An advisory opinion has been requested concerning whether an employment initiatives coordinator in the Income Maintenance Bureau of the Baltimore City Department of Social Services (BCDSS) may have private employment with an entity that contracts with the Department of Human Resources and that has dealings with BCDSS. We determine, given the nature of the individual's duties and the proposed private activity, that an exception is allowed to permit this affiliation, pursuant to §3-103(a), Annotated Code of Maryland, the Ethics Law).

This request is presented by an Assistant Attorney General in the Department of Human Resources (DHR), on behalf of a Human Service Administrator II in the BCDSS. The Employee works in the Income Maintenance Administration as coordinator of activities involving the employment initiatives program. This program (formerly the Work Incentive Demonstration Project) is in compliance with federal requirements designed to move welfare recipients into a job or job-training activity. The specifics of this program are implemented by the IMA caseworkers who interact directly with the clients. The caseworkers complete the appropriate forms, review possible jobs or training activities, and direct the clients to particular job training or employment entities. Client welfare recipients are required to participate in the program if they have no children under the age of six and are not incapacitated.

The Employee indicates, and his supervisor confirms, that he does not have any direct involvement with the clients. His job is to prepare policy memos and operating procedures that interpret for the caseworker the State and federal requirements regarding employment incentives. These procedures generally relate to paperwork flow and documentation. The substantive requirements of the program are defined, consistent with federal policy, by the State Income Maintenance Administration in DHR Headquarters. The Employee advises that he works with the Office of Welfare Employment Programs in coordinating and interpreting substantive program policies for transmission to the case workers.

He says he also works with the City Office of Manpower Resources (OMR), which is the local entity that is a clearinghouse for job-training programs in this area. If there is a problem with client bottleneck or workflow he may also communicate with OMR, and would also review the situation with the case workers that would in turn work directly with the clients. The Employee advises that he does not interact directly with private businesses as a general matter, except where a company wants to undertake a particular project. His duties also involve his supervising an individual involved with the CARE program. This reflects an office effort to facilitate the processing of public assistance for persons who are ex offenders where they need emergency food, clothing or other grants, in order to keep these individuals out of the underground economy. He says that his only dealings with social services units in the agency that deal with child welfare would involve meetings with personnel to explain to them the policies and procedures of the work incentives and CARE programs.

This request involves the Employee's private service with the Baltimore Family Life Center. This is a private nonprofit entity operating in Baltimore City and running three programs. The first, as described by the entity's Executive Director, involves therapeutic foster home placement. The entity is certified to perform these services through the Social Services Administration (SSA), a DHR headquarters unit. The entity is licensed through SSA and negotiates a payment rate with SSA. This rate is processed through the financial office and the local department is notified of the entity's availability to provide the service. Placements are made through the local department (here the BCDSS), which handles the reimbursement consistent with the rate negotiated with SSA, and also monitors and follows up on the placement. The BFLC's dealings in this program with the local department are with the Placement Unit of the Child and Family Services Bureau.

The second BFLC program is for the provision of intensive family therapy, which involves work directly with the Services to Families with Children Unit in the local department. Funds for and operating approval for this program are also through the headquarters SSA. The program involves therapy and intervention to families at risk of having a child or children removed as a result of neglect or abuse. In this program BFLC staff work directly with the local department in receiving referrals and providing periodic reports regarding the services. The entity has five full-time employees dedicated solely to working on this program.

The entity's third program activity involves endorsement and certification by the State Department of Health and Mental Hygiene (DHMH). This is an outpatient mental health program in which psychotherapeutic services are provided to families and children. Because BFLC is a certified clinic it can receive funds in this program from the Baltimore City Health Department, through the medical assistance program and through commercial insurance or private payment. The BFLC Executive Director indicates that neither this nor any of the other of the entity's activities involve its having any dealings with the Income Maintenance Program either at the local DSS level or DHR.

The employee's work with BFLC is as a psychotherapist in the third program. He advises, and the Executive Director confirms, that he was hired for the job through an advertisement in the newspaper. He works there 20 hours per week for four evenings and on Saturdays. He is paid at an hourly rate of $11.75 per hour. He works on site and is one of four psychotherapists, and two psychologists. The therapists are assigned cases by the entity's intake specialists based on their particular expertise. The Employee is a Licensed Certified Social Worker, and says that his primary area of specialty is work with delinquents and their families and that he also does some marriage counseling. There is a possibility that some of his clients in his private therapy work could be in or be candidates for the work incentive program or other programs with which he works for the BCDSS, though the likelihood of this appears to be remote.

The Employee's supervisor at the BCDSS is the Assistant Deputy Director for Income Maintenance. She says that this private employment does not have any impact at all on his job. He works in Income Maintenance, which is separate from the social services offices that would be dealing with private clients of his private employer. Moreover, she says that he does not have any contacts with clients at all, even in his IMA work. His supervisor describes the Employee as a staff person who provides paperwork and interpretation support to caseworkers who actually see clients. She says that even if a client complains about something in the process the complaint would be directed to the caseworker and not to this employee. According to his supervisor, the Employee's only possible interaction with clients could be if he were invited to a training site to give a speech and provide general program information to whoever is there.

The question presented here is application of the outside employment prohibitions of the Ethics Law, and particularly the possible allowance of an exception under the Ethics Commission's outside employment exception criteria. Particularly, §3-103(a)(1)(i) of the Law prohibits a person from being employed by an entity that is subject to his or his agency's authority or has contractual dealings with his agency. As we have consistently viewed DHR and the local departments of social services as a single cabinet level entity, the Employee's employment with BFLC technically comes within this prohibition, as the entity is both certified by and has contracts with DHR and BCDSS.

We believe, however, that this situation is within our exception regulations promulgated pursuant to §3-103(a). This section provides that the prohibition applies except where, pursuant to Commission regulations, the employment does not present a conflict of interest or the appearance of a conflict. The purpose is to permit private employment even where there is a contract or regulatory authority, where the relationship between the outside employment and the official duties or agency program are sufficiently remote that a conflict or appearance of conflict is unlikely. The regulatory criteria consider the employee's duties and location in the agency and the possible impact on the private employer, and also evaluate the nature of the private activities and how they relate to the agency program.

Based on the facts he has presented, the Requestor here satisfies these criteria. The Requestor works in a unit of the local department that does not have any direct involvement with the contracts or the program under which his private employer relates to the agency. His private duties do not involve either implementation of or compensation under the entity's contracts with his agency. Moreover, neither his supervisor nor other agency representatives involved in our consideration of this matter believe that his employment presents a conflict of interest problem for the agency. We therefore advise the Requestor that his private employment with the BFLC would be allowable pursuant to the exception provisions of the Ethics Law.

M. Peter Moser, Chairman
   William J. Evans
   Betty B. Nelson
   Barbara M. Steckel

Date: February 22, 1988