87.10

OPINION NO. 87-10

An inquiry has been presented concerning whether an Office Clerk II (the Employee) in the Support Services Division of the Montgomery County Department of Social Services (MCDSS or the Department) may be a respite care worker through another Division of the local department. Considering the nature of the individual's duties and her proposed private activities, as well as her agency's findings, we conclude that an exception can be allowed to permit this activity pursuant to Commission exception regulations at COMAR 19A.02.01.

This request is presented by an Assistant Attorney General in the Department of Human Resources (DHR), on behalf of an office clerk in the MCDSS. The Employee works in the agency's Support Services unit, which functions as a central administrative section for the Department. Her duties involve processing forms for individuals in the income maintenance program. The major portion of her work deals with clients who receive monthly checks. She sends the reporting forms to the clients each month, logs in the returns and forwards the forms to the caseworkers. According to her supervisor, the Employee does not have any responsibility for eligibility determinations or any other involvement in the issuance of checks. She does have responsibilities for handling forms processing in the Social Security area and in the inputting of data in the agency's automated income maintenance system.

The question presented in this request arises as a result of the Employee's interest in becoming a care worker under the agency's Respite Care Program. This program is established pursuant to Article 88A, 128—129, Annotated Code of Maryland, and is designed to provide temporary assistance to families caring for the developmentally disabled or frail elders. A family becomes eligible through submission of an application, and care can be provided either on a purely supervisory basis or as personal care (which involves more hands on assistance or administration of medication). Subsidy with either State or county funds is possible based on a showing of need consistent with defined eligibility criteria. Care workers are also certified based on an application process pursuant to State regulations published in the Maryland Register. Three written references are required and an interview is conducted by the Director of the Respite Care Program. A recertification review is conducted each year. The care worker is considered to be a self-employed independent contractor with the Department and an agreement is executed that defines the responsibilities of the agency and the care worker.

A participating family acquires the services by contacting the agency with particulars regarding the specific need. Agency staff contact a care worker, who is free to take the assignment or not. The care worker deals with the family directly to finalize the arrangements, and payment is made by the family directly to the care worker, in full if the care is not subsidized. Where care is subsidized, an invoice is provided to the care worker certifying that the care was provided and how much was paid by the family. The care worker submits the invoices for payment of the subsidized amount to the agency on a monthly basis.

The Director of the Respite Care Program indicates that the agency has focused its recruitment efforts on the recruitment of care workers. She says that they advertise in the small local papers, and usually receive more inquiries from potential users than care workers. They also engage in community information and general public relations activities. She indicates that the County was able to recruit care workers a few years ago when the hourly fees were raised, but that recently attracting care workers to the program has been more difficult. She says that the fees paid are low, and that the program is in competition with a lot of other service-oriented programs.

The Respite Care Program is a part of the Home and Community Resources Unit, which is a unit within the Department's Adult Services Division. The other service Divisions are Family Services and Child Welfare Services. The Department also has an Income Maintenance Division and administrative services are included in Support Services. The Employee is solely assigned to do income maintenance work within the Support Services unit. She apparently has no interaction at all with the Adult Services Division generally or the Respite Care Program in particular. Though some of the unit's clients could also be income maintenance clients, this would apparently not be a factor in the Respite Care Program. Subsidy determinations for respite care are made based on qualifications criteria that are independent of the income maintenance program. Payments are separate and follow a different procedure than income maintenance, as they are billed by the care worker and paid directly to that person.

This request presents issues under the outside employment and interest prohibitions of §3-103(a)(1) of the Public Ethics Law (Article 40A, §3-103(a)(1), Annotated Code of Maryland, the Ethics Law). They are similar to those presented in prior Opinion No. 86-1. As in that Opinion, the Employee here would be a private contractor having an interest and employment relationship with a private provider entity that contracts with and is significantly under the authority of her agency. The activity would therefore be prohibited by that provision unless exception could be applied.

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 the 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 dealings with his private employer in the context of his State duties, 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. Based on the description of the Employee's duties, we find no issues under the criteria that relate to the impact of her State duties on her private activity. There are questions, however, arising from the nature of her proposed private activity, since she would be receiving compensation directly from the agency, and also would be engaging in an activity that involves significant regulation by the agency, both in the initial certification and in continuing monitoring.

Since the agency advises that the Employee's duties are ministerial, however, we believe that her situation can be covered by the additional exception included in the regulations and applied in Opinion No. 86-1. This exception implements language in §3-103(a)(2)(ii) allowing exception for ministerial employees pursuant to Commission regulations. "Ministerial employee" is defined in the regulations as "an employee who has limited duties that are defined with such precision as to time, mode and occasion as to leave no substantive exercise of discretion or judgment by the employee." The regulations provide that, as to ministerial employees, where the application of the criteria discussed above would preclude an exception, it could nevertheless be allowed

when the head of the agency involved specified that he believes the service or product to be supplied by the employee would be otherwise unavailable to the State and that there would be no conflict of interest or appearance of conflict that would impair the credibility of the agency, and this view is concurred in by the Commission.

In the situation here the Respite Care Director indicates that the agency has 350 families registered to receive services, and 43 providers, most of whom are otherwise employed full-time, and who serve on the average of once or twice per month. She indicates that there is some difficulty in recruiting care workers. The question is whether this situation is one that fits into the approach intended by the Commission in its development of the regulations and their application in Opinion No. 86-1. The Deputy Secretary of the Department of Human Resources, who is the agency ethics contact, has reviewed this issue and provided the views of the agency. Noting the data regarding the availability of care workers and the difficulty of recruitment, the Deputy Secretary concluded:

Because [the Employee's] state employment is ministerial and the agency as well as the Department in general has trouble recruiting providers for respite care and because there is no relationship between [the Employee's] state duties and her proposed duties as a Respite Care provider the Department believes [the Employee] should be allowed to serve as a Respite Care provider.... In allowing this situation I believe there would be no conflict of interest or appearance of conflict which would impair the credibility of the Department.

Under all of the circumstances presented here, we advise the Employee and the agency that an exception may be allowed to permit the Employee to be a Respite Care Worker. This decision is based on our understanding of the Employee's duties and the MCDSS organization as described to us, as well as the Department's determination. The Department is advised, however, to take care to ensure that as a provider the employee receives no special treatment as a result of her employment relationship with MCDSS.

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

Date: July 16, 1987