An inquiry has been presented as to whether a rehabilitation counselor (the Employee) in a regional office of the Division of Vocational Rehabilitation (DVR) may engage in certain private rehabilitation consulting activities.
This request was presented by the Director of Field Operations, Division of Vocational Rehabilitation, and it concerns one of the agency's 124 rehabilitation counselors. The Division of Vocational Rehabilitation is part of the Department of Education. It is established pursuant to the Education Article, §21-301 et seq., Annotated Code of Maryland, and its mission is to provide diagnostic counseling, physical restoration, training, and placement services for Maryland residents with a vocational handicap that results from a disability. Individuals are eligible for services if they meet a two-prong test: 1) if they have a physical or mental disability that is a substantial handicap to employment, and 2) if rehabilitation would assist them in becoming employable. The services are provided by counselors located in each county.
The Employee is one of three counselors in his County. He has been employed by the State for 18 years. He indicates that though all of his rehabilitation experience has been acquired in his State employment, he also has additional education and training (including a graduate degree, additional course work, and certification as a rehabilitation counselor) that is in addition to what is required for his State job. He states that his office may receive clients from anywhere in the County. Applicants are preliminarily screened by an administrator and assigned to counselors. It is the counselor's duty to make an initial eligibility determination, based on the criteria discussed above. Once a person is determined to be substantively eligible, services are provided by the agency, though clients may participate in the cost of training or equipment, based on application of a financial means test and a sliding fee scale. This financial means determination is also made by the counselor, though the Employee indicates that this is based on relatively objective criteria and involves very little discretion.
Once an individual is selected for the program, three kinds of services may be provided. Therapy or prosthetic equipment may be provided to affect physical or mental restoration of past employment skills; training in new skills could be provided from private vendors or through State programs; and counseling services and guidance could be provided. Placement in a job situation is also a part of each case. The rehabilitation counselor assists the individual in getting a job, and follows up for a minimum of sixty days thereafter. According to the Employee, the counselors' activities are substantially independent. There are goals for numbers of rehabilitated cases. The counselors' work is audited on a random basis, though there is little day-to-day operational supervision.
The Employee proposes to engage in outside employment doing rehabilitation consulting work, as a free-lance consultant to insurance companies. Based on documentation submitted with his request for DOE approval, he seemed to suggest an intention to actually provide rehabilitation services to clients. As he currently describes his plan, however, he would work more as a consultant to the insurer. He anticipates receiving referrals from insurance carriers where an individual has been injured and is disabled in some way. His job would be to review the medical information and talk to the individual, and evaluate whether the person can return to his former job, change employment, or is so disabled that he cannot return to any work.
A report would be provided to the insurance carrier by the Employee, including general suggestions as to a rehabilitation approach and setting forth his expert opinion as to the actual or potential employability of the individual. This would then be a basis for the insurer to evaluate the extent of its liability. The Employee indicates he may also appear as an expert witness in litigation. He indicates that his work may involve some general counseling of the individual, including general advice as to available training or other options, along with cost estimates of possible training options. He does not envision going the next step and actually developing a specific rehabilitation plan, working with vendors of training or other rehabilitation services, or assisting in making employment placements.
The population likely to be served by the Employee in his private work is roughly the same as that served by DVR, though in addition to his County, it may include referrals from neighboring states. He does not believe that there is a significant potential for overlap as to particular cases. His perception is that the insurance carrier is usually in a hurry to move forward in determining the extent of disability, and getting the person to private rehabilitation, rather than being involved in the more time-consuming State process. He points out that he would not be involved in his private capacity as a final decision-maker, and also notes that of six possible private referrals that he turned down pending resolution of this request, none have appeared as agency cases. He does note, however, that his County is not a large one and the insurance carriers he would be working with are the same ones that would be likely to be involved in Workmen's Compensation Commission (WCC) cases that may be handled by his agency.
Rehabilitation counselors at DVR may receive referrals from the WCC, where they perform the same type of consulting review that the Employee apparently intends to do as a private consultant. According to a WCC rehabilitation counselor that agency receives approximately 50,000 claims per year. The vast majority of these deal with compensation for employment time lost due to a temporary nondisabling injury. A small percentage of the cases involve potential rehabilitation, and this individual indicates that many of these are handled totally by the employer and the private insurance carrier, with no input or involvement by the WCC or its rehabilitation office. Apparently fewer than 500 per year are referred to DVR for evaluation.
The counselors at WCC do not interact directly with a client. They review the medical information in the claim file and refer the case to DVR for evaluation. The DVR counselor does interview the client, reviews medical information as to the client, and does a rehabilitation plan. The WCC rehabilitation office reviews the report submitted by the DVR counselor and transmits it to the private insurer with a "ten-day letter" requiring review by the private employer or insurance carrier. If these private entities accept the plan then it is carried out and the employee receives the training, etc. at the expense of the insurer. If these parties disagree then a hearing is held before a Commissioner of the WCC, and the DVR counselor may appear to testify as to the basis for the plan. Thus, though the final decision is made by the WCC Commissioner, DVR counselors may be called upon to interact with representatives of insurance carriers in an adversary situation as advocates of the State's position in these matters.
The Employee plans to have a private consulting business that would be viewed under prior Ethics Commission Opinions as an entity with which he would have an employment and interest relationship.1 He would, according to his current description of his plans, be providing services to insurance companies, and must be considered, under prior Commission Opinions (e.g., No. 84-14, No. 83-20, No 83-17 and No. 80-18), to have an employment relationship with them. The initial question, then, is whether the Employee's proposed activity would be prohibited by the absolute bar 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). Subsection (a)(1)(i) of this provision deals with both employment and financial interests, barring these types of relationships with an entity that is under the authority of or has contractual dealings with one's agency. It would thus apply only if the Employee's private activities involve an entity that contracts with or is under the authority of the individual's agency. Since neither the insurance carriers nor the Employee's own consulting entity seem to have an authority or contractual relationship with DVR, we find no basis for applying this provision.
Subsection (a)(1)(ii) of §3-103(a) applies only to employment relationships, but deals more generally with any employment that would impair the individual's impartiality or independence of judgment, even where there are no contractual or regulatory ties to the agency. In applying this provision, we have generally looked to an employee's job duties to evaluate whether there is a relationship between these duties and the private activity that could impact on the performance of official responsibilities. Applying this approach to this situation, for example, an issue could be raised as to the private activities originally proposed by the Employee if the private work brings him into contact with private employers and vendors with which he would also deal in his DVR rehabilitation work.
The Employee indicates, however, that his private consultations are to be limited solely to general counseling and provision of an evaluation report and general plan to an insurance carrier. We recognize that this approach presents a different situation which avoids direct rehabilitation activities. However, we are concerned that even this more general consulting work would present problems under §3-103(a)(1)(ii) of the Law, especially as long as the Employee's duties include handling cases referred from the WCC. We understand the Employee's position that there is seldom an overlap as to particular cases and that he would be able to avoid working with the same client in both jobs. The Employee also indicates, however, that his County is a small one, and the private insurers who would be hiring him to provide consulting services are the same carriers that would be likely to be involved in WCC cases referred to DVR for review. The Employee also indicates that his proposed private activities came about because the carriers became aware of him through reading his reports and dealing with his work in connection with DVR evaluation of WCC cases.
Under these circumstances, as long as the Employee is assigned or could be assigned WCC cases, we must conclude that he would have duties on behalf of his agency that would involve or impact upon a private employer. In our view his proposed private activity would therefore be inconsistent employment prohibited by §3-103(a)(1)(ii). We do not in any way impugn the Employee's integrity or his capability as a rehabilitation counselor. The Ethics Law, however, especially in §3-103(a), reflects a legislative determination that certain private economic affiliations, with entities that have relationships with an employee's agency, present such a potential for a conflict of interest or appearance of conflict that they are forbidden under the Law. Taking into account the provision of §1-201 of the Ethics Law that it is intended to prevent appearances of impropriety as well as actual conflicts of interest, we conclude here that the Employee's private employment with insurers with whose cases he may deal in his official duties is the type of relationship intended to be addressed by §3-103(a)(1)(ii).
We therefore advise the Employee that his proposed provision of consultant services to insurance carriers as described would be barred by §3-103(a)(1)(ii) of the Ethics Law, at least to the extent that his DVR duties include WCC cases. If his duties were to be officially redefined to exclude the possibility of his dealing with WCC cases or otherwise interacting with the carriers, then the limited type of general consulting he describes would be permissible.2 This conclusion assumes that the Employee would not be a witness for the carriers in matters where the State is using the expertise of his agency. Moreover, if his duties could be adjusted to ensure that he does not have any of these contacts with the carriers, he would still have to be aware of the prestige and information provisions of §§3-104 and 3-107 of the Law. Any activity would have to be structured to ensure that he does not use his State status or position to market his services, or use agency information in his private work. He also would not be able to be involved with any private cases that have been or are likely to be presented to DVR.
We wish to caution, of course, that the Employee's ability to engage in his proposed activities consulting with carriers, even with these limitations, is dependent upon a restructuring of his job duties. Whether his agency is prepared as an administrative matter to redefine his job duties or otherwise reorganize work assignments within the Employee's unit is a matter totally up to the agency, based on its management and administrative determinations as to the agency workload and needs. We should note, however, that we have generally said that the Ethics Law's disqualification and outside employment provisions should not be read as requiring an agency to reorganize itself in order to accommodate an employee's private activities. Also, §1-103 of the Law specifically provides that agencies may apply more restrictive standards, and we have recognized that this may be an appropriate approach where an agency's particular mission is viewed as requiring more restrictive standards.3
Thomas D. Washburne, Chairman
Herbert J. Belgrad
Reverend John Wesley Holland
Betty B. Nelson
Barbara M. Steckel
Date: November 26, 1985
1See, for example, our Opinion No. 84-30 and other Opinions cited therein.
2 As noted above, the establishment of a more aggressive rehabilitation practice that would involve making job placements or purchasing training services for a client, and would put him into contact with private employers or vendors with whom he would also deal in his DVR duties, could present issues under the inconsistent employment, and prestige and information provisions of the Law (§§3-104 and 3-107). Given the Employee's description of his proposed activities we have not addressed in detail the application of the Law to direct rehabilitation activities. The Employee should be aware that our advice that his activity could be allowable if his duties were changed relies upon his assurance that he would not be doing direct rehabilitation work.
3 See, for example, Opinions No. 84-29, No. 83-31, No. 82-27, and No. 81-45. Since the facts presented in this request did not involve a direct private rehabilitation practice, either alone or in affiliation with a private entity, we have not specifically addressed application of the Law to these situations. The agency may, however, in developing a policy for dealing with these situations, wish to review Commission Opinions considering the propriety of private practices maintained by State employees in a variety of professions. These include, for example, 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.