89.16

OPINION NO. 89-16

An opinion has been requested from the Director of the Nursing Program at a community college (the College) as to whether she may serve as a noncompensated member of the Board of Trustees of a hospital facility (the Hospital) that is affiliated with her Program. Taking into account the nature of the Requestor's duties and the relationship of the Hospital to her Program, we advise that this service would be barred by the employment prohibitions of the Public Ethics Law (Article 40A, Annotated Code of Maryland, the Ethics Law), and that an exception cannot be applied to allow this affiliation.

The Requestor has served for eight years as the Director of the Nursing Program at the College. She has also been serving for a little over a year as a member of the Board of Trustees of the Hospital. The nursing program at the College is a two-year program with approximately 100 students in each of its two classes. The Program includes, in addition to theory and laboratory courses, clinical work in each of the four semester. In order for students to do this work the College has affiliation agreements with most of the hospitals in the area. The Requestor indicates that facilities used in the Program must meet certain criteria when they are first selected, and must continue to meet them in order to retain the affiliation. The criteria are established by licensing and accreditation bodies and the facilities' continuing compliance with the criteria must be regularly reported by the Program.

A facility continues to be evaluated as with a new affiliation by both the clinical instructors and the Director to ensure that it meets the criteria and can accommodate the students, and that it understands the role that students will perform. Each semester the students also complete an evaluation of their experiences at a facility. Faculty and staff development personnel also meet with head nurses at a facility to evaluate whether course objectives are being met at the facility, to consider strengths and weaknesses, and discuss any problems. Such problems would ultimately be resolved by review by the Requestor as the Director of the Program.

Assignments of students to a particular facility are made by the clinical instructors, who are also present in the facility as supervisors of the students. The Requestor indicates that the Nurse Practice Act requires that students always be under the direct supervision of an instructor, and it is the instructor's license under which the students perform their clinical duties. The instructor coordinates with the hospital nursing staff, but is not an employee of the hospital. Also, the Requestor indicates that the nursing students may not be considered by the hospital as part of its staffing. She advises that most hospitals are involved in the program because at least a part of their mission includes education of professional personnel, and also because the affiliation provides a source of recruiting persons in the community.

The Requestor indicates that the affiliations and working relationships between the Program and the hospitals have been stable over the years, though agreements may be modified to meet changing programs or bed size or number of students. As Director of the Program, her role involves, in addition to her teaching duties, general administration of the Program and responsibility for continued compliance with accrediting criteria and maintenance of the relationship of the Program to the various accrediting agencies. She is also the person ultimately responsible for maintaining the relationships with clinical facilities; she is the operational manager who reviews the agreements, which are signed by the Provost. She is also the individual in the Program who supervises faculty and is responsible for resolution of any issues or problems that arise in the operational aspects of the agreements with the affiliated facilities.

This request involves the Requestor's service on the Board of Trustees of one of the hospitals with which the Program is affiliated. She indicates that she was approached for this position by the person who is the President of the Hospital. She says that she was known to this individual as a result of her involvement as a nursing educator in various committees, including, for example, a committee dealing with the nursing shortage. She indicates that the service on the Board is significant because nurses have been trying to enhance the position of the profession by serving on hospital boards and having an impact on policy. She indicates that the Board has not, during her service on it, been involved in any matters relating to the presence of students at the facility, though it is the primary governing body of the facility.

The situation presented here raises issues under the application of the outside employment provisions of §3-103(a) of the Ethics Law, which prohibits officials and employees from being employed by entities that contract with their agency. In particular, the request involves application of this prohibition and the statutory exception to it as applied in prior Commission Opinion No. 86-17. This Opinion involved the possible service by a community college president on the board of a hospital that was affiliated with the college's nursing program. We concluded there that the service would be viewed as an employment relationship, and that the agreement between the college and the hospital was a contractual relationship for purposes of the Law's employment provisions, based on the existence of substantial operational obligations on the part of both the hospital and the college. We advised the individual, given his management and administrative duties in both positions, that an exception to allow his service would not be appropriate.

In considering the circumstances presented here, we believe that the same general principles must be applied to the Requestor's situation and that her service on the Hospital Board must be viewed as employment that is prohibited by §3-103(a) unless an exception can be applied. The exception considered in Opinion No. 86-17 is permitted pursuant to exception language in §3-103(a) providing 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 relationships between the outside affiliation and the official duties or agency program are sufficiently remote that a conflict of interest or appearance of conflict is unlikely.

The regulatory criteria (COMAR 19A.02.01) consider the employee's duties and location in the agency and the possible impact on the private entity, and also evaluate the nature of the private activities and how they relate to the agency program. In particular, they consider whether the individual is in the agency unit that contracts with the private employer, and also whether the individual would be responsible in the private capacity for implementing the agency contract. Consideration is also given to the general circumstances and the question of appearance of conflict. In evaluating the Requestor's situation in view of these criteria, we note that though she does not have the broad duties of a college president, her responsibilities do, unlike the prior case, directly involve the Program and the facility with which she serves. Moreover, she supervises faculty who interact with the entity on a regular operational basis. Also, though the Hospital Board has apparently not dealt directly with issues involving the nursing program, it would be the operational entity within the facility that has ultimate responsibility for dealing with any such issues that do arise.

The Requestor thus appears to have actual or potential duties on both sides of these activities. We have not generally allowed an exception where, as here, there are several issues presented under the criteria. We are therefore unable to conclude, given these circumstances, that the relationships between the Hospital and the College, and the Requestor's duties in particular, are sufficiently remote to warrant the application of an exception to allow her to serve on the Hospital's Board. We therefore advise the Requestor and the College that the service must be discontinued. To the extent that this would result in a hardship, and assuming that the nonparticipation and other provisions of the Law (§§3-101, 3-104 and 3-107) can be complied with, a reasonable transition period could be allowed. The Requestor and College representatives should coordinate this with Commission staff.

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

Date: December 15, 1989