A request has been presented for an opinion as to whether a social worker in the Montgomery County Department of Social Services (MCDSS or the Department) may have private consulting and counseling employment with an entity that receives referrals from and contracts with his agency. We advise that an exception may be allowed to permit this activity, based on the description of the agency's organization and the individual's duties, and in reliance on the official agency view that this service would not present a conflict or appearance of conflict that would impair the credibility of the agency's mission.

The employee involved here is a Social Worker II in the Family Services Division of the MCDSS. This Division is one of three service divisions in the Department (the others are Child Welfare Services and Adult Services). The Director of the Division indicates that its job is to perform a variety of general service-oriented functions that do not clearly fall within Child Welfare or Adult Services areas. The Family Services Division includes five basic programs or units:

1) an intake unit of individuals who see people that come into the agency and who respond to calls for assistance;

2) a second unit operating an emergency shelter program, funded solely with County funds, that provides one-time money grants to families or others to assist in housing crises;

3) a day care unit, whose function is to assist families in acquiring day care services through the State;

4) the single parent program, which works primarily with pregnant teen-agers; and

5) the on-going family services unit, which provides on-going assistance to families whose problems cannot be resolved in intake.

Apparently most families that come to Family Services are in crisis and turn to the agency as a last resort. According to the Division Director, the County, through the DDS as well as other agencies, offers a significant amount of resources to families in distress. The personnel involved in on-going assistance work with the families to coordinate and plan on how these resources can be used and applied to resolution of the problems presented by a particular family. This can involve counseling, but only on a short-term (six week) basis, with the goal of keeping the family intact as a family unit. Where the office refers a family to other sources, they are likely to be county-run or funded programs, that according to the Division Director represent the Division's biggest and best referral source. The Director indicates that referrals to private entities are very limited; the County offices are obligated to take their cases on a priority basis. The Division apparently does not make referrals to the Family Therapy Institute.

The Employee is a senior worker in a field unit that is part of the on-going assistance program, and in this role provides direct assistance to families in need of services that are not handled by the intake section. He confirms the Director's advice that he seldom would make a referral or even a suggestion as to counseling, but could refer someone or make a suggestion where a service is needed, such as home health services. With the exception of subsidized day care services, the assistance offered by the Division, including the Employee's counseling and assistance services, is free of charge and is available to any county resident without regard to income. According to the Employee, however, he currently has no clients at the higher income levels, and as a practical matter most of the clients are low income. The Employee does not see his program as in competition with private service agencies.

In addition to his regular caseload, the Employee is also basically the second-in-command in the Division, as he is the Director's senior assistant. He performs some administrative functions and is her back-up when she is not in the office. Also, as is the case with most of the office staff, he is a generalist who can sit in for anyone who is not there. The Employee indicates that he has very few dealings with the Department's Child Welfare program. If he is working with a family and child abuse or neglect becomes a possible issue, the matter would be referred to the Child Welfare Division for review. If it is accepted by Child Welfare, then it is totally removed from Family Services responsibility. Any counseling, referrals or other services are provided within the very different (non-voluntary) statutory framework at that program.

This request arises from the Employee's interest in being affiliated with the Family Therapy Institute (the Institute), a private non-profit entity engaged in providing therapy to individuals, couples and families. According to the Employee, the Institute was originally established as a training institute for individuals who were interested particularly in marriage and family therapy. The Employee attended the Institute as a student and was asked to serve as a consultant when the Institute expanded its program to establish a private mental health clinic. The Institute is not regulated or licensed by the Department of Human Resources or the local DDS. It provides services to clients that are referred primarily from the schools, clergy or other therapists. The entity's Director indicates that they seldom have referrals from government agencies, and that this would represent less than 1% of the organization's total caseload. Referrals from the MCDSS are apparently solely in the child protection area.

The Institute's Director indicates that counselors for the Institute work as consultants used on a case appropriate basis. A client who comes to the Institute is evaluated and the Institute staff determines which therapists would be appropriate and then makes an assignment. The individual therapist is free to refuse the assignment, and the Employee could thus avoid any referrals from his agency, if such a referral were inadvertently made to him. All billing and payment by the client is made through the Institute and not directly with the therapist. The therapists submit reports and their work with the client is monitored and the progress in the case evaluated.

In addition to the very few referrals from the MCDSS, the Institute has two contracts with the Child Protection unit in the Child Welfare Division of the Department. One of the contracts involves the Institute's provision of case management services in a certain number of child abuse and child neglect cases. The MCDSS Director of Child Welfare Services indicates that the contract is designed to deal with the overflow caseload. She anticipates the referral of neglect and low risk abuse cases, though possibly some court cases will also be referred to the contractor. She also indicates that no one from Family Services was involved in developing the specifications for the contract or evaluating proposals, nor would anyone from that Division be expected to be involved in its implementation.

The second contract is a continuation of a prior contract under which the Intensive Family Services unit in the Child Protection Division receives consulting advice from the Institute as to selected cases. Intensive Family Services is a unit that in the Montgomery County Department works intensively over a 90-day period with families that have not otherwise been involved in the child welfare or the family services programs of the Department. The purpose of the program is to counsel families and work with them before they reach a point where they are a part of the protective services network. In this County the families that are a part of this service would thus not have come from another unit in the Department. The Requestor indicates that he has on occasion received a referral for continuing service from the Intensive Family Services Unit, but that he would not expect ever to make a referral to this unit that could eventually be a part of the Institute contract.

The Institute's Director indicates that the Employee would not be involved in its MCDSS contract performance. The entity will not be carrying out the case management contract with its regular clinic staff, but will be hiring four regular (though part-time) employees to work solely with the DSS in connection with the contract. The Employee is not now assigned any cases that may have been referred from the Department and would not in any way be involved in the contractual effort. He is also not involved in the management or policy of the entity, and would not provide any of the consultant services under the Intensive Family Services contract. The Employee anticipates his employment with the Institute as involving provision of "short-term problem solving therapy for 4-8 families per week." He would see the family at the Institute's facility, and be paid on a per session basis based on a percentage of the fee paid by the client to the entity. He hopes also to be involved in conference presentations on topics relating to problem solving family therapy and to write articles on the subject.

The question presented here is of the applicability to this situation of the outside employment prohibitions of §3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law). This section bars an employee from being employed by an entity that is under the authority of his agency (subsection (a)(1)(i)), or from having any other employment that would impair his impartiality or independence of judgment (subsection (a)(1)(ii)). Though the Employee describes his relationship with the Institute as that of a consultant, we believe that he has an employment relationship with the Institute, whatever he is called by them as a technical matter. This is consistent with our general approach in the past to look to the substance of a relationship rather than the form, generally finding that where services are provided an employment relationship exists. (See, for example, our Opinion No. 83-7.)

We believe, as a preliminary matter, that this employment relationship with the Institute is covered by the strict prohibition of subsection (a)(1)(i). The Institute apparently is preparing to begin implementation of a contractual arrangement with the MCDSS to provide case management services, and is continuing in another contractual consulting arrangement with the Child Protection unit of the agency's Child Welfare Division. These are both contracts with the Employee's agency, and his employment with the Institute would therefore be prohibited unless an exception can be allowed pursuant to the provision in §3-103(a) that the prohibition applies unless the employment would not present a conflict of interest or appearance of conflict.

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 appearance of conflict. Based on the agency's organization, the location of these contracts in another MCDSS Division, and the description of the Employee's duties, we find that there are limited issues relating to the nature of his impact on the entity as part of his official duties. Nor do we believe that there are issues relating to the contract arising from the nature of his private activity. He apparently has no management responsibilities for the Institute and will not be involved in any of its work regarding its contract with the agency. The entity appears to have enough private clinical work that his compensation need not be viewed as coming from the MCDSS contract.

The regulations call for a finding regarding the appearance of conflict, however, and our concern is that the Employee does provide privately services similar to those he provides in his State position. Additionally, due to his occasional managerial responsibilities, he would be known to the employees in the Child Welfare Division responsible for the agency's contract with his private employer. We have also, in implementing the impairment provision of subsection (a)(1)(ii), considered private practice relationships contemplated by health professionals and counselors such as the Employee. We have generally advised that this was possible, provided that the individuals not see in their private practice clients that have been referred from or have any relationship with their agency, and that they not affiliate with practices that accept agency referrals. (See, for example, Opinions No. 85-1, No. 83-20, No. 83-7, No. 82-49, No. 82-46, and No. 81-45.)

Nevertheless, we advise in this situation that the Employee here may be employed by the Institute to provide the clinical and other services that he describes. Our view is based on the description of the agency program and organization and on the insistence by the Employee and MCDSS personnel that there is no relationship between the Employee's family services assistance activities and the child welfare activities that involve the Institute. We also rely on the formal advice provided by the Deputy Secretary of the Department of Human Resources in this matter that the current situation does not present a conflict or appearance of conflict of interest, since these agency contracts are administered and operated outside of the Employee's unit, and as he does not see agency clients in his private job. We assume that the Employee would continue not to be involved in any way in the Institute's contractual efforts for DSS, and also that there continues to be no overlap in his MCDSS clients and the Institute. Under these circumstances, we advise that an exception can be allowed under §3-103(a)(1) of the Law and our exception regulations at COMAR 19A.02.01.

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

Date: August 13, 1987