86.20

OPINION NO. 86-20

The Advisory Committee on the Hearing Impaired (the Advisory Committee) has requested an opinion regarding application of the Public Ethics Law (Article 40A, Annotated Code of Maryland, the Ethics Law) to an individual recently appointed to the Advisory Committee (the Appointee). Particularly, the question presented is whether the §3-101 disqualification provisions would apply so extensively to the Appointee's actions as to bar her from remaining on the Committee as long as her spouse is Medical Director of the hearing impaired program.

The request is presented by the Vice Chairperson of the Advisory Committee and concerns the service on the Committee of a recently appointed parent-practitioner member. The hearing impaired program is established pursuant to the Health-General Article, §10-908 et seq., Annotated Code of Maryland. The Secretary of the Department of Health and Mental Hygiene (DHMH) is directed to "establish and equip a program to provide comprehensive outpatient mental hygiene care and treatment for hearing impaired individuals with a mental disorder and the families of those individuals." (§10-909(a).) The program is to be located in the Baltimore-Washington corridor. The Secretary of DHMH is required by the law (§10-901) to appoint an advisory committee which is to provide guidance to the program and "serve as the program's link with the hearing impaired community." The Act defines the composition of the Committee to include representatives of specified disciplines within the hearing impaired community, and to be drawn from recommendations from listed organizations. The Advisory Committee is to meet at times and places it determines and is required to be consulted about the administration of the program.

The law requires the Secretary of DHMH to set policies for program operation and rules and regulations for admission to the program. The Secretary is also directed to "make contractual arrangements for operation of the program." Shortly after enactment of the law, during the months of September and October in 1980, DHMH officials initiated a process to request bids from organizations to operate the hearing impaired program. The agency corresponded with and sent copies of a Request for Proposals to organizations potentially interested in submitting proposals. After a bidding process in which four bids were submitted and reviewed by the agency and the Advisory Committee, award was made to Family Service of Prince George's County (Family Service). The original award was apparently about $200,000. The grants have been renewed in subsequent years on a sole source basis, though apparently when the current grant expires the program will be competitively rebid.

The current annual effort, according to the program's Director at Family Service, is approximately $350,000. Family Service is a large community-directed private agency. Pursuant to the contract with DHMH, it operates the program to provide mental health services to the deaf in Maryland. It functions much as a State agency in its rules and procedures, and, for all practical purposes, it is the State's mental health program for the hearing impaired. It serves all jurisdictions in the State, and as of July 1, 1986 has an office in Baltimore City in addition to the Prince George's County location. It coordinates the program through the Director of DHMH's Southern Maryland Regional Office, and works very closely with the Advisory Committee.

The Family Service Program Director for the hearing impaired program indicates that they present a variety of matters to the Committee for its views prior to submission to the Department. The proposed budget and budget priorities may be reviewed, for example, as would any proposed changes or adjustments to the program (such as the recent decision regarding the Baltimore office). After the Committee provides its views and concurs (or nonconcurs) in the issue, it will be coordinated through the Southern Regional Office, and where necessary, to the Mental Hygiene Administration or the Office of the Secretary in Baltimore. The identity of the program to Family Service, and the close working relationship between it and the Committee might be evidenced by the facts that the incoming opinion request letter on behalf of the committee is on Family Service stationery, and the Committee refers to itself as the "Advisory Committee for the Family Service, Mental Health Center for Deaf and Hearing Impaired Persons."

In addition to the full-time administrator of the program, Family Service employs several professional and paraprofessional personnel. The individual designated as Medical Director for the program is a practicing psychiatrist who does other consulting work in the area of deafness. He has a profoundly deaf son and indicates he has a national reputation as a psychiatrist regarding the deaf. The Medical Director has been with Family Service as a consultant to the hearing impaired program since its inception. He works eight hours per week and has a staff including another psychiatrist and a psychiatric nurse. He is responsible for the medical services provided to program clients, doing consulting and case conferencing, providing medication, carrying out liaison activities with the physicians in the community, and doing some advocacy. He is paid by the grant according to an established hourly rate.

The issue presented here has to do with the fact that the Medical Director's spouse has recently been appointed to serve on the Advisory Committee. The Appointee is a Master's level counseling psychologist, with a deaf child, who when she was originally considered for appointment was serving as Executive Director of the American Society for Deaf Children. She has since established a private counseling practice which is general in scope, though it does include some deaf situations. The Appointee is proficient in American Sign Language, and through her son is involved in a parent group, and has been involved in advocacy for the deaf around the country. She would like to serve on the Committee because she thinks it is important and thinks that she understands what is happening in this field. Apparently the issue of her spouse's employment was thought not to be a problem since the Committee's role was purely advisory, though the Committee is itself uneasy about her relationship to a Family Service professional staff member.

Section 3-103(a)(1) of the Ethics Law prohibits officials from being employed by or having a financial interest in an entity that contracts with or is under the authority of their agency, and also prohibits any other employment that would impair their impartiality or independence of judgment. This request does not involve direct employment or interest relationships of the State official, the Appointee herself. Rather, it deals with her spouse's employment with an entity that contracts with her agency. We have addressed circumstances similar to this on several occasions, concluding that spousal employment relationships are not as a general matter to be attributed to the official for purposes of §3-103(a) of the Law. Under this construction, we do not believe that either the strict prohibition against having employment or interests with entities that contract with one's agency or the more general impairment provision would apply here. (See, for example, Opinions No. 85-24, No. 81-37, No. 81-5 and No. 80-17.)

In considering relationships of a spouse's activities to an official's agency, however, we have consistently held that the disqualification and prestige provisions of §§ 3-101 and 3-104 of the Law do apply to limit the conduct of the official. Section 3-101 by its terms prohibits non-ministerial participation in any matter which involves as a party an entity with which a person's spouse is employed (§3-101(a)(2)), and §3-104 more generally bars the use of prestige of office for one's own or another's economic gain. Applying these principles, we have, for example, advised the Investment Officer of the State's Retirement Systems not to participate in brokerage decisions where his spouse's brokerage firm had been identified as a potential broker. (Opinion No. 80-17.) The Director of the Maryland Arts Council was advised not to be involved in any way in the selection of his spouse to serve as a scholarship juror. (Opinion No. 81-37.) And in a more recent Opinion, a State College President was advised to take great care to avoid any discussion, however informal, regarding his spouse's dealings with the College in establishing a child care center on campus. (Opinion No. 85-24.)

An initial consideration in evaluating application of these provisions to the situation here arises from the fact that the Committee's duties are purely advisory, and the question of whether this would impact on the application of §3-101. We have in the past adopted the definition of participation followed under ethics provisions predating the current Law, holding that it includes

participating "as a State officer or employee in any proceeding, decision, determination, finding, ruling, order, grant, payment, award, license, contract, transaction, sanction or approval, or the denial thereof, or failure to act with respect thereto, personally and substantially through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise." (See Opinion No. 80-17.)

This definition specifically includes the rendering of advice, and we believe it brings the Committee's activities within §3-101. This is especially so given the significant statutory place for the Committee defined within the context of the program, particularly the requirement that it be consulted as to administration of the program, and its charge to be a link between the program and the deaf community.

Application of the §3-101 concept of participation to this situation leads to the primary issue presented here, which arises from the fact that the Family Service contract is identical to the totality of the State's mental health and hearing impaired program. We have generally followed the definition of matter under the prior law as "any proceeding, application, submission, request for ruling or other determination, contract, claim, case or other such particular matter." (See Opinion No. 80-17.) Our concern here is that the virtual identity of the program and the grant means that any participation in advice or review of program issues would be participation in the "matter" that is the grant. We do not believe it is appropriate for there to be a distinction between programmatic actions and recommendations that deal more specifically with the procurement or funding aspects of the grant, or that we should look only to recommendations that would directly involve the Appointee's spouse's status in the program. In our view the matter here is the grant and involvement in any advice regarding grant activities is participation in that matter.

We realize that it could be argued that drawing these distinctions would allow some limited Committee activity by the Appointee. Section 1-102(b) of the Ethics Law, however, expresses legislative concern over appearances of as well as actual conflicts. In our view the process of narrowing the concept of the "matter" here to something less than the grant and any and all program issues arising under it would require the drawing of too fine a line on too many occasions. We do not in any way question the value of the skills that the Appointee could bring to the Committee, or the integrity or sensitivity with which she would apply them. However, the question of whether the Appointee should or should not participate as to any given issue could potentially arise in so much of the Committee's work as to impair not only her ability to contribute and the Committee's ability to conduct its business, but also the very credibility of the Committee's activities. Her service could thus create the very type of appearance problem intended to be avoided by the Ethics Law. This could be especially true if the Committee is to participate in the planned competitive bidding process as to future grants.

Thus, while we do not generally view §3-101 as an absolute bar to private affiliations by officials and their spouses, we must advise the Appointee and the Committee that the particular circumstances of this situation require a different conclusion. It is our opinion that the application of the §3-101 disqualification provision extends to any issue arising under the grant agreement between the Appointee's agency and Family Service, her spouse's employer. Her participation in the Committee's consideration of these issues is therefore barred by §3-101(a)(2), and in our view this bar applies so pervasively to the Committee's activities as to render it impossible for her to function effectively without violating this provision of the Ethics Law.

Herbert J. Belgrad, Chairman
   Reverend John Wesley Holland
   Betty B. Nelson

Date: August 20, 1986