organizations, and volunteer groups for the provision of community home care services and group nutritional dining services." The Community Home Care Program includes purchase of services from private vendor agencies. The services are initiated by personal interviews with a social worker in the client's home, and a service plan is developed. The DHR regulations require redetermination of eligibility every six months, and services may be terminated for a variety of reasons, including a change in conditions, client withdrawal, or lack of continued eligibility. The In-Home Aides participate in this process though their actual decision authority is extremely limited.

Private vendors may be used in this process to expand the number of clients served and to make up for the fact that there are not enough agency staff to meet the need for home care. A private vendor may be assigned to a case depending on the nature of the case, the timing and the availability of staff. Private vendors are selected based on a Request for Proposals issued in accordance with the County's contract process. Bidders identify their qualifications, including certification or licensing and Medicaid qualification, and are ranked on a point basis against pre-established selection criteria. The entity with the most points is selected as a primary contractor, while others with high points may be selected as back-up vendors. When a determination is made to use a vendor, a referral is made by administrative staff within the Home Care Unit. Selection of a particular vendor depends on the location of the client and his particular needs.

Home Call, Inc. is a private provider of home care and health services. It is one of five vendors currently authorized as a provider in Montgomery County; it is not the primary contractor. According to the County's Director of Adult Services, the entity may serve approximately twenty MCDSS clients. Personnel at Home Call indicate that DSS clients represent approximately 30 per cent of the entity's clients. The company serves primarily a Central and Western Maryland population, with the bulk of its State DSS clients served by the Gaithersburg Office. The Employee would not be a regular employee of Home Call, but would be placed on a register and available for assignment to serve entity clients. She would work only on week-ends or evenings and only for private clients.

Since Home Call is a private vendor that contracts with MCDSS, the Employee's affiliation with it would be within the prohibition of §3-103(a)(1)(i) of the Public Ethics Law (Article 40A, §3-103(a)(1)(i), Annotated Code of Maryland, the Ethics Law) against employment with an entity that contracts with one's agency, unless an exception can be applied. An exception could be allowed based on criteria developed pursuant to statutory exception language set forth in §3-103(a). Basically, this language allows exception from the prohibition in accordance with Commission regulations, where the relationship would not result in a conflict of interest or appearance of conflict. The regulations are published at COMAR 19A.02.01 (outside employment exception) and 19A.02.02 (financial interest exception). Their approach is to set forth general guidance criteria for assuring that an outside employment or interest relationship is so remote from the individual's agency activities and official duties that the possibility of a conflict or appearance thereof is remote.

The criteria include, for example, consideration of possible impact by the employee on his outside employer or interest, and also the relationship of the employee to supervisors, other employees, or the unit of his agency that impact on his outside employer or interest. Given this Employee's position at MCDSS and her apparent absence of any management responsibilities with Home Call, there would appear to be few issues raised under the exception criteria. Assuming that she does not provide services to MCDSS or DHR clients, the only issues would arise under criteria that deal with the unit of DSS where she works, and her supervisory relationships, since she is in the Home Care Unit (which has significant responsibility for the agency's Home Call contract), and her supervisor has significant duties relating to the use of Home Call as a vendor of home care services.

In considering application of these criteria to this particular situation, we have received the views of agency personnel, including management officials in the local office and in the DHR headquarters office. Locally, the Director of Adult Services indicates that this type of outside employment does not raise problems for the agency, at least not at this level of employee. Home Care Aides do not participate in administrative decisions regarding vendor services. The Adult Services Director also believes that problems in this situation would be avoided if the Employee does not serve agency clients, noting that this would be likely since the agency does not often authorize services during evenings and week-ends. This situation has also been evaluated by the Deputy Secretary of the Department, who has advised that the Department does not believe that this Employee's affiliation with Home Call would present a conflict or appearance of conflict. This conclusion relies on the fact that the individual's duties are completely ministerial, that the process for assigning clients assures she would never serve the same client in both jobs, and that there are no situations where the Employee would interact with her private employer in her State job.

Based on all of these circumstances, and assuming also that she serves no Home Care clients that have at any time been her clients at MCDSS, and is not paid with agency funds, we conclude that the relationship between the Employee's State and private activities is sufficiently remote to warrant allowance of an exception, and so advise both the Employee and her agency. This view relies, of course, on the representations made by the agency, and both MCDSS and the Employee should be aware that an exception would be in effect only to the extent that the administrative processes described by agency officials continue to be in place.

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

Date: November 26, 1985