88.26

OPINION NO. 88-26

An opinion has been requested as to whether a Psychologist Associate in the Mental Health Clinic in Calvert County may have outside employment providing on-call service in the local hospital under a program funded through the local Health Department. We advise the Requestor and his Department that this service would come within the outside employment prohibition of the Public Ethics Law, and that an exception cannot be allowed to permit this employment.

The Requestor works as a staff psychologist in the Mental Health Clinic in Calvert County, providing psychotherapy services. He indicates that clients must be residents of the County and may be referred by private practitioners, other State agencies (such as the courts or the Department of Social Services or Parole and Probation), or self-referred. Services are provided without charge regardless of income level, though persons with incomes in excess of $35,000 tend to be referred to the private sector. They would be provided with a list of all practitioners in the County without any specific recommendation. This list may include persons who are on the staff of the local hospital (Calvert Memorial Hospital, the Hospital).

The Clinic's intake function is handled by all staff members on a rotating basis, and involves an initial interview where some general background information is collected along with demographic information and a general statement of the nature of the client's problem. The receptionist then schedules an interview with the staff psychiatrist, who evaluates the case, develops a recommended treatment plan, and makes an assignment to a therapist. This assignment would depend on the therapist's particular skills and expertise. The Requestor indicates that he generally works with adult individuals and couples, dealing with schizophrenia, manic depressive disorder and personality disorders.

All of the psychotherapeutic services provided to clients are provided directly by the Mental Health Clinic. There is apparently no referral of patients to other therapists. There may be referrals, however, for other services. For example, a referral may be made to a program such as the New Leaf program for drug abuse, or to another unit in the agency for spouse abuse counseling. These referrals are to other units in the agency, however, not to entities or providers in the private sector. In these situations, the patient continues to receive joint services both from the psychotherapist and the other agency program.

Some patients may be referred to the hospital for inpatient care. The Requestor advises that this applies especially to chronic patients who may have been hospitalized and upon their release referred to his unit for their followup care. He says that if the patient decompensates he may need to be readmitted. The only hospital in the County is Calvert Memorial Hospital, and any patients would be referred there for inpatient treatment. There are no State hospitals or facilities in the County. The Requestor indicates he would have contact with the Hospital when the patient is about to be discharged to set up an appointment at the Clinic for followup care. Assuming that the patient has agreed to the release of information, the Clinic therapists and the Hospital physician may coordinate together in reviewing the patient's history.

Apparently an effort is made to provide for continuity of services where a patient has chronic problems, with the same therapists sticking with the individual through treatment unless the person requests another therapist or drops out of the therapy for any appreciable period. According to the Requestor, about 50 percent of his caseload are chronic patients. He has some patients that he has been seeing since 1983 when he began this work. If these people are hospitalized he may have some coordinative responsibilities with the treating physicians at the Hospital.

This request arises from Requestor's employment providing on-call psychiatric emergency services to the Hospital. These on-call services are provided by the Hospital pursuant to a contract with the local Health Department as part of a Statewide program for providing psychiatric services in hospital emergency rooms. These are State funds funneled through the Southern Regional Office of the Mental Hygiene Administration. The grant is made and monitored by the local Health Department, in this case by the Director of the Mental Health Clinic, who is Requestor's second level supervisor.

The Director indicates that these funds are generally available to all hospitals with emergency rooms. The Hospital submits a budget to support the program. Currently the grant to Calvert is $48,000 annually, almost all of this reflecting salary costs. The Hospital has a full-time nurse during the day-time hours and handles week-ends and evenings through on-call contracts. Under the program, the nurse (during the day) evaluates a patient based on initial intake done by the emergency room physician and makes a recommendation. If further mental health treatment is recommended and the patient would on medical grounds be releasable, then the patient is seen by a hospital psychiatrist, who determines whether the patient will be admitted as an inpatient for psychiatric care.

On evenings and week-ends, the evaluation is done by an on-call person, and if further treatment is recommended then the psychiatrist is called to the Hospital. The Requestor indicates that the psychiatrist would likely be called in any case and advised of the proposed release of a patient if the evaluation leads to a recommendation that admission is not necessary, but the physician would not have to come to the Hospital. The Director says that the on-call service was only added to the grant last year after some years of insistence by the Hospital that the grant should be increased to include this amount in the grant. The inclusion of these funds in the grant means that the psychiatrists do not have to come into the Hospital to handle the emergency room mental health admissions during the nights and on week-ends. Calvert was the last County in Southern Maryland to provide on-call services.

The Hospital apparently advertised this position in the local paper, by word-of-mouth, and also with the staff at the Hospital. A flyer was also sent to the Health Department. The Requestor responded to the Hospital's flyer, and carries a beeper two nights a week. He will be called if a patient whose medical problems are cleared exhibits psychiatric problems. He does the evaluation and then consults, usually by phone, with the psychiatrist. He says that he tends to be called about 4 or 5 times per month, and says that this represents a very small percentage of the emergency room patients. Though very few of his Clinic patients would be expected to be seen in the emergency room, the Requestor recognizes that this is possible as some of his Clinic patients are chronic and could be brought to the Hospital after hours by their family or some other person. The Requestor lives in Greenbelt, Maryland and commutes to his job in Calvert County.

Apparently the Requestor's commuting situation is not uncommon, as there are very few mental health professionals who actually live in Calvert County. He indicates that there is therefore a problem in recruiting persons to work on-call. The Director agrees that this is true since people who are willing to commute for an hour to get to their job are unwilling to make the same drive in the middle of the night to answer an emergency room call. He says, however, that the inability to use State personnel will not seriously impair this service in the long run, partly because the Hospital has a strong interest in having the position funded. He has made it clear as contract manager that they would be expected to recruit personnel to meet the conditions of the grant.

The question here is application of the outside employment prohibition of §3-103(a)(1)(i) of the Public Ethics Law (Article 40A, §3-103(a)(1)(i), Annotated Code of Maryland, the Ethics Law), and our exception regulations promulgated pursuant to it. This provision bars an employee from having a private employment relationship with an entity that is under the authority of or has contractual dealings with his agency. In view of the existence of the grant agreement and the significant regulatory relationships between the Hospital and his agency, the Requestor's on-call work is clearly with an entity that has the covered dealings with his agency. It would therefore be barred by the strict prohibition of §3-103(a)(1)(i) unless an exception is allowable under our exception regulations (COMAR 19A.02.01).

These exception regulations are adopted pursuant to the provision in §3-103(a) that the prohibition applies except where, consistent with Commission regulations, it is determined that the employment does not present a conflict of interest or appearance of conflict. The regulations set forth guideline criteria that are designed to evaluate the potential relationships between private and official activities, to determine whether the two are sufficiently remote that a conflict or appearance of conflict is unlikely. They include, for example, consideration of whether the individual's State duties could impact on the private employer and whether the individual is in the unit of the agency that regulates or contracts with the private employer. They also consider whether the private duties relate to fulfillment of the contract with the agency or are compensated directly under it.

In reviewing the applicability of these guidelines to Requestor's situation, we must conclude that the relationships are not sufficiently remote to warrant the application of an exception to allow this employment to continue. We recognize that as a general matter, the Requestor is a clinical person who is not involved in the management or negotiation of this agreement on either side. As a technical and specific matter, however, we note that there are issues under several of the regulatory criteria. For example, the Requestor is in the unit that has the Hospital contract and is supervised by the person responsible for it.

Moreover, he is involved in implementing the contract for the Hospital and is directly paid under it. Also, he does work with the psychiatrists at the Hospital in connection with his State duties, and his State patients (at least those with chronic mental health problems) could also be a part of the population that he would see at the Hospital. Moreover, though the Director advises that he thinks he can manage the grant with the Hospital without regard to the fact that a member of his staff works under the contract, he also recognizes that there could be some issues if problems arise that relate directly to the Requestor's activities for the Hospital.

We have not in the past allowed an exception where the relationships are this direct. We have generally taken the position that contractors with State agencies may not hire employees of the agency to implement their contracts. (See, for example, Opinions No. 86-9, No. 84-25 and No. 83-8. Also, though local Health Department personnel have pointed out that there is a shortage of mental health personnel in the county, and that the Hospital may have recruitment difficulties, the Department's ethics officer has advised that the Department does not support an exception to allow this relationship, and that the contractor is obligated under the grant to comply with its terms without the use of agency employees.

Based on all of these circumstances and considering the Department's position, we advise the Requestor that his employment with the Hospital is inconsistent with the provisions of §3-103(a) of the Ethics Law, and that an exception to permit this work cannot be granted. He should therefore discontinue this work as soon as a reasonable time has passed to give the Hospital an opportunity to find a replacement.

M. Peter Moser, Chairman
   William J. Evans
   Rev. C. Anthony Muse
  *Betty B. Nelson
   Barbara M. Steckel

* Ms. Nelson was a member of the Commission when this request was considered and decided. Her resignation from the Commission was effective prior to issuance of the written Opinion.

Date: December 21, 1988