86.09

OPINION NO. 86-9

A request has been presented concerning whether foster care caseworkers in local Departments of Social Services (DSS), or other personnel in the Department of Human Resources (DHR), may be employed by the Kennedy Institute as trainers under a foster care parent training contract between DHR and the Institute.

The request originated in the Office of Training in the Social Services Administration (SSA), a unit in DHR. It involves the purchase, by contract with a private entity, of training services for parents participating in the State's foster care program. This program is established pursuant to the Family Law Article, §524 et seq., Annotated Code of Maryland; its function is to protect minor children whose care has been relinquished to others by their parents. The program is implemented by local Departments pursuant to Department of Human Resources regulations at COMAR 07.02.11. The regulations define various types of foster care, set forth parental rights and responsibilities and procedures for placing a child in foster care, define procedures and criteria for reimbursement, and provide for placement of the child. The foster parent application and home study involve information regarding family situation, marital status and income, a police clearance and health department inspection, and a recent medical report on adults living in the home. Three personal references are also required, along with pre-service training.

Once a homestudy is complete and a home is approved, a child may be placed there based on the placement criteria as to the type of child (such as age, sex, and level of care required). Usually the placement is made on a quick turn-around basis; where a need for placement arises the parent is called and the child is physically placed in the home immediately. The foster care intake worker then begins the paper work process to begin payment to the foster parent, and to provide for medical assistance payments (which are the source of medical care reimbursement for all foster children). The parent signs an agreement as part of the homestudy process. Monitoring once a child is placed depends upon the child and the needs of the case, though the caseworkers tend to be involved on a more or less regular basis with the foster family.

Given the particular needs presented by the changing complexion of the State's foster care system, a training program was developed during 1985. The program was designed to offer current and new foster parents initial and continuing training including information and skills to assist in caring for children. New applicants to be foster parents would receive "foundation" training as part of the homestudy process, and thereafter be required to have 6 in-service hours annually. Current foster parents were to participate in an 18-hour foundation course on a staggered basis over an 18-month period. The foundation course covers three main topics: the team approach to foster care, foster child behavior problems, and special needs of foster children.

The pre-approval training for new applicants is conducted by foster care caseworkers in the local departments, while the foundation training for currently approved homes is provided by a private entity pursuant to a contract with the Department. To begin this part of the program, the agency awarded an initial grant to the Kennedy Institute for training from April through September 1985. To further implement the program, the Department issued a Request for Proposals (RFP) for a follow-on contract on July 19, 1985, and held a pre-bid conference. Representatives of four entities attended the pre-bid conferences, including the Kennedy Institute. The RFP sets forth evaluation criteria, assigning 25 of 100 possible points to consideration of vendor training personnel. In addition to general education, experience, and skill, the RFP also indicates that vendor trainer qualifications would be judged on the individuals' "knowledge and experience with NOVA training for professional and foster parent co-trainers."

The Kennedy Institute submitted the only bid on August 20, 1985 and was awarded a $45,000 contract in October 1985, with the indication of the agency's intention to make a later follow-on $45,000 sole source award. Kennedy Institute is a specialized health facility for handicapped children. The Institute's proposal relied heavily on the capabilities of its existing Foster Care Center developed partly with federal or DHR funds, pointing to its foster care provider training program which had been in place for over five years. As to the anticipated trainers, the proposal indicated that the "initial training grant's goals are being achieved through training teams derived from foster parents, local DSS foster care staff and the Kennedy Institute training coordinators." The advisory opinion request suggested a method of dealing with the conflict of interest raised by the employment of a DHR employee on the original grant, where the individual certified that she would not train any foster parents approved by her local Department or otherwise involved with her duties.

The Kennedy Institute proposal included the resumes of two DHR employees, a local recruitment coordinator and a staff person of the Foster Care Review Board. Subsequent information provided by the Institute included resumes of four other individuals intended to be employed in providing training, and additional local DSS workers were also expected to be hired. As this is a general program issue that is expected to be a continuing practice, the opinion review was not specifically directed to particular individuals. From the several resumes available, it is possible to identify several characteristics that are relevant to issues presented under the Ethics Law. With the exception of the Foster Care Review Board staff person, the individuals are foster care caseworkers involved in recruitment and monitoring of foster parents. Generally they have received some NOVA training at State expense, and provide training (apparently pre-approval homestudy training) to foster care providers. As the situation was structured originally, they were apparently not doing training in their own geographical area, and therefore not providing training to foster parents with whom they work as part of their State duties.

As to all of these individuals, the situation presented here involves individuals who work for a sub-unit of SSA/DHR and who are and propose to continue to be employed by a private contractor to their agency. This employment would be covered by §3-103(a)(1)(i) of the Ethics Law, which bars employees from being employed by entities that contract with or are regulated by their agency. (Article 40A, §3-103(a)(1)(i), Annotated Code of Maryland, the Ethics Law.) It would therefore be prohibited unless an exception could be applied based on criteria developed pursuant to statutory language set forth in §3-103(a) of the Law. 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. Their approach is to set forth general guideline criteria for assuring that an outside employment 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, and also the relationship of the employee to supervisors, other employees, or the unit of his agency that impacts on his outside employer. The regulatory criteria also deal with the nature of the employee's private duties, considering whether they involve implementation of a contract between the employer and the agency and whether the individual's private compensation comes directly from the State contract. Our application of these criteria to this request is based on the assumption that the individual's activities would be similar to those of the individuals currently involved. As the individual's DHR duties do not directly involve the training program or this contract, there would appear to be few issues regarding their official duties, especially if they are not providing training within their own county.

Issues are raised under other items, however, since they would be working for a private contractor implementing the contract with their agency, and their private compensation would be directly funded by the contract. Although only some of the concerns under the criteria can be overcome by agency views, we have coordinated consideration of this request with the DHR. We are informed by the Department that, as a result of its review of the programmatic and procurement aspects of this situation, it has concluded that foster care caseworkers should not be engaged in this activity in the future. We concur in this view and advise the agency that this approach should also apply to staff of the Foster Care Review Board.

We have considered this situation in view of our earlier Opinion No. 85-17, which involved employment by a training officer in another DHR unit at a community college providing training pursuant to agency contract. Though the particular individual involved in that request was not allowed to do the activity, we indicated there that operational employees in local offices not involved in development of the training program could be employed by the College. Though the situation addressed there was in some ways similar to the one presented here, a significant difference is that it did not involve the strict prohibition of §3-103(a)(1)(i) or the exception regulations (because the vendor was another State agency). Also, the individuals here could or do have some involvement with agency training activities, and acquired requisite basic training themselves in this field at agency expense. Moreover, all of them (including Foster Care Board staff) would have some duties that directly or indirectly involve evaluating the performance and qualifications of persons being trained by their private employer.

Considering all of these circumstances, we advise that §3-103(a) of the Ethics Law applies to bar the employment with the private trainer of either foster care caseworkers or other DHR staff directly involved in the agency's program of foster care for children. In our view, one purpose of this provision of the Law was to ensure that private entities engaged in contractual dealings with an agency not be able to compromise the arm's length position of the agency in selecting vendors or monitoring contracts by hiring agency employees to carry out the contract. The exception criteria are designed to allow relationships with vendors dealing with an employee's agency only where there are no official duties relating to the employer or the private involvement with the agency is so clearly remote from the agency duties that a possible or potential conflict (or appearance thereof) is improbable and unlikely. This test of remoteness is not met in this case, and we therefore advise that the employment is prohibited by §3-103(a)(1)(i), and further that this prohibition cannot be overcome by the regulatory exception criteria.

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

Date: May 14, 1986