86.05

OPINION NO. 86-5

A request has been presented concerning whether the supervisory psychologist at Rosewood Center may be a consultant for the Division of Vocational Rehabilitation (DVR) doing psychological evaluations for retarded clients, some of whom may be being evaluated as a prerequisite for admission to a provider facility of the Mental Retardation and Developmental Disabilities Administration (MRDDA). The Rosewood Center (Rosewood or the Center) is an MRDDA residential facility for the mentally retarded and developmentally disabled that houses approximately 800 mentally retarded children and adults. Most residents are ambulatory and some may have emotional/behavioral problems. The agency, however, has an affirmative policy for deinstitutionalization of the retarded or disabled, and many Rosewood residents are in the process of moving toward discharge to a community setting or alternate living arrangement. This preparation could involve day training in psycho-social or vocational programs. Both alternative living residential and day programs are offered by private non-profit "provider" entities which are significantly funded and regulated by MRDDA.

The Requestor is a Ph.D. psychologist who supervises all of the 17 other psychologists at the Center. These other psychologists serve on interdisciplinary teams providing clinical psychological services to residents. They perform evaluations and testing, develop behavioral programs, and provide psychotherapy. They also participate, as team members, in determinations regarding a resident's readiness for or performance in day or community living programs, though apparently this "treatment" team is not the decision-maker as to placing an individual with any particular provider. Psychologists may, however, work in coordinating behavioral programming with provider entities providing day services to Rosewood residents, and the interdisciplinary team may make suggestions as to community placements. Final placement decisions are made by social workers in conjunction with the agency's bidding process for provider services. (For a more complete discussion of this contract process, see Opinions No. 85-20, No 85-10, and No. 84-3.)

As the supervising psychologist, the Requestor does not have an individual caseload or participate directly in an interdisciplinary team. He has indirect contact with all the residents, however, through his daily interaction with the clinical psychologists. He reads, evaluates and co-signs reports and behavior management programs. He may make suggestions about the reports, and review the technical aspects of a case, possibly making recommendations about behavior management programs. The supervising psychologist may also impact indirectly on the residents through his service on the Center's Behavior Management Committee and his attendance at the Human Rights Committee meetings.

The Requestor wants to work as a private consultant doing psychological evaluations for DVR, another State agency. He says he was approached by DVR, and this is confirmed by a vocational counselor in that agency's Catonsville office. The DVR, a unit of the Department of Education, provides vocational training services to individuals in the State who are physically or mentally handicapped, whose handicap interferes with their ability to be employed, and who are susceptible to vocational training. The program serves those who become disabled through accident or illness, as well as those who are handicapped by mental retardation or developmental disability. The agency provides direct counseling and rehabilitation planning and may also purchase medical (including corrective surgical), psychological or psychiatric care, as well as educational or vocational training in particular employment skills.

Vocational Rehabilitation staff indicate that the agency policy calls for an initial evaluation to determine whether the individual meets the criteria for services, and to develop a plan. The evaluation includes assessment of current intellectual functioning and adaptive behavior skills. The Division's overall objective is to serve those who have a potential for working; this has apparently led to more involvement recently with mentally retarded individuals who are believed to be employable and able to live in the community. The agency serves clients who are in the community, and may also provide vocational counseling and training to residents at MRDDA facilities who are preparing for discharge into a community setting.

The DVR's work with any client is usually short-term intervention aimed at providing the individual with a marketable employment skill. A client may be placed with a training organization, such as Goodwill Industries, or could be evaluated and be placed directly in a job with a private company. Individuals could also be placed with provider agencies (such as the Baltimore Association for Retarded Citizens (BARC)) that are primarily funded by MRDDA, with activity centers, psycho-social programs and residential group homes. Some of these provider entities, however, also operate sheltered workshops which are not funded by MRDDA, but by DVR. MRDDA does not license, inspect or otherwise get involved sheltered workshops. (Apparently there is also some activity center funding that is planned to be channeled through DVR.)

The consulting work contemplated by the Requestor came about by a DVR counselor's contacting him to do adaptive evaluations for DVR in the field of mental retardation. The counselor has indicated that she had not dealt with the Requestor in the course of her official contacts with Rosewood, but that he was recommended to her by social workers at the Center with whom she has worked. He was requested to do an evaluation of an individual living in the community for purposes of supporting a possible admission to a sheltered workshop (funded by DVR) at BARC. He did not do this particular evaluation, but apparently his future activities would be similar to this, involving mentally-retarded clients, not from Rosewood. His activities would consist of the general DVR-required evaluation and be for the purpose of planning job-related vocational training or counseling funded by DVR. This could involve entities such as BARC, funded in part by MRDDA, though it could also involve placement in private training employment activities. He would be reimbursed as a vendor rather than as a contractual employee.

This proposed activity raises issues under the outside employment provisions of §3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law). These include the strict prohibition in subsection (a)(1)(i), barring any employment with an entity that is regulated by or contracts with an individual's agency, and the inconsistent employment provision of subsection (a)(1)(ii), which forbids any other employment that would impair an employee's impartiality or independence of judgment. We have considered §3-103 (a)(1)(i) in connection with several requests involving MRDDA employees who have wanted to work with provider entities, generally prohibiting such activities. In a recent Opinion (No. 85-20), also, we concluded that an individual's provision of services to an MRDDA provider through an intervening consulting agency constituted employment with the provider entity that was prohibited under this same principle. The situation presented here, however, does not involve a person admitted to an MRDDA provider entity, or direct funding or compliance with MRDDA requirements. Under these circumstances, we conclude that this employment need not be viewed as employment with BARC, an MRDDA provider, and that the strict prohibition applied in Opinion No. 85-20 and the earlier Opinions does not apply.

In our view, the Requestor's proposed employment, as described to us, is not with the provider agency, but only in connection with DVR. It is therefore essentially employment with a State agency that would not be covered by §3-103 (a)(1)(i). FT#(1). The issue, then is application of the more general inconsistent employment provision of subsection (a)(1)(ii). This provision addresses the possibility of impairment of judgment in carrying out one's official activities as a result of outside employment, and thus has generally involved a review of the individual's particular duties. The provision has been found to apply where the employment is with another State agency, and to bar employment with an agency that presents conflicts or appearances of conflict that cannot be dealt with in the context of administrative or personnel practices. (See Opinions No. 83-20, No. 83-16, and No. 82-51.) In the situation presented here, the Requestor in his official duties appears not to have direct dealings with provider entities such as BARC. His activities are more remote, involving supervision of psychologists who participate on the interdisciplinary teams that deal directly with clients, and possibly with providers of day programs to clients. His private services, also, seem to relate only indirectly to the private providers, and would not in any case appear to be funded by his own agency.

Based on these facts, we conclude that these possible relationships are too remote to impair his judgment or impartiality as the supervising psychologist, and do not otherwise raise the potential for conflict or appearance of conflict that is intended to be addressed in §3-103(a)(1)(ii). We therefore advise the Requestor that his proposed private consulting work for DVR would not, as currently described, result in a violation of the employment prohibitions of the Ethics Law. The Requestor should, of course, take care to avoid any work for DVR that would involve clients in an MRDDA residential facility, or clients in the community that are or may be expected to be seeking admission to the MRDDA-funded part of a private provider. He must also avoid any involvement with Rosewood Center clients who are DVR clients. Should his Rosewood duties change, or if, as it develops, the character of his DVR work begins to focus on or be directed at MRDDA clients, then he may need to seek additional guidance from this Commission.

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

Date: March 19, 1986

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1 Under several prior Opinions, the Requestor would also be viewed as having an employment and interest relationship with a sole proprietorship consulting business (e.g., Opinions No. 85-22, 84-22, and No. 84-1). As this entity also would not be contracting with or come under the authority of his agency, there would be no §3-101(a)(1)(i) application. This employment relationship with his private consulting business must also be considered under the inconsistent employment provision. Application of this section to a private practice involves slightly broader criteria than those applying to employment with another State agency. However, the criteria are very similar to those discussed in the text, and in this situation, we believe, resolved by the conclusions reached therein.