An advisory opinion has been requested concerning whether a Field Operations Specialist in the Department of Vocational Rehabilitation may serve as chairman of a standing committee of two private professional associations. Considering the nature of this position and the proposed activities of the committee, we advise the Requestor that his service as the chairman would be allowable, but only as long as situations do not develop, particularly as to legislative issues, that present conflicts between his State agency and the activities of the committee.
This request is presented by the Director of the Field Operations Office in the Division of Vocational Rehabilitation (DVR) on behalf of a Staff Specialist in the Office. The mandate of the Division of Vocational Rehabilitation is to provide evaluation, counseling and rehabilitation services to injured and disabled workers throughout the State. The services are provided in 6 regional offices, each of which has a director who reports directly to the Director in the Field Operations Office. It is the function of the Office of Field Operations to administer the State rehabilitation services program statewide. The Director of the Office indicates that he provides general direction to the regional offices, interprets policy, prepares and manages the budget, and provides personnel direction.
The Requestor is the staff specialist and he and the Director are the only two professional staff in the unit. He indicates, and the Director confirms, that he does not supervise or provide direction to the regional staff that provide rehabilitation services. He does special project work in the Office responding to the priorities established by the Director. He assists in the development and implementation of an annual program plan, which defines areas of performance on which the Division wants to focus over the coming year. He does work with people in the field in connection with these activities, and the Director indicates that the Requestor may assist in developing legislative comments or reviewing proposals, especially those that relate to his particular expertise.
In addition to these tasks, the Requestor has three primary program responsibilities. First, he manages and coordinates the Independent Living Program. This is a federally funded program to provide assistance to handicapped individuals to live independently. Unlike the rehabilitation programs of the Division, individuals in this program do not have to be employable. Many of those serviced are developmentally disabled individuals being discharged from State residential facilities. The Independent Living Program provides for a variety of services, which are purchased under contract from providers in the community. The services are provided to individuals rather than to programs serving individuals, and may include prosthetic devices and equipment, education and training, and coordination of other services.
Also included in the Requestor's job responsibilities is serving as the grant monitor for the Center for Independent Living Project. In this program the DVR functions as a funnel of federal funds to a private non-profit organization, the Maryland Citizens for the Housing Disabled. The entity provides a variety of services to assist handicapped individuals in locating accessible and appropriate housing. In addition, the Requestor works with regional office staff coordinating the work of the job placement specialists, and is also the Division's liaison to the Workmen's Compensation Commission. He is described by the Director as the Office's expert on workmen's compensation. This Commission is the State agency that administers the program for compensation of workers who sustain job-related injuries. Very often the deliberations of that agency involve consideration of plans for rehabilitation or evaluations regarding the extent of the worker's disability or possible rehabilitation. Plans presented to the Commission may be reviewed by or developed by staff in the DVR, and the Requestor is the staff member through whom these cases are processed.
This request arises as a result of the Requestor's interest in serving as chairman of the Injured Workers Rehabilitation Task Force (the Task Force). This is a standing subcommittee of two private organizations. The Maryland Rehabilitation Association is a charter chapter of a national association of rehabilitation professionals from all sectors, including rehabilitation workers, counselors, doctors and nurses. Though membership is open to any one in the field, this organization tends to be primarily from the public sector. The other organization is the Chesapeake Association of Rehabilitation Providers in the Private Sector. Despite its name, it too, has an open membership policy, but most of its members are in the nongovernment side of provision of services to injured workers, including educators, attorneys and claims specialists.
The Task Force was established about two years ago, and grew out of a conclusion by these two groups at their annual meeting that there should be a greater effort to coordinate public and private approaches of rehabilitation workers, and that an information and education process should be developed to assist workers, insurers and others involved in rehabilitation to provide good and timely rehabilitation services to clients. (It should be noted here that this is not a licensed profession.) The group was set up as an ad hoc and informal group, and the Requestor at first was asked to participate by his agency.
The Task Force set up sub-groups, one of which was chaired by the Requestor and developed a manual of regulations, currently prescribed practices, and a glossary of terms used in this field. According to the Requestor, the structure and organization of the Task Force has remained very loose, with membership based on the original volunteers and persons recruited from various interested organizations. It was recently decided that it would establish itself as a separate entity, but would continue as a standing committee of the two professional organizations. In order to ensure more stability, however, the group is being more formally structured to provide for a defined membership designated by the various groups that are involved.
According to the Requestor, the chairmanship is not formally established in the by-laws of the organizations. He says that those who are on the committee decided they should have a chairman and asked him to do the job. The final decision has been postponed pending Ethics Commission review. The position is not compensated. The Requestor indicates that the program of the Task Force is not specifically mandated, but would take the direction of the leadership's interest. He indicates that his approach would be to continue the educational activity, including the manual and conferences, to work on communications and education of attorneys, insurance people and others involved in rehabilitation, to review licensure for providers, and to engage in legislative oversight.
The legislative activity is the one most likely to overlap with the Requestor's DVR position, and it is one in which he has been very active. He says that as a professional in the public sector in this field he personally has been an advocate for establishing a fee system in this area where the public agencies could bill insurance carriers for services. He says that his agency has not taken an official view as to this though it has shown some interest. He also says that he was assigned through the Lieutenant Governor's Office a review project regarding the workmen's compensation issues. He coordinated this effort (with the approval of the agency) through the Task Force, which developed recommendations that are now being reviewed by the agency and the administration.
The Director of the Office says that his concern is with the potential for conflict to develop, in particular, regarding the Task Force's legislative activities. Apparently this has not occurred to date. The Director advises that the Requestor does not currently serve as an agency representative on the Task Force, but is there in his private capacity. The Requestor also advises that the work product of the group has not involved his duty time or been part of his official activities. The Director, however, is concerned as to future activities with whether the roles can really be kept separate and whether the Requestor will be able to distinguish his advocacy role as a private professional from his functions within the Field Operations Office. His doing this could be difficult to monitor given that the subject matter is so related.
Section 3-103(a)(1) of the Public Ethics Law (Article 40A, §3-103(a)(1), Annotated Code of Maryland, the Ethics Law) prohibits an official or employee from being employed by an entity that has contractual or regulatory relationships with him or his agency (subsection (a)(1)(i)), and further bars any other employment that would impair the individual's impartiality or independence of judgment. The preliminary issue here is whether the Requestor's service as chairman of the Task Force would constitute employment for purposes of the Ethics Law. We have in prior Opinions consistently said that membership in a group does not constitute employment but that service as an officer does. (See Opinion No. 85-19.)
The Requestor here is a member of two private professional groups and in the anticipated restructuring of the Task Force would serve on it as a designee of one of them. This chairmanship does not appear to be a formally established or elected position of either group. Nevertheless, it is clearly intended to be a significant position, and the Task Force is to play a real policy role on behalf of the organizations. There is apparently also some likelihood that the position will eventually become more formalized. In our view, to conclude that the position is too informal to be considered as employment as contemplated in our prior Opinions would miss the reality of the situation. We therefore conclude that the Requestor's service as the Chairman of the Task Force would result in the kind of fiduciary and loyalty relationship that we have said constitutes employment for purposes of the Ethics Law.
The question is thus whether the prohibitions of §3-103(a) would apply to bar the service. Subsection (a)(1)(i) addresses employment with an entity that is subject to the agency's authority or contracts with the agency. Neither of these types of relationships appears to be present here. Though members of both groups may interact with DVR (and with the Workmen's Compensation Commission), there does not seem to be any formal regulatory or contractual relationship. Also, though some of the members are employees of DVR, the profession is not licensed and there is therefore no licensing relationship, as has been the situation in many of the other similar situations considered by the Ethics Commission.
The more significant concern here in our view is application of the impairment provision of subsection (a)(1)(ii) of the Law. This issue arises primarily from the actual or potential legislative role to be played by the Task Force, and the fact that it deals with subject matter that is also of significant interest and concern to the agency. The group appears in its early activity to have been viewed by the agency as a supportive resource, but it is not clear that his can be expected in the long run, and both the Requestor and the Director note that the possibility of there eventually being differences of opinion between the Task Force and the agency is real.
Under the current circumstances we do not believe that the Requestor's activity as chairman of the Task Force would necessarily be so related to his job that it would in itself result in an impairment of how he does his job, especially to the extent that the Task Force's work addresses professional issues and performs research work that does not conflict with agency programs or policy. We recognize, however, that Task Force activities could involve people that he works with and his being on the other side of issues in which his agency has taken or may take an official view. There is therefore potential for the activity to give rise to situations intended to be prohibited by the Ethics Law.
We therefore advise the Requestor and the agency that his service with the Task Force would not now be prohibited by the provisions of §3-103(a)(1), as long as the work of the Task Force continues not to present issues and conflicts regarding his agency duties, particularly as to legislative proposals and positions. We advise the Requestor, however, especially given the possibly overlapping interests of the agency and the Task Force, that he needs to take care to clearly distinguish between his State and private roles, and to be sensitive to the fact that if conflicts should develop he would need to resign from the chairmanship. He should also be aware of the continued application of the prestige and information provisions of §§3-104 and 3-107 of the Ethics Law.
M. Peter Moser, Chairman
William J. Evans
Betty B. Nelson
Barbara M. Steckel
Date: January 19, 1988