An advisory opinion has been requested concerning whether a social worker in the single parent services program in the Baltimore City Department of Social Services (BCDSS) may have private employment with a private sexual abuse and rape crisis treatment and counseling center (Sexual Assault Recovery Center, the Center) that is funded by the Department of Human Resources (DHR) and has dealings with the BCDSS. We advise that an exception may be applied to allow this activity, provided that the individual's compensation and duties in her private work do not derive from the entity's grant with her agency.

This request is presented by an Assistant Attorney General in DHR on behalf of a social worker (the Employee) in the Single Parent Program, which is a unit within the Adult and Family Services Bureau in the BCDSS. This program is a teen pregnancy program. It serves only adolescent girls, dealing with teen parenting issues and with a primary goal of preventing pregnancy among this age group. Girls may be self-referred or referred by schools, clinics or parents. Provision of services does not have any financial criteria; the only eligibility limitation is that the client be 18 years of age or younger, and either pregnant, a parent or at risk of pregnancy.

The Employee indicates that the person is usually seen first in an intake process that is handled by all the caseworkers on a rotating basis. In intake an initial application is taken and the person is determined to be eligible and is assigned by the unit's supervisor to a particular caseworker. This caseworker then interviews the individual and defines needs and sets forth specific objectives and goals to work toward during a specific three-month period based on the particular situation. The case is reevaluated after three months to see if the services need to be continued. A caseworker will see a case up to 18 months and may request more time if the girl is still under 18. A client would be provided with a variety of counseling services in contraception, pre-natal care, parenting and continuing education.

The single parent program may interface with other units in the agency. For example, if the case presents a situation of child abuse and neglect, then a referral is automatically made to the Child Protective Services unit (part of the Child Welfare Bureau). This would be the situation if the teen parent were the victim of abuse, or is actually or in danger of abusing her own child, or if the child were not being properly taken care of or adequately supervised. The single parent caseworker would continue to work with the teen parent in conjunction with the Protective Services unit, though where there are protective services issues, the Child Protective Services unit is always the primary provider in a case.

According to the Employee, the caseworker in the single parent unit does make referrals and deal with a variety of service providers, both in the agency and in the private sector. They may, for example, work with adoptive services in the Department, make a referral to the Kennedy Institute if there are mental health issues, coordinate with education agencies, and work with job placement groups. She says that she has not dealt directly with the Center. She says that because her unit is dealing with clients under 18, and their children, any abuse situation would be referred to the Child Protective Services unit within the Department, rather than directly to any private care provider. There have been situations where she would continue with a case referred to Child Protection, but she is not aware that any has involved a referral to the Center.

This request involves the Employee's interest in having private employment with the Center. This is private entity that is a contractor to provide services to individuals under the Statewide program to provide counseling and other supportive services to meet the special needs of alleged victims of rape and sexual offenses. The Center provides a 24-hour crisis and counseling service to both child and adult victims of sexual assault, and adults who are incest survivors. It receives about 70 percent of its funding directly from DHR under a sole source contract from the Women's Services Program (part of DHR's Community Services Administration). Other sources of funds include Baltimore City, private foundations, and United Way. In addition to its grant award, the entity has a non-funded agreement with the BCDSS that is designed to ensure coordination with the Child Protective Services program where the Center is providing services to a child that has been the victim of sexual assault. The Center does not provide single parent services as a defined type of service.

The Employee indicates that she worked in the Department's sex abuse treatment program up until January of 1987, and was therefore familiar with the Center. She says that they approached her about working with them and worked out an employment relationship where she provides psychotherapy services to adult rape victims. She provides the services on-site and works there about 7 hours per week. She sees no children. Her supervisor and the Acting Director of the Adult and Family Services Bureau both recognize that the Center receives referrals from Child Protective Services. Neither believes that this would present any issue for the agency, however, given the very remote possibility that there would be a population overlap in the clients seen by the Employee in the Single Parent program and those seen by the Center as victims of sexual assault.

This request presents issues under the outside employment provisions of §3-103(a)(1) of the Public Ethics Law (Article 40A, §3-103(a)(1), Annotated Code of Maryland, the Ethics Law) and our outside employment exception regulations issued under this section (COMAR 19A.02.01). This provision of the Law prohibits an employee or official from having outside employment with an entity that has contractual dealings with her agency. Since the Employee's private work is with an entity that contracts with DHR and also has an agreement with the BCDSS, it would be prohibited by §3-103(a)(1)(i) unless an exception is allowed.

The exception language of the Law 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 contractual relationship, 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. They consider, in particular, whether the employee's private work involves implementation of the agency contract or is compensated directly under it.

We have in several prior Opinions, particularly a series of Opinions dealing with the developmental disabilities program in the Department of Health and Mental Hygiene, applied the regulations in connection with Department advice to prohibit the practice of private providers hiring agency employees to provide services under agency contracts. (See Opinion No. 85-10, e.g.) In Opinion No. 87-2, involving DHR, however, we concluded, as to the same private entity involved here (the Center), that there were sufficient non-DHR funds so that the individual could be viewed as compensated from private funds rather than under the DHR contract. We believe, considering the agency's view that there is no conflict of interest or appearance of conflict, that the same approach can be applied to this Employee.

Moreover, we note that there appears to be a very limited potential for relationships between her State program and the Center, since she is in the Adult and Family Services Bureau of a local Department and the Center's dealings with the agency are through Headquarters DHR and a unit within another Bureau of the local Department. Though there is some possibility that a client of hers could be involved in a sexual assault situation and be referred to Child Protective Services, and from them to the Center, this is described by the agency as extremely remote. We therefore believe that the situation presented by this Employee is more like those addressed in our Opinions No. 88-6 and No. 87-14, where DHR caseworkers in a local department were permitted to work for a private entity that received referrals from or contracted with another unit in their local agency.

Based on the circumstances of the Employee's BCDSS job responsibilities, and on the assumption that her work for the Center does not involve implementation of or compensation under the entity's contract with the Department, we conclude that our approach in these earlier DHR Opinions would apply here. We therefore advise the Employee that this employment would be allowable as an exception to the Law's employment prohibition.

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 15, 1988