89.08

OPINION NO. 89-8

An advisory opinion has been requested from an Employee Training Specialist in the Department of Juvenile Services (DJS, formerly the Juvenile Services Agency) as to whether she may in her private practice as an employee development consultant contract to provide training consulting services to a private agency provider. Based on the circumstances of this situation, including the nature of the private services, we advise this Requestor that this activity would be barred by the outside employment provisions of §3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law) and that an exception could not be applied to permit it.

This request was presented by an individual employed in the Training Division of the Department of Juvenile Services. This agency is charged with the responsibility for managing the State's provision of services to delinquent children and children in need of supervision. It is the central administrative agency for juvenile intake, detention authorization, investigation, probation, protective supervision, and aftercare services, and the State juvenile, diagnostic, training detention, and rehabilitation institutions. In addition to the establishment and operation of several State facilities for the diagnosis, care, education and rehabilitation of children in need of these services, the Agency is authorized to provide for care of children by placing them in group homes and institutions that are operated by private nonprofit or for-profit entities, that must be in compliance with State licensing laws. These entities are reimbursed at "appropriate monthly rates," usually at a set amount per bed. The agency also licenses and monitors child care homes and child care institutions operated for the care, custody or control of a child alleged or adjudicated as delinquent or in need of supervision.

The Requestor works in the Agency's Training Division as an Employee Training Specialist IV. Her position is described as involving consultation "with agency administrators and staff to develop programs and processes that increase the organization's efficiency and improve the quality of services delivered to clients, and to assess the professional development needs of *agency* staff and to develop, design, conduct and evaluate training programs to meet those needs." She indicates that she works as an advisor to agency management developing management programs for staff and providing evaluation of management problems and as a facilitator in planning and organizing meetings. Another primary area of activity for the Requestor is in the area of employee training, dealing with substance abuse issues, AIDS in the workplace, development of communication skills, and assistance to managers in employee appraisal and performance evaluation activities.

According to the Requestor, her work is directed at agency employees and she does not deal directly with clients serviced by the agency or currently with agency contractors or providers. The situation that gave rise to this request, however, did come about as a result of her work in the past with a particular provider in Cumberland, Maryland. She indicated that she originally began to work with this entity as part of her State job, providing it with staff development assistance. After she had completed one program with the facility, a memorandum generally directed to agency employees was issued indicating that the practice of providing these services to providers as an agency resource would be discontinued. The reason for this was that the acquisition of training services was an element provided for and funded by the agency support of the provider.

As the Requestor had worked with this facility and developed a rapport with it, however, the entity requested that she continue to work with it as a private contractor. She has a private consulting practice through which she provides workshops and employee development services, primarily to private industry and government agencies. (She indicates that none of her other practice involves entities that have dealings with her agency.) She agreed to work with this facility at a set rate per day, with her underwriting her own transportation costs. She has always worked on vacation time, and provided assistance in conflict resolution and communication, in role model development for clients, and in developing a program for the entity's employees to deal with substance abuse issues as to clients.

The facility is funded on a per bed reimbursement by DJS, and includes in its budget a unit of work relating to staff development and training. It also receives funding from the Department of Human Resources, and has some private funding. Requestor indicates that her arrangement to continue to work with this facility as a private contractor was known to and approved by her supervisor. A question was raised, however, by an individual in the DJS's Monitoring Division, who learned of the training activity in a monitoring review and expressed the view that involvement in this work by an agency employee would not be appropriate. The DJS ethics contact, the Assistant Director for Administration, has concurred in this view. She indicates that the agency would generally object to this type of relationship.

This request presents issues primarily under the outside employment prohibitions of §3-103(a)(1)(i) of the Ethics Law, and particularly the exception provisions included in this section and implemented in Commission regulations. This section prohibits an employee from being employed by an entity that is subject to his agency's authority or contracts with the agency. Though the Requestor provides these services through a private practice that is not itself directly dealing with the DJS, we have in several prior opinions indicated that where personal services are provided, the employee will be viewed as having an employment relationship with the client even though there may be an intervening private entity. Since the facility is regulated by and contracts with Requestor's agency, her affiliation with it would be prohibited by this section unless an exception could be allowed.

Exception is permitted under the Law in accordance with regulations of the Commission where there is no conflict of interest or appearance of conflict, despite the technical inclusion of the situation within the prohibition. The regulations (COMAR 19A.02.01) generally define the criteria for determining whether the relationship between the private and the State work is sufficiently remote that the statutory criteria are met. They deal with the circumstances of the person's State job and how it would relate to the private employer, as well as with the private work and how it relates to the entity's relationship with the agency. Consideration is also given to the general circumstances and the question of appearance of conflict.

In our view, the Requestor's situation raises several issues under these criteria, even though she no longer has duties directly relating to the providers and does not work in the unit that directly monitors and funds the providers. She is providing services that are part of the program approved by and monitored by her agency, services that the agency believes are covered in the agency funds provided to the entity. Moreover, the Requestor does have responsibilities in her job that impact on agency employees responsible for dealing with the entity. These circumstances are similar to those of several other cases where we have considered private employment by State employees with private providers, particularly a group of Opinions dealing with the exception regulations and their application to individuals who worked for the Developmental Disabilities Administration and wanted to work as consultants to agency providers. (See, for example, Opinions No. 86-6, No. 85-20, No. 85-10, No. 84-14, and No. 84-3.)

In these Opinions we have as general matter prohibited the affiliation with the private provider, and this limitation has been reinforced by the agency concurrence. These Opinions reflect in our implementation of the employment and exception provisions of the Law the strong and consistent position that contractors and licensees should not be permitted to hire agency employees to assist in contract fulfillment or compliance with regulations. We have done this not only because of the obvious conflicting economic goals of the agencies and the providers/licensees, and the potential conflicting loyalties of employees to their private employer, but because we do not believe that agency monitoring and licensing functions should be compromised by the existence of agency employees on the staffs of private entities.

The situation presented by the Requestor fits within the approach taken in prior cases. Moreover, it would appear that she came to have this relationship as a result of her agency responsibilities.1 Also, her agency indicates that it does not believe that agency employees should have these types of affiliations with its providers. The exception provision in §3-103(a) of the Law allows exception where there is no conflict of interest or appearance of conflict. In implementing this provision in the regulations and in opinion reviews, we have sought to ensure that exceptions apply only where the relationships between the private and official affiliations are so limited that the possibility for conflict or appearance of conflict is remote. Under all of the circumstances here we are unable to conclude that the relationships are sufficiently remote to support this finding. We therefore advise the Requestor that this activity is within the restriction of §3-103(a) and that an exception cannot be applied to allow it to continue. We would recommend that the agency take steps to ensure that this general limitation is communicated to agency managers and employees.

* M. Peter Moser, Chairman
    Rev. C. Anthony Muse
    Robert C. Rice, Ph.D.
    Barbara M. Steckel

* Mr. Moser was a member of and Chairman of the Commission when this request was considered and decided, but his term expired on June 30, 1989, prior to formal issuance of the Opinion.

Date: August 3, 1989

——————

1 See our Opinions No. 88-10, No. 86-18, No. 86-14, and No. 85-18 for a discussion of guidelines under the inconsistent employment and prestige of office provisions of §3-103(a)(1)(ii) and 3-104 of the Law, generally indicating that consulting activities are barred where they are in the State, involve entities that have dealings with one's agency, and involve relationships that grew directly and immediately from agency activities.