86.02

OPINION NO. 86-2

A request has been presented as to whether Ethics Law issues are presented by a Division of Vocational Rehabilitation policy permitting only employees of the Division or the Maryland Rehabilitation Center to use reduced cost services of the Rehabilitation Center.

The Maryland Rehabilitation Center (the Center) is a unit within the Division of Vocational Rehabilitation (DVR or the Division), part of the State Department of Education. The Division is established within the Education Article, §21-301 et seq., Annotated Code of Maryland, and is generally responsible for the provision of direct rehabilitation services to handicapped individuals, for development of a State-wide plan to provide rehabilitation services to the State's handicapped citizens, and for establishing, staffing and supervising workshops and rehabilitation facilities. It offers services in local and regional offices and provides vocational rehabilitation to persons with handicaps that result in vocational disability. The Maryland Rehabilitation Center is a residential training program open to eligible handicapped persons who receive a comprehensive evaluation and counseling program along with practical job skill training.

The practical training program at the Center includes training workshops in such fields as auto mechanics, cosmetology, printing and upholstering. The agency's approach to the training workshops is that their purpose is to provide a practical and realistic method for clients to develop entry-level employment skills. Agency program managers indicate that one aspect of the program is to provide real projects to work on rather than simulated tasks. To this end, the agency's policy is to accept requests for work orders in the various areas of instruction. This policy is limited solely to clients and staff of the Center and to employees of the Division of Vocational Rehabilitation generally. Clients in training also provide services to maintain and repair agency equipment and materials, and provide other services to the agency itself, for example, in the upholstery, vehicle maintenance and printing areas.

The agency policy statement to employees regarding the availability of these services is directed toward a primary goal of assuring adequate and appropriate work tasks for training purposes. The Director indicates that the agency does not want to set itself out as a competitor to private enterprises or become a production shop. It limits availability of the services to its own staff for this reason, and also because it is believed that the Center employees are more likely to understand the special circumstances under which the services are provided. He indicates, for example, that the understanding is made clear that the services are being provided by trainees and will not be guaranteed. Also, performance of the services is understood to be solely within the time frame of the teaching process, and a request for work may also be denied if the instructor in that particular area does not believe that the activity will fit into the course of instruction.

The services are provided based on a surcharge fee schedule, which generally presents cost savings over comparable commercially available services. Depending on the nature of the service, the requestor of the service may provide the materials. The Director indicates that there is enough work for the training program provided by the policy of limiting availability to the Center and DVR staff (there are 191 staff at the Center and over 700 at DVR), but he indicates that DVR employees seldom take advantage of the service. He says that while some people are not satisfied with the work provided, there have not been formal complaints, as people tend to understand the risks involved in using this type of service. Also, according to the Director, the program has been reviewed by the legislative auditors, and early in its inception recommendations were made that instructors should not be involved in the payment process. The program was adjusted to provide that payments would be made only to the accounting office. The State auditors have not taken a position on the issue presented by this request.

The primary issue raised here under the Public Ethics Law (Article 40A, Annotated Code of Maryland, the Ethics Law) is whether the agency's policy of limiting availability of these services to agency employees raises ethics problems because employees who take advantage of it would be improperly using the prestige of their position for their own economic benefit in violation of §3-104 of the Law. To the extent that the cost of a particular service may be lower than the cost of the service in the marketplace, we recognize that the policy could be viewed as conferring an economic benefit on the employee. Given the current agency approach, that benefit flows directly from their status as employees, since it is not available to others. On the other hand, as the program is described to us, the benefit of reduced cost apparently carries with it some risk, in terms of non-guaranteed performance, and some inconvenience, in terms of the timing of the work. Also, the agency has set forth certain policy bases for its interest in keeping the work in-house, and avoiding competing in the marketplace, and apparently is consistent in making the services available to all employees on an equal basis.

Given the basis for the program policy and the circumstances of how the program is designed to operate, we conclude that the advantage of these lower service charges (unless unreasonably low) is not prohibited by §3-104 of the Ethics Law. We therefore advise that the program is not, in itself, a violation of the Ethics Law. Agency managers and employees must take care, however, to ensure that opportunities provided under the program are not subject to abuse, as some improper actions by individuals taking advantage of services available at the Center could be viewed as violations of §3-104 or other provisions of the Ethics Law. We note, for example, that the agency prohibits use of the service by a staff member for another person who is not employed at the Center or DVR, and makes the service equally available to everyone within these constraints. We advise the agency to continue these policies and, in fact, to add additional checks and procedures to limit the possibility of abuse.1

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

Date: January 22, 1986

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1 Agency officials may also find some guidance from review of our earlier Opinions No. 81-24 and No. 83-27. These Opinions include advice on the issue of employee participation in agency programs that could be relevant here, even though, as a factual matter, they dealt with programs available to the public at large. For example, the nonparticipation provisions of the Law (§3-101) could apply to some program or agency managers, prohibiting their official participation in matters relating to work done at their request. Also, Opinion No. 83-27 distinguishes between situations where the participation is personal and where it is on behalf of a private business endeavor.