An advisory opinion has been requested as to whether the Program Manager for Child Protective Services (the Employee) in the Child Welfare Division of the Social Services Administration (SSA) may have part-time employment as a counselor with the Baltimore Center for Victims of Sexual Assault (BCVSA), a grantor of the Community Services Administration (CSA).

The Social Services Administration and the Community Services Administration are both units within the Department of Human Resources. The SSA is established in Article 88A, Annotated Code of Maryland, and its function is to coordinate and deliver social services in the areas of adoption, foster care, child protective and day care services, adult protective services, homemaker and community home aide services, general services to families with children and single parent services. The Office of Child Welfare has general program responsibilities regarding the care, custody or control of dependent, abandoned, or neglected children, and the Child Protective Services program (a unit in the Office of Child Welfare) is directed more particularly at carrying out the State's responsibility to children abused or neglected by families or other caretakers.

The Employee is an administrator and Program Manager in the Headquarters Office of SSA's Child Protective Services. Her unit is responsible to set policy and define program goals and activities that are implemented by local Departments of Social Services. In addition to managing the unit, she also directs the Administration's training, budget development and legislative activities in her area. The Employee indicates that she is responsible to review the records and monitor the child protection activities of the local departments. She provides them with technical assistance regarding program policies, and hers would be the office in SSA to which client calls, complaints or questions might be directed as to issues regarding child protection activities. Apparently the Employee knows and works most directly with managers in local departments, rather than line workers, and she does not interact as a general matter with contractual providers at the local level. She herself does not do any clinical work in her State job.

The Women's Services Program is part of the Community Services Administration. The unit offers a variety of community services to women, including programs regarding rape crisis and sexual assault, battered spouses, homeless women, and displaced homemakers. It also offers services to victims of crime, as well as some transitional housing services. The rape crisis program is established pursuant to Article 88A, §130, Annotated Code of Maryland. It is a Statewide program designed to provide counseling and other supportive services to meet the special needs of alleged victims of rape and sexual offenses, including incest. The Law provides that the Department may enter into contracts with public or private non-profit organizations to operate the programs. The Baltimore Center for Victims of Sexual Assault is one of these contract providers. It has a 2-year contract from July 1, 1986 to July 1,1988 to provide rape crisis and sexual assault services to victims in Baltimore City. Its program reflects a total FY 1987 budget of approximately $150,000, $94,000 of which is State/CSA funding. Other sources include the United Way, private fundraising and various other charitable organizations.

According to personnel in the Women's Services Program, there is generally no duplication of services as between the local Child Protective Services programs and the local rape crisis centers, given the different State functions of the two programs. Since the centers are authorized (by 1986 amendment to the law) to serve children, however, it is possible that a situation could arise involving a family unit where an adult spouse could be the victim of assault by a spouse, and a child subject to the same activity would be the victim of abuse. In order to assure coordination in these types of situations between local departments and sexual assault programs, a memorandum was jointly issued by the Administrators of Community Services and Social Services. The memorandum defines the need for and contents of interagency agreements to be developed at the local level to define the process under which services will be provided to children. (Apparently the sexual assault centers have other agreements like this with local entities with which they need to interact.)

The details of these agreements may vary considerably by jurisdiction, depending on the nature and extent of services provided by the sexual assault centers, as well as other services available in the community. For example, the BCVSA is primarily a rape crisis center, and does not have a domestic violence program that would see, counsel or provide shelter or other services to family units including children. Apparently these types of cases would be referred directly to the House of Ruth, another non-profit entity in the City that is also funded by DHR. Thus, though it is less likely that BCVSA would see children than in jurisdictions where rape crisis and domestic violence services are combined, it apparently cannot be said that it would never serve children. It therefore would be required to have an agreement with the local DSS.

The Employee indicates that she was the SSA staff person that worked with the Director of Women's Services Programs in developing the memorandum regarding interagency agreements. She indicates that they addressed the general issues on how to coordinate services under these programs. She says that they did not deal with substantive operational aspects of the programs, nor did she have any discussions as to particular contractors for sexual assault centers. The Employee is listed in the memorandum as the contact person in SSA if there are questions regarding the required agreements.

This request involves the Employee's interest in undertaking outside employment as a counselor with BCVSA. She is a licensed certified social worker with a master's degree in clinical social work and a post master's certificate in social work administration. She does no clinical work for DHR and says she is considering outside employment in order to do some clinical work. The part-time opportunity at BCVSA was advertised in the newspaper and she responded. The Employee indicates that she had had no dealings either with the organization or regarding connection with her DHR duties. She would work at BCVSA six hours per week seeing clients, adult women rape victims, and could possibly handle a group therapy session. It is the view of the Department of Human Resources that this employment could be allowed without conflict or appearance of conflict due to the limited nature of the employment and the fact that the position would apparently not be supported with State funds.

Section 3-103(a)(1)(i) of the Ethics Law prohibits an official or employee from being employed by an entity that contracts with his agency. We have generally looked upon cabinet departments as individual entities, and concluded that contractual relationships with any unit of a large agency would bring an outside employer within this proscription, as to employees of that Department. (See, for example, Opinions No. 85-5, No. 84-25 and No. 83-17.) Since BCVSA is an entity contracting with the Employee's Department, her affiliation with it would be prohibited by §3-103(a)(1)(i), unless an exception is allowable under our outside employment exception regulations.

The exception provision was added to the Ethics Law in 1981 partly based on the recommendation of the Commission that flexibility be added to the absolute prohibitions in §3-103(a). Its purpose is to avoid situations where a violation would result from purely technical application of the elements of §3-103(a), even where there is no conflict or appearance of conflict between the private interest or employment and the official's agency or duties. In developing exception criteria implementing the employment portion of this provision (COMAR 19A.02.01), we sought to define circumstances where the relationship between an employee's official duties or his agency and the private employment is so remote that the possibility of a conflict of interest or the appearance of conflict is unlikely. The criteria include findings relating to an employee's official relationships with his private employer, as well as consideration of how his private activities relate to his agency program or his own duties. They also include an evaluation of the specific employment circumstances to ensure that they do not otherwise create a conflict of interest or the appearance of a conflict.

We have evaluated the Employee's situation in view of these criteria, considering both the position of the Employee in the Department and the overall employment circumstances, and believe that an exception can be allowed in this situation. The employee is not specifically involved as a program matter in CSA's rape crisis contract with BCVSA, and the agency has indicated its belief that the programs are sufficiently remote that her work with BCVSA would not present a conflict or appearance of conflict for the agency. We also note that the entity received other funds from which the Employee could be compensated (rather than from CSA funds). Moreover, she would, as the agency points out, be working solely with adults, and would not be involved in any policy or decision-making activities for BCVSA. We therefore conclude that an exception can be allowed, provided that the Requestor is no longer identified in the joint memorandum as a resource contact as to matters addressed in it, and as long as she does not engage in any dealings with CSA or the local DSS that would bring her directly or indirectly into any contact whatever with BCVSA or the rape crisis programs.

Barbara M. Steckel, Acting Chairman
   Reverend John Wesley Holland
   Betty B. Nelson

Date: January 29, 1987