87.07

OPINION NO. 87-7

An advisory opinion has been requested as to whether a Rehabilitation Specialist with the Maryland Rehabilitation Center (DOE), who may do evaluations for deaf clients, may serve on the Board of a private non-profit entity providing services to the deaf through a grant from the Department of Health and Mental Hygiene (DHMH). For the reasons and based on the facts discussed below, we advise this employee that this outside activity is not inconsistent with the Public Ethics Law.

The Maryland Rehabilitation Center (the Center) is a unit within the Division of Vocational Rehabilitation (DVR or the Division), which is within the Department of Education. The Division's role is to develop a statewide plan to provide rehabilitation services to all the State's handicapped citizens and to supervise the direct provision of rehabilitation services to such persons. It has regional offices that provide diagnostic counseling, training and placement services for those with vocational disabilities resulting from a handicap. The Rehabilitation Center is operated by the Division and has the mandate to provide a comprehensive program of evaluation, counseling, and training to eligible handicapped persons in residence at the Center.

The Director of the Center indicates that most of the Center's clients are referred from the regional DVR offices throughout the State. He says that individuals may be referred for evaluation to determine if they are eligible for services or if rehabilitation is feasible, or may already have been declared eligible. In either case, the Center evaluator does an employment evaluation of the client's skills and employment potential, and of his ability to complete a plan successfully. This evaluation involves a series of tests, evaluative reviews and counseling. A comprehensive evaluation report including a developmental vocational plan is prepared and provided to the referring source.

The evaluator's suggestions could include training, education (including college), or direct placement in an employment situation. The plans seldom reference specific programs, and both the Director and the Requestor emphasize that they are solely recommendations provided for the referring source. The referring individual is responsible for preparing and implementing the rehabilitation plan as required by the federal regulations that govern these programs. Though their recommendations are given great weight, and very frequently adopted, the evaluators' suggestions are not the final recommendation to the client (who, of course, makes the ultimate decision). Nor, according to the Director, does the Requestor (or others in his position) have any responsibility for funding or other implementation determinations.

This request arises from the fact that the Requestor, who is himself a hearing impaired consumer, serves on the Board of Directors of the Community Support Services for the Deaf, Inc. (CSSD). This is a private non-profit organization funded by the Developmental Disabilities Administration (DDA), a unit within the Department of Health and Mental Hygiene. This Administration is charged with the job of planning and implementing a statewide system of services to the developmentally disabled within the State. It funds, through grants or contracts, residential care, group home and apartment services, small residential centers, and activity programs.

Funds are provided to private provider entities through a process that usually begins as a competitive procurement. In response to the agency's publication of fund availability, new providers submit proposals describing their programs and providing other required bid information. Programs receive awards based on a DDA evaluation process, and the provider's performance is monitored in accordance with the proposal criteria and other regulatory provisions that define this program. Once a private provider is a part of the program, it maintains from year to year the level of funding to provide the services as defined in the original grant. Expansion to include more clients or expand the kinds of services provided is by competitive bidding. Otherwise, a provider receives new clients only when there is a vacancy.

According to DDA personnel, clients can be referred to the program from any source, including the Department and other government agencies such as the Center. The Administration has its own evaluators who review each individual referred to determine, in accordance with published agency criteria, whether the person is eligible for services generally, and whether the person can be placed on the critical needs list. These determinations are made solely by DDA staff. Neither the original referral source nor the potential provider entity has any control over or input into this decision. Private providers that have vacancies may select individuals whose needs they believe may best be met by the services they provide, but the selection is made from a list of those predetermined by DDA to be in critical need, and a client may only be placed with DDA approval. Apparently, of approximately 1500 DDA clients only two have been referred from the Center. One of these was deaf; neither are CSSD clients.

The CSSD is a private entity that became a DDA provider as a successor to another group, Deaf Referral Services (DRS). The Requestor indicates that he served on the DRS Board, but that he did not provide services to it and was not significantly involved in the establishment of CSSD and the transfer of DRS funds to it. According to him, the CSSD Board generally leaves the management and operation of the program to the entity's Executive Director and professional staff. He says that his activities with CSSD and DRS have never been connected with his State position. He participates solely because he is a member of the deaf community.

According to the DDA program chief, CSSD is funded totally by DDA sources. It serves a total of 38 to 44 deaf clients, including 9 in a residential program consisting of three 3-bedroom apartments. The entity also has a support services program under which it provides independent living assistance to 13 deaf clients living in an apartment building. None of its clients are in a training program or currently clients of the Center or DVR. Its employment-related activities involve supportive employment services provided to 17 to 22 individuals. These services include assisting the individual in getting a job and providing continuing support to help the person to stay on the job and keep it. The Requestor indicates that he does not himself provide any of these services or deal directly with the clients.

The question presented here is whether the Requestor's service on CSSD's board is employment that is barred by §3-103(a)(1) of the Public Ethics Law (Article 40A, §3-103(a)(1), Annotated Code of Maryland, the Ethics Law). This section of the Law prohibits an official or employee from being employed by or having a financial interest in an entity that contracts with or is under the authority of his agency (subsection (a)(1)(i)). It also prohibits any other employment that would impair the individual's impartiality or independence of judgment (subsection (a)(1)(ii)). Based on our prior interpretations in similar situations, the Requestor must be viewed as having an employment relationship with CSSD.1 As the entity does not have any contractual or authority relationships with either the Center or DVR, however, there does not appear to be an issue under the strict employment and financial interest prohibitions of §3-103(a)(1)(i) of the Law.

The question is thus whether this affiliation comes within the more general impairment provision of §3-103(a)(1)(ii). This section has been viewed by us as intended to address situations where the strict contractual and authority relationships of subsection (a)(1)(i) do not exist, but where the circumstances present a clear and serious concern that there is an actual or apparent conflict of interest. Since the provision by its terms deals with impairment of impartiality, the approach has been to look to an employee's duties and job functions, in order to determine whether his performance would be impacted by the outside affiliation. For example, in a situation involving service by an employee in a local Department of Social Services, the individual was advised she could not serve on the Board of the Maryland Welfare Rights Organization, an entity that had regular dealings with the individual and her agency. (See Opinion No. 83-13.) In another Opinion that involved a social worker affiliating with a private provider, the fact that the person worked in the intake unit and the private entity was a referral source were found to bar the relationship. (Opinion No. 83-7.)

In applying these principles to the situation presented here, we do not find facts that would require application of the impairment provision. The Requestor's duties involve a general employment evaluation and provision of recommendations to the referring source. Though he does evaluate deaf clients, and the private entity with which he is affiliated accepts deaf clients, the actual overlap of population between the Center and DDA seems to be very small. Moreover, the Requestor's recommendations apparently do not reference specific programs or providers. They are solely recommendations, and are directed to a third party referring source, who is responsible to prepare and implement a rehabilitation plan. The potential for relationships between the Requestor's private activities and DVR duties is further reduced by the fact that CSSD's dealings with the State are through another State agency, and subject to the entirely independent determinations and requirements of that agency.

Under all of these circumstances, we cannot conclude that the Requestor's service on the CSSD board would result in the kind of potential impact on or impairment of official duties intended to be addressed by §3-103(a)(1)(ii) of the Ethics Law. We therefore advise him that this service, as long as it continues as described to us, and as long as his job duties continue not to involve CSSD clients, would not be inconsistent with the Ethics Law.

Barbara M. Steckel, Chairman
   William J. Evans
   Reverend John Wesley Holland
   M. Peter Moser

Date: March 31, 1987

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1 See, for example, our Opinions No. 86-22, No. 85-19, No. 84-26, and No. 83-13.