87.21

OPINION NO. 87-21

A field representative in the Addictions Services Administration in the Department of Health and Mental Hygiene has requested an opinion concerning whether and under what circumstances he may be affiliated with a private mental health clinic. We advise the Requestor and his Department, based on the information provided by him, and in reliance on prior advice, that the activity is allowable only if the clinic does not engage in any way in alcohol counseling activities related to the local health department or accept cases involving the State's Driving While Intoxicated (DWI) program, or alcohol counseling cases generally.

The Requestor works as a field representative in the Field Services Division in DHMH's Addictions Services Administration. The issue raised in this request is related to those presented in our Opinion No. 87-16, as it involves the same alcohol counseling and treatment programs that were at issue there. That Opinion involved an employee who is a counselor in a local health department providing services under the Department's alcohol services program. In that case we considered the general program of certifying private and public providers in this field and particularly evaluated the status of the private program of the employee involved there. This request, however, deals more directly with the certification and monitoring process that functions at the Headquarters level of the Addictions Services Administration, and an employee involved in implementing that process in the field.

The State law relating to alcohol counseling and treatment requires alcohol treatment programs to be certified in accordance with regulatory criteria set forth in COMAR 10.47.01. This requirement applies to any facility that provides treatment, care or rehabilitation of persons showing the effects of alcoholism or alcohol abuse. It applies to programs whose services are private, and, even though physicians' services are excepted, the Department has advised that "a formal program operated by that physician which utilizes non-physicians as primary practitioners would require departmental certification."

Certifications are issued by the Administration's Division of Evaluation and Certification, but the process also significantly involves the Requestor's Division of Field Services. The Chief of Field Services, the Requestor's supervisor, indicates that certification applications are filed originally with the Certification Division, and include a general protocol and program description. If the paperwork meets the minimum criteria, an on-site pre-certification review is conducted by a Certification Division staff person and a temporary 6-month certificate is issued under which the program is able to operate. This certificate may include what the Division Chief describes as "program improvement plans," that set forth aspects of the program that must be corrected in order for it to be fully in compliance with the regulatory standards.

Apparently, once the temporary certificate is issued, the program becomes an operational program within the jurisdiction of the Field Services Division for monitoring and other purposes. This Division is basically the liaison between these local programs and the headquarters management staff. In addition to being responsible for all monitoring of alcohol or drug abuse programs that are certified to provide alcohol or drug treatment, the Division serves as a communications link and is involved in resolving crises that may develop in program implementation. The regular monitoring process begins as soon as the temporary certificate is issued, and occurs on a routine basis, every month for programs funded by the Administration and every three or four months for those not receiving Administration funding.

The monitoring process involves working with the program to assist it in carrying out the improvements required by a certification. The monitoring involves development of reports relating to the certification and a revisit (with 60 days' notice) before issuing the final certificate. In this revisit there is an entrance conference which involves the Field Services Division representative, the Certification Division staff, and program staff of the entity being certified. The content and status of the program are reviewed and an agreement is reached regarding a program improvement plan under which the program will function. All of the parties agree that they understand the content and timing of the improvement plan and the field representative undertakes to monitor on that basis and to assist the program in accomplishing the goals within the time frame. Where the program improvement items are consistently not completed, then a recommendation could be made for decertification, but, according to the Division Chief, this rarely happens. More often a plan would be modified or there would be some basis for recognizing that the improvement cannot be done.

The Field Services Division includes 11 field representatives who are assigned on a more or less geographical basis to monitor alcohol and drug abuse programs. There are 210 such programs, 120 funded by the agency and 90 non-funded. The Requestor is a field representative currently assigned to Prince George's County. In this job he monitors alcohol programs, including the programs managed by the local health department and privately operated programs that are also certified. He indicates that he has in the past worked in other jurisdictions, but that his assignments have always deliberately not been in Howard County, where he has private activities.

This request involves the Requestor's part-time employment and partnership interest in a private medical clinic (the Clinic) in which he has a 50% ownership with a medical doctor who is the Clinic's medical director. He indicates that the facility provides general medical and psychiatric services, including alcohol counseling. He says that the services that he provides involve counseling, assessment and evaluation, and also cover the general scope of the practice, including marriage counseling, substance abuse counseling, AIDS, and problems with children. He advises that he works there about 3 hours per week. Though the facility is located in Howard County, the Requestor indicates that clients may come from any area in the State, including Prince George's County, the area of his current State assignment.

The Clinic has for the past 18 months been an applicant for certification under the Administration's certification program. The Requestor indicates that the program applied for certification in order to be able to receive referrals from the Howard County Health Department. It filed for and was apparently issued a temporary certificate. According to both the Chief of Field Services and the Chief of Evaluation and Certification, this program had problems meeting the certification requirements. The program continued, however, to function under the temporary certificate past the usual 6-month period. Eventually action was taken to advise that the program was not eligible and that the temporary certificate be discontinued. A hearing on the certificate was postponed and the program was given an opportunity to submit the proper information. The information was not submitted and subsequently the agency was notified that the request for certification was being withdrawn.

The Division of Field Services was involved in this program certification process in its usual monitoring role, and according to the Division Chief the situation created some problems, given the Requestor's employment with the unit. Apparently the field representative responsible for the program had difficulty in dealing with it and in providing what she thought were appropriate but negative comments, because of the Requestor's involvement with the program. Also, in view of his knowledge of the monitoring process there seems to have been an expectation that he would know how the program should be operated and the requirements would be met. There were also some direct discussions between the Requestor and the Chief of Certification to try and resolve the problems.

The Requestor's supervisor indicates that she was concerned that the program stayed in the system for 18 months with a temporary certificate, when it should have been fully certified or disapproved before that time. She advises that she was concerned early in the process that it was inappropriate for the Requestor to be a field representative administering a statewide program and also have a private program that needed to be monitored. She says that she discussed it with the then Administrator of the Alcohol Control Administration, who said that there was not a conflict problem. She continues to believe that this would present appearance problems, and indicates that field representatives have had questions about this situation raised by other program operators.

The Requestor has confirmed that the program has decided to withdraw its certification application. The agency appears prepared to accept this withdrawal, though this is with the understanding that the program will not be engaging in any alcohol counseling activities that would require certification. In withdrawing the request for certification, it appears that the Requestor believed that if the Clinic took no referrals from the local health department then its alcohol counseling activity could continue without certification. Agency representatives have advised the Commission, however, that this is not the case, and that certification would be required if there were any alcohol counseling or any DWI clients.

Moreover, based on advice to the Commission from the Secretary of DHMH (set forth in Opinion No. 87-16), the agency's policy would appear to be that certification is required even of a physician's office if services are primarily provided by a non-physician, and that certification is required for any DWI cases referred from the courts or the Department. Also, an agency Assistant Attorney General has advised that any program to be identified to the courts as a potential DWI referral must be certified by the Administration, notwithstanding any possible exception under the law, and this is the approach that is reflected in DHMH regulatory and other provisions implementing this aspect of the DWI program.

This request primarily presents issues under the outside employment and interest prohibitions of §3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law). This section prohibits an individual from being employed by or having an interest in an entity that is under his or his agency's authority or that has or is negotiating a contract with the agency (subsection (a)(1)(i)), or from having any other employment relationship that would impair his impartiality or independence of judgment (subsection (a)(1)(ii)). The Requestor clearly has both an interest and employment relationship with the Clinic which would bring into play the strict prohibition of subsection (a)(1)(i) to the extent that the entity is under the certification authority of his agency, and subsection (a)(1)(ii) if his employment with it results in impairment.

In our view, and based upon application of the principles discussed in Opinion 87-16, the strict prohibition of the Law does apply if certification is required, given the significant and continuing regulatory authority of the agency over certified programs. The activity would therefore only be allowed if an exception could be applied, pursuant to exception language in §3-103(a) that the prohibition applies except where, pursuant to regulations of the Commission, it is determined that there is no conflict of interest or appearance of conflict. This language was added to the Ethics Law in 1981 to deal with circumstances where the outside employment or interest is so remote from the official agency program or the individual's duties that a conflict of interest or appearance of conflict is unlikely. The regulations of the Commission (COMAR 19A.02.01, as to outside employment, and 19A.02.02, as to financial interests) set forth criteria that deal with the individual's official duties and their possible relationship with the private activity, as well as the nature of the private activities and how they relate to the person's agency program and duties.

We have reviewed the situation here and the Requestor's private activities. In our view, there are substantial issues created under many of the criteria, particularly because of the Requestor's employment in the Division that is responsible for monitoring his private program. It is also not clear that action on his program would have continued past the time when the situation should have been resolved had it not been for his position in the agency. Also, there have been problems in the agency's action on the certification and apparently have been appearance issues raised by other programs. Given our consistent approach to application of the exception regulations, we do not believe that there is sufficient remoteness in this situation to justify an exception.

Moreover, even if certification is not required, we believe that a question would still exist as to whether the impairment provision of subsection (a)(1)(ii) would apply. We have generally looked to the person's duties to determine application of this provision, and in our view the Requestor's employment duties in the monitoring process, and their relationship to the Clinic, are significant here. In Opinion No. 87-16, we were concerned that the individual employee not have any private activities that would have any involvement in the DWI process, since he worked in the agency's delivery of services in this program and there was thought to be substantial overlapping and interaction between these programs.

The Requestor's duties here do not involve the direct provision of services, as was the situation in Opinion No. 87-16. His duties are, however, part of the agency's administration and management of a statewide certification process. He monitors clinics and programs that are similar to his own and interacts with other professional staff in the Division who monitor clinics similar to his and make policy determinations as to coverage of the law. Additionally, some of the programs he monitors may be in competition with his clinic for clients.

We believe that the nature of the Requestor's duties and his private affiliation require a conclusion that his affiliation with the Clinic would result in impairment of his impartiality in carrying out his monitoring responsibilities if the facility has to be certified or if it handles any DWI or alcohol counseling cases that would require a determination by his agency as to coverage. In our view the very fact that the issue presented here revolves so significantly around the nature of the agency's authority as to any alcohol counseling is evidence that there is a connection that would interfere with his State responsibilities if he or the Clinic were to do alcohol counseling. We therefore advise the Requestor, based on the history of this situation and all the circumstances presented here, that his involvement with the Clinic is barred by the outside employment and interest provisions of the Ethics Law, to the extent that the Clinic's work includes alcohol counseling clients.

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

Date: December 1, 1987

* Rev. John Wesley Holland was a member of the Commission and participated in the consideration and decision regarding this request. He died prior to formal issuance of the Opinion.