An advisory opinion has been requested concerning whether a social worker in the Montgomery County Department of Social Services (MCDSS) may have a private practice that includes services under the State Employee Assistance Program as a subcontractor to Family and Children's Services (FCS), an entity that contracts with the Department of Human Resources (DHR). We advise, based on our review of the practice and contract involved, and on the Department's view, that an exception can be applied to allow this activity.

This request is presented by an Assistant Attorney General in DHR on behalf of a Social Worker III in the Foster Care Unit in MCDSS. This unit is a part of the Child Welfare Division of the Montgomery County Department. The Employee works as a case manager primarily with adolescents. His job includes a variety of services, based on a plan that is developed dealing with the specific circumstances of each case. This plan can be modified or adjusted as the case progresses. The Employee indicates that he does not provide counseling or therapy himself but serves as a case manager/coordinator. He works, for example, monitoring the foster care placement to ensure that it is appropriate to the child and the situation and that it is the least restrictive possible for the particular child. He works with the child and the parents towards reunification of the family if this is appropriate, and directly with the child if independent living is a possible option.

In his case management activities, the Employee works with the foster home placement or with the residential facility. Many of his cases involve children at a residential facility, including several that are out-of-State. He also may interact with schools, courts, and to some extent private therapists. He says, however, that though some families may seek private counseling, most of those that he works with do not have the resources for private therapists or counselors. He also indicates that though he does make referrals in his job, he has not had occasion to deal at all with Family and Children's Services, as this entity does not operate in Montgomery County.

The Employee's request involves a private therapy practice that he maintains in his home, which is in Hagerstown, in Washington County. In this practice he provides individual, marital and family therapy to clients primarily from Washington County, with some clients from towns very near to Hagerstown in Pennsylvania and West Virginia. He gets referrals by word of mouth and also through advertising. Though his initial request identifies the Washington County DSS as a possible source of referrals, he has advised that he has in fact not gotten referrals from the County and will not in the future accept such referrals. Another aspect of the Employee's private practice involves his providing evaluation and assessments for employee assistance programs. He does this through serving as subcontractor to entities that contract with private companies to coordinate employee assistance programs. He currently has an arrangement like this with FCS in connection with the State's Employee Assistance Program.

Family and Children's Services is a Baltimore-based entity that provides a broad range of counseling and other services to families and children, including an adult day care center, a foster grandparent program, and homemaker-chore aging services. It operates primarily in the Baltimore metropolitan area, with offices in Anne Arundel, Baltimore, Carroll, Harford and Howard Counties, and in Baltimore City. According to the Ethics Commission's doing business list, it had in 1988 about $180,000 in contracts with the Department of Human Resources through the Community Programs Administration and the Social Services Administration.

During 1989 and also currently, Family and Children's Services also is a contractor to the Department of Personnel Employee Assistance Program. This program is managed by the Employee Services unit in the Department of Personnel, and is designed to provide State employees with an opportunity to seek a variety of personal services and assistance. The process is that an employee would call the EAP Office and be referred to Family and Children's Services. This office would set up an appointment for the individual with a therapist or counselor who does an assessment of the individual's problem and submits a report to FCS. According to the EAP personnel this subcontractor individual or entity would do the assessment, but not necessarily provide any continuing services. The EAP Office deals solely with the prime contractor, FCS, and does not approve or otherwise review the subcontractors. The contract provides for unit price payment per individual seen, with the maximum annual amount not to exceed a set dollar level. The Commission's doing business list indicates $81,934 in payments during 1988.

The Employee indicates that he is the FCS subcontractor to do these evaluations and assessments as to employees in the Washington County area. The person is referred to him by FCS. He sees the individual, makes an evaluation and submits a report to FCS. As a result of his evaluation, he can refer the individual to another treatment resource, can continue treatment himself, or can indicate that on-going treatment is not required. He says that he may take about 20% for on-going work. The Employee indicates that he may have about two to three evaluations per month over the course of a year, and that they are mostly (more than half) correctional employees (there are several State correctional facilities in the Hagerstown area). He has not under this arrangement had any employees referred from the Washington County DSS. His arrangement with FCS is a purchase of service arrangement reflected in a letter agreement. He is paid by the hour and receives no benefits.

We have addressed the question of private practices by social workers and other professionals such as health professionals and lawyers, generally applying the inconsistent employment and prestige provisions of §§3-103(a)(1)(ii) and 3-104 of the Public Ethics Law (Article 40A, §§3-103(a)(1)(ii) and 3-104, Annotated Code of Maryland, the Ethics Law). Individuals have been advised that private practices are not barred by these or other provisions of the Law, as long as the practice does not involve any clients that are referred by their agency or that are former agency clients or otherwise have had dealings or have relatives that have had dealings with the individual's agency.1 The situation here is different, even assuming that the Employee continues not to see any clients referred by the Washington County DSS. Because of his relationship with FCS, an agency contractor, his activity would come within the strict prohibition of §3-103(a)(1)(i), which bars employment with an entity that contracts with one's agency.

In considering outside employment issues, we have consistently held that separate units of cabinet level departments are part of the same agency, for purposes of the prohibition in §3-103(a)(1)(i) against being employed by an entity that contracts with an agency with which a person is affiliated. Also, we have tended to treat relationships involving the provision of services as employment relationships, even where they are technically defined as vendor relationships. (See, for example, Opinion No. 83-7.) The strict outside employment prohibition would therefore apply here, given the existence of contractual relationships between FCS and other units within the Department of Human Resources, unless an exception can be applied under our outside employment exception regulations.

The exception regulations (COMAR 19A.02.01) are issued pursuant to a proviso in §3-103(a) that it applies except where the activity would not present a conflict of interest or appearance of conflict. They are designed to define the circumstances where, despite the fact that an activity would technically fit within the prohibition, the relationship between an employee's official duties or his agency and the private employment or interest is so remote that the possibility of a conflict of interest or the appearance of conflict is unlikely. The regulatory guidelines are thus directed to identification of the types of relationships that might exist between an employee's State duties and his private business to determine whether they are sufficiently remote that the statutory criteria are met. They consider, for example, whether a person has any impact on or relationship with the private entity in his State job, and also whether the private activity would involve him in the entity's contractual or regulatory relationships with his agency.

In this situation there would appear to be few if any circumstances presented under the criteria that would bar application of an exception. Family and Children's Services is an entity that operates in the metropolitan Baltimore area. As it does not apparently function in Montgomery County it would therefore not be an entity to which the Requestor would make referrals in his official work. It had contracts in 1988 with the Department of Human Resources, through the headquarters offices of the Community Services Administration and the Social Services Administration. We are advised by personnel in these units that the contracts are for battered spouse services and child abuse prevention services and involve only Harford, Baltimore and Carroll Counties. Social Services also apparently has a small training contract with FCS that could include employees in Montgomery County. It addresses home care aide training, however, that would be unlikely to involve employees in the Employee's Child Welfare Division, and it is also not clear that Montgomery County participates to any significant extent in this training program.

There also do not appear to be any facts presented under the criteria that would indicate a problem arising from the nature of the private employment or the likelihood it would bring the Employee into contact with his agency or its programs. The Employee's work with the entity, as indicated above, is under a contract that it has with the State Department of Personnel. He does initial assessments of State employees referred under this program, primarily personnel from the several correctional facilities located in the Hagerstown area, where he lives and has his practice. He has indicated that he has never had a referral of an employee of the Washington County DSS.

Moreover, we have coordinated this request with the Department of Human Resources, which has advised that it "believes that his private practice does not represent a conflict or appearance of conflict as long as *he* does not solicit or accept referrals from any local Department of Social Services." Under all of these circumstance it is our conclusion that an exception can be allowed to permit this activity to continue as described, as long as the Employee complies with the conditions suggested by the Department, as well as the limitations defined by the Commission in its private practice Opinions.

M. Peter Moser, Chairman
   William J. Evans
   Rev. C. Anthony Muse
   Barbara M. Steckel

Date: May 24, 1989


1 See, for example, Opinions No. 85-20, No. 85-1, No. 84-14, No. 84-9, No. 82-46 and No. 81-45.