89.11

OPINION NO. 89-11

An advisory opinion has been requested concerning whether a former employee of the Division of Correction Office of Health and Mental Health Services may accept employment with the current health services contractor to provide medical services at a correctional facility. Based on the information provided regarding the individual's duties with the Division and the contract process, we advise that the individual would be barred by §3-103(b) of the Public Ethics Law from working on this contract until after the completion of the formal review and contract renewal process.

This request is presented by a medical doctor who has worked in the correctional health services area both for the State and private providers. He is currently a private physician and has inquired as to whether he would be permitted by the Ethics Law to seek employment with a medical services vendor (the Vendor) to be a physician practitioner in correctional facilities pursuant to its current contract with the Department of Public Safety and Correctional Services. The Division of Correction (DOC) contracts now as it has in the past with a private entity to provide medical services to the inmates in the correctional facilities around the State. This is a sizable contract, amounting to approximately $60 million over a potential three-year period. Because of issues that have arisen in the past, the Department has previously been informally advised by the Commission that DOC employees should not be employed by bidders and that former employees should not be used on the contract without prior approval.

The Requestor was employed during the time period of the contract negotiations (Fall 1988) as a physician with the former contractor, providing medical services at two facilities in two separate time periods. He was working as a physician for the prior contractor at one of these facilities when the new contract was awarded. The new provider (the Vendor) took over on January 1, 1989, and consistent with changeovers of this type entered into contracts to retain some employees on site who had worked with the prior contractor. The Requestor indicates that he did not reach an agreement with the Vendor to do this and terminated his work at the facility and began to work instead for the DOC on January 25, 1989.

The DOC Health Care Office's Director indicates that the Requestor was hired as a result of his response to an advertisement to fill the vacant position of medical service consultant. The function of his position was to evaluate and monitor the medical services being provided by the new contractor. His job was to provide advice and recommendations regarding medical decisions and clinical actions. He served as chair of the medical review committee that included the directors of the four regions, and whose role was to review medical records for proper documentation and risk management concerns, and consider whether physicians working in the facilities were adhering to accepted standards of medical practice. The Director indicates that the Requestor had no involvement in the fiscal aspects of the contract or independent policy making responsibilities under the contract. He did, however, interact on a regular basis with management personnel of the contractor, as he was hired as an administrative physician.

The Requestor's period of employment was short, but involved the important time of initial start-up of the contract, and he was the primary medical doctor involved in this process on behalf of the agency. More particularly, his duties included going with a team on an impromptu basis to any facility for review and evaluation of the institution. His role as the medical consultant was to evaluate charts and orders and whether the medical treatment was proper from a clinical standpoint. He evaluated and reviewed charts where inmates had complaints and would do administrative reviews at some of the facilities. According to the Director, the Requestor made recommendations and provided advice regarding policies and actions necessary in contract implementation. Some of this advice resulted in decisions directed at the contractor.

At the time he left the agency, Requestor indicates that the current contractor advised that he could work for it if ethics issues were resolved. He did not pursue this, however, and undertook other unrelated work and private practice activities. These contacts were apparently casual and as they were not followed up on by Requestor, they therefore appear not to present issues under the §3-101 prohibition in the Public Ethics Law (Article 40A, §3-101, Annotated Code of Maryland, the Ethics Law) against participating in a matter that involves a party with whom one is negotiating or has arrangements regarding prospective employment. The Requestor has asked for Commission advice under the post-employment provisions of the Law, however, regarding his ability in the future to follow up on these contacts now and seek employment providing physician services at correctional facilities under the Vendor's current contract with the agency.

Section 3-103(b) of the Law prohibits a former official or employee from assisting or representing a party other than the State for compensation in any matter involving the State if the matter is one in which the employee participated significantly as a State employee. In implementing this provision we have tended to look first to the proposed new employment and then to the prior State duties to determine if the matters involved are the same, and second to consider what if any involvement the individual had in the matter as a State employee.1 In considering the concept of the term matter, for example, the Commission has looked to the definitions of this term in prior statutes and has generally followed the definition as any proceeding, application, submission, request for ruling, or other determination, contract, claim, case or other such particular matter. (Opinions No. 82-17 and 82-24.)

In the situation presented here, we believe it is clear that the Requestor would propose to work for the Vendor in implementation of the same contract as to which he had significant evaluation and monitoring responsibilities while he worked for the State. Moreover, we believe as a factual and legal matter this participation must be viewed as significant for purposes of application of §3-103(b). We have in the past followed an interpretation of the term participation that includes involvement through advice and recommendations as well as being an actual decision-maker. (Opinions No. 86-20, No. 82-24, and No. 81-37.) In this case, though Requestor's participation was short-lived, he was the key medical advisor in an important monitoring phase of a new contract. The Office Director indicates that he did make recommendations that were followed and that impacted directly on the contractor. Moreover, his work did involve interaction with the people with whom he now proposes to be employed.

Under these circumstances, we conclude that this Requestor did participate significantly in the current contract between DOC and the Vendor, and that his assistance of the Vendor in implementation of the contract is barred by §3-103(b) of the Law. We are advised, however, that this contract is planned to be reviewed and formal renewal action taken on an established schedule. We advise the Requestor and the agency as a general matter that if the contract is renewed and the Requestor is not involved in any way in the renewal process, then he would be able to be employed by the contractor in implementation of the subsequent contract.

William J. Evans, Chairman
    Rev. C. Anthony Muse
    Robert C. Rice, Ph.D.
    Barbara M. Steckel

Date: September 8, 1989

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1 See, for example, Opinions No. 86-24, No. 85-14, No. 85-9, No. 84-33, No. 83-12, No. 82-24, No. 82-17, No. 82-3, No. 81-15, and No. 80-1.