90.04

OPINION NO. 90-4

The Director of Health and Mental Health Services in the Division of Correction (DOC) has requested an opinion as to whether she may have a private consulting business that provides quality assurance consulting and other services to Baltimore City, including the Baltimore City Jail. We advise that the consulting business generally would not be barred. Nor would business with Baltimore City generally be prohibited, in the absence of any specific relationships that involve her position and duties with the State. If the private business were to contract with the Baltimore City Jail, however, we advise that the Requestor's affiliation with it would be prohibited.

In her position with DOC (a unit within the State Department of Public Safety and Correctional Services, DPSC) the Requestor is responsible for health services provided to inmates within the State prison system, which includes correctional institutions primarily operated by the State. Local correctional facilities include local jails and regional detention centers, operated primarily by local subdivisions. The Requestor's duties include the development, implementation and management of the administrative aspects of all contractual health services within DOC. She prepares contract specifications and RFP's, participates in the bid evaluation process and the awarding and negotiation of contracts, and handles contract monitoring and auditing. She participates in the Quality Assurance Team as part of the monitoring process, and is responsible for monitoring the system to ensure compliance with federal, State and local requirements, including those imposed by DPSC's Commission on Correctional Standards.

The Requestor, as the medical director for the prison system, is the State's expert on these matters and it has been suggested by the Department's ethics representative that she could be called upon as a resource in related local matters. Though Requestor's direct job duties involve the State correctional system, the local facilities, including the Baltimore City Jail, do have some significant dealings with the Department and with DOC. First, many detained local prisoners receiving health care in these facilities eventually become inmates in DOC institutions. Also, local facilities such as the Baltimore City Jail are involved with the Department pursuant to a provision in Article 27, § 705. This provision establishes a system, managed by DOC, of State financial assistance to localities for the building, maintenance or rehabilitation of a regional detention center.

In addition, all correctional facilities, including city jails and regional detention centers, are subject to the regulatory and monitoring authority of the Commission on Correctional Standards. This is a regulatory board established in Article 41, § 401, within the Department of Public Safety and Correctional Services. It establishes standards for the operation of correctional facilities within the State, including substantive standards regarding availability and quality of medical services in correctional facilities. These include requirements for 24-hour availability of physicians and access to hospitals and medical centers, as well as policies and procedures for health screening, handling of prescription and over-the-counter medication, emergency evacuation, and inmate medical records. The standards apply to facilities under the Requestor's authority as well as local facilities such as the Baltimore City Jail.

The Requestor is a nurse who has in the past worked in the certification and licensing unit of the Department of Health and Mental Hygiene. Apparently based on this expertise (particularly as it relates to nursing homes) the Requestor and her husband have established a business which involves, in addition to a small elderly home that provides personal care, a variety of consulting in the nursing home and quality assurance fields. The Requestor has also, through the business, provided consulting services in the correctional area for the State of Minnesota, and has served as an expert for a law firm in connection with litigation involving a nursing home. She has indicated that she would like to submit application to be a certified minority contractor with Baltimore City. She wants to pursue a consulting business in the area of quality assurance and health care in general, as well as in the area of health education. She has also discussed a potential opportunity to develop a quality assurance program for Baltimore City, including the Baltimore City Jail.

This request presents issues under that outside employment prohibition of §3-103(a) of the Public Ethics Law, as well as the prestige provision of §3-104 (Article 40A, §§3-103(a) and 3-104, Annotated Code of Maryland, the Ethics Law). Section 3-103(a) of the Law bars an official or employee from being employed by or having a financial interest in an entity that contracts with or is subject to the authority of her agency (subsection (a)(1)(i)), and from having any other employment that would impair her impartiality or independence of judgment (subsection (a)(1)(i)). Section 3-104 prohibits a person from using the prestige of their office for their own economic gain or that of another. As a person who provides services to and through her private company, the Requestor would be viewed as having an employment relationship with it. Under several prior Commission Opinions she would also be viewed as having an employment relationship with client persons or entities to which she provides services.

To the extent that the Requestor does not consult with the City Jail or other correctional facilities directly involved with funding or regulatory activities of her agency, we believe that the guidelines contained in prior Commission Opinions dealing with private consulting activities of State employees would apply. Three prior Opinions in this area are No. 85-18, No. 86-14, and No. 86-18. In these Opinions we advised that such consulting activities are not forbidden, but would be limited based on application of criteria relating to the inconsistent employment provisions of §3-103(a)(1)(ii) and the prestige provision of § 3-104. These include:

As to §3-103(a)(1)(ii):

1) whether the employment is out-of-State or in a different geographical jurisdiction than the employee's agency or duties;

2) whether the activity involves a subject matter or direction different from the employee's duties;

3) whether the employment is the type of undertaking that the person might be expected to do as part of State duties; and

4) whether the activity involves individuals or matters with which the person would be interacting or impacting in his State job.

As to §3-104 the criteria are:

1) how the employment is acquired or business under it is expected to be generated;

2) whether any part of the activity has been or would be expected to be on State time or as part of the person's State duties;

3) how the subject matter of the activity and the training and skill in it are related to State duties;

4) whether the outside activity involves efforts directly arising as a result of work performance, contacts or relationships that occur in connection with State responsibilities;

5) whether some particular aspect of the individual's State job would be impacted by the employment relationship; and

6) whether the outside employer would feel pressured or perceive an advantage in State dealings by hiring the State employee.

If the Requestor were to undertake any dealings with the City Jail or other correctional facilities that are either under her agency's authority or contract with it, we believe this would be covered by the strict prohibition of §3-103(a)(1)(i). (Note that though employment with other State agencies has not been viewed as covered by this provision, we have in the past said that employment with other levels of government, such as counties and cities, would be viewed as employment with an entity subject to the strict prohibition.) The work would therefore not be allowable unless an exception can be applied.

Exception from the strict employment provision of the Law 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 appearance of a conflict. The purpose is to permit private employment even where there is a contractual or authority 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 consider whether the individual would be responsible in the private capacity for implementing the agency contract or complying with agency regulations.

In applying these criteria to the Requestor's situation, we recognize that the primary focus of her position is on the facilities in the State system. She is the Department's only policy and management expert on health care delivery in the prison system, however, and the State and local prison facilities have direct interactions to the extent that inmates move regularly between State and local facilities. Also, given the existence of substantial agency requirements on all correctional facilities, it is to be expected that the Requestor's advice and involvement would be sought as to policy matters that would impact on the Baltimore City Jail.

Moreover, depending on the nature of the services she would be providing, there could be questions raised under the criteria that deal with the potential for a person to be involved in a private entity's compliance with agency regulation. She could, for example, be employed to work on the Jail's health program for the purpose of assisting it to meet the health-related standards of the Correctional Standards Commission. Also, there could be real appearance problems presented by her affiliation with the Jail or involvement in bidding to provide it services, since she could very well be in the situation of bidding against contractors with which she works in her State position. It would also seem to be unlikely that she could avoid a potential prestige problem under §3-104 of the Law, given her position in the Department.

Informal discussions by Commission staff with the agency ethics representative reflect some of these same concerns. This official (the Deputy Secretary of the Department) has expressed the view that the Requestor's private consulting would be a problem if it involved employment with the Baltimore City Jail or any kind of prison health facilities in the State. He advises that the Department is involved with the Jail both through the Correctional Standards Commission and the funding review related to capital improvements at the Jail. He is concerned that the Requestor would be "on the other side" of an agency concern about a local facility's compliance with agency standards, as well as with the possibility that she be available as an agency resource in reviewing plans for local facilities.

Under these circumstances, we advise the Requestor that involvement by her private business in matters or activities involving the Baltimore City Jail or other local correctional facilities would be inconsistent with the strict employment provisions of the Ethics Law, and that an exception could not be applied to permit this relationship. To the extent that her private business involves more generally directed consulting activities that are consistent with the criteria discussed in the Opinion, it would not be barred by the employment or other provisions of the Law.

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

Date: March 29, 1990