An Opinion has been requested as to whether a conflict of interest would be created if the individual selected to fill the position of Chief Medical Examiner were also a member of the faculty of the University of Maryland Medical School (the Medical School or the University). The request is presented by the Secretary of the Department of Health and Mental Hygiene (the Department or DHMH), and has to do with the Department's efforts to recruit a new Chief Medical Examiner. The Department wants to be able to recruit for this position at what it considers to be a competitive salary range, by being able to offer to the candidate a compensated position as a medical school faculty member, in addition to the budgeted salary for the position of Chief Medical Examiner.
The Department of Post Mortem Examiners was established in 1939. (See Health-General Article, § 5-301 et seq., Annotated Code of Maryland.) It is headed by a Post Mortem Examiners Commission, and a Chief Medical Examiner appointed by the Commission. The program involves centralized supervision of a system of county medical examiners who are responsible for investigation of violent, suspicious or unattended deaths in the State. In addition to responsibility as the supervisor of county activities, the Chief Medical Examiner is the primary forensic pathologist in the State. The office is responsible for initial determination of jurisdiction as to whether a death is a "medical examiner's case," conduct of investigations at the scene of a death, and performance of autopsies and toxicological study of physical data and information from other sources. The Medical Examiner testifies as to the results of these investigations, and must also interact with families, physicians and other parties "such as insurance companies, police, state's attorneys and other members of the justice and health care systems."
The position description for the Chief Medical Examiner includes an indication that the individual would play an active role in the teaching of residents in forensic pathology. Apparently in expansion of these and other graduate teaching duties, the Department proposes that the candidate for the position be offered a faculty position at the University of Maryland Medical School. The position would involve course work for undergraduate medical students, including lectures and laboratory sessions in the core pathology course, and development and supervision of an elective course in forensic pathology. The incumbent would be involved in research programs, provide rotations in forensic pathology for pathology residents, and provide training experience for students in the Pathologists Assistant program.
The proposed faculty appointment is with the University of Maryland School of Medicine, an agency in State government. The Medical School, however, has some relationships with the University of Maryland Medical System (the Medical System). Formerly a part of the University, the Medical System was established pursuant to statute (Education Article, § 13-1B-01 et seq., Annotated Code of Maryland) in July 1984. The Medical System Corporation is a "private nonprofit, nonstock corporation formed under the general corporation laws of this State." It is composed of the former health care delivery components of the University, including University Hospital, the University Cancer Center and the clinical component of the Maryland Institute for Emergency Medical Services Systems (the Shock Trauma Center).
Section 13-1B-03(a)(2) specifically provides that the Medical System Corporation "shall not be a State agency, political subdivision, public body, public corporation, or municipal corporation and not subject to any provisions of law affecting only governmental or public entities." The Medical System is thus a private entity subject to substantial regulation by DHMH in general, and also subject particularly to the authority of the Office of the Post Mortem Examiner. The law establishing the Medical System also defines the relationship between the Medical System and the Medical School, providing that a purpose of the Medical System is "to provide a clinical context for education and research conducted by the faculty of the University." The Medical System Corporation is to utilize the services of its own direct corporation employees as well as those of "medical system University personnel," and the law specifically provides that "all medical system University personnel are University employees in all respects."
This request involves a proposal in which a regular State employee of the Department of Health and Mental Hygiene would have secondary employment as a faculty member at the University Medical School, a State agency. The individual would apparently be viewed as a medical school employee, but the duties of this second position could involve activities with or on behalf of the Medical System, a private entity subject to the authority of the individual's Department and his particular program. An initial consideration is thus whether the situation results in an employment relationship with the Medical System (the private entity) for purposes of the Public Ethics Law (Article 40A, Annotated Code of Maryland, the Ethics Law). If the individual were to have an employment relationship with the Medical System, then, because it is a private entity, the situation would be covered by the strict prohibition of § 3-103(a)(1)(i) of the Ethics Law. This provision bars secondary employment by an official or employee with any entity that contracts with or is regulated by his agency.
In evaluating all of the circumstances presented here, we conclude that the individual would not have an employment relationship with the Medical System. We are informed that the individual's duties would relate solely to the Medical School, so as not in any way to make him an employee of the Medical System. He would not, for example, have physician privileges at the hospital and would therefore not be involved in the hospital's clinical activities for any purposes. Nor would he be a member of the facility's tissue review committee. University and Department personnel also indicate that the faculty employment contract would specifically define the tenure of the position as coincidental with service as the Chief Medical Examiner. Thus, apparently Medical School department heads and other staff (who also hold comparable clinic positions in the Medical System) would not have unilateral or direct hiring or personnel authority over the individual.
Based on this information and the statutory language, it is our view that the individual would not have an employment relationship with the Medical System. Rather, he would be an employee of the University of Maryland, an entity that is an agency in State government. In a prior Opinion (No. 82-32), also involving service by a DHMH official with the University, we advised that a State agency is not an "entity" for purposes of § 3-103(a)(1)(i), and that secondary employment with another State agency would therefore not be covered by the strict prohibition of this section. Since the faculty employment proposed here is solely with the University, it would thus not be prohibited by this provision.
In a later Opinion (No. 82-51), however, we found that secondary employment with another State agency could be barred by the § 3-103(a)(1)(ii) inconsistent employment provision "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." This subsection, which does not use the term "entity," prohibits any employment that would impair an individual's impartiality or independence of judgment. In evaluating this provision in view of the particular circumstances of this request, we have looked to the individual's official duties and how they would impact on or be impacted by a private activity, and have also considered that the individual's affiliation would be with the Medical School rather than the Medical System. We also find it significant that the employment contract is apparently being drafted so that University/Medical System officials that could play important roles in the Medical System and University staff interface with the Post Mortem program would not have control over the faculty appointment and compensation. Moreover, Departmental personnel have stated that the academic duties to be performed under the faculty contract are the same duties that have traditionally in the past been a part of the Chief Medical Examiner's job.
Given this characterization of the faculty and DHMH positions, the way the jobs are to be structured, and the administrative safeguards being built into the contract, we do not believe that the situation would present a conflict prohibited by § 3-103(a) of the Ethics Law. In our view, although there may be occasions where role conflicts arise, the affiliation with the Medical School described by DHMH and University officials does not present a "clear personal and organizational conflict intended to be addressed by the Ethics Law that cannot be controlled by the personnel and administrative process." We therefore advise that this activity would not, as described, present a prohibited conflict of interest under § 3-103(a) of the Ethics Law.
We wish to make it clear that this view reflects our interpretation of the applicable provisions of the Public Ethics Law, to an employment relationship with another State agency. We do not purport to comment in any way on the appropriateness of this approach from a statutory, personnel or budgetary standpoint. Evaluation of these aspects of the situation can only be addressed by other appropriate control agencies.
Thomas D. Washburne, Chairman
Herbert J. Belgrad
Reverend John Wesley Holland
Betty B. Nelson
Barbara M. Steckel
Date: November 26, 1985