90.09

OPINION NO. 90-9

An opinion has been requested from the Maryland School for the Deaf (MSD) regarding whether its teachers and therapists may provide private tutoring or therapeutic language services to students from the School. Taking into account the special and unique circumstances of the population served by MSD, we advise that this activity can be allowed provided that careful monitoring and control mechanisms are established and implemented by the School.

The Maryland School for the Deaf was established in 1867 and is governed by a Board of Visitors appointed by the Governor. It is an independent State agency that is not under the State Department of Education, though it is a part of the State system of public education. It has a campus in Frederick, Maryland and one at Columbia, and is headed by a Superintendent appointed by the Board of Visitors. The School serves severely profoundly deaf children and at the Columbia campus its population includes mildly multiple handicapped. The students, who range in age from 4 to 21 at Frederick and 4 through 16 at Columbia, all receive the regular academic program. In addition to educational services, the school at both campuses provides communications services in speech, language therapy, sign language, and auditory training. The School's program provides mental health services primarily to the handicapped, though some other students receive counseling services. The program also includes development of library skills and social and life skills as well as prevocational skills. Both campuses are residential, though there are more day students at the Columbia campus.

This request arose from questions presented regarding the impact of the Public Ethics Law (Article 40A, Annotated Code of Maryland, the Ethics Law) where private tutoring services were being provided to a child by an MSD teacher. According to MSD staff deaf students tend to be particularly behind in speech skills and in language and reading. Parents may therefore seek special tutoring or help from teachers or therapists in these areas, often in direct supplementation of the services provided by the school. Given the residential character of the student body, it is apparently possible that these services would be provided on the campus under the same circumstances as the services provided by the State. School for the Deaf managers recognize the background and purpose of the Ethics Law's general prohibition against financial arrangements between employees and agency clients. They indicate, however, that there are only a limited number of people who are skilled in sign language that do not work at MSD, and that outside services for the deaf are also limited in their availability. The School's Superintendent advises that the request has been pursued because of these concerns about the uniqueness of the deaf community and the shortage in available tutoring and other services from individuals who are skilled in sign language and other means of communicating with the deaf.

Section 3-103(a) of the Ethics Law prohibits officials and employees from having private employment with entities that are subject to their authority or that of their agency (subsection (a)(1)(i)), and further prohibits any other employment that would impair the individual's impartiality and independence of judgment (subsection (a)(1)(ii)). Also, §3-104 of the Law prohibits a person from using the prestige of their office for their own economic gain or that of another, and §3-107 bars the use of confidential information for private economic gain.

The Ethics Commission in ten years of administering the Law has considered the application of these provisions to the private practice situation on numerous occasions. It has found that private practices that provide a variety of therapy, counseling and medical services are to be viewed as private sole proprietorship businesses with which the person has both an employment and interest relationship. In some of these situations there has been a direct authority or contract relationship subject to subsection (a)(1)(i) of the Law, while other situations involved the impairment, prestige and information provisions of the Law. In any case, these circumstances have presented serious questions where private practices involve clients who are also currently or who have recently been clients of the individual's agency.

Our Opinion No. 85-1 in particular spells out the Commission's concerns that private economic relationships could involve activities where the person or the agency has direct authority or contractual dealings and/or would otherwise impair the ability of a person to be impartial and objective in carrying out their State duties with regard to an individual. Allowing the solicitation and acceptance of agency clients in a private capacity has been viewed also as presenting significant potential questions regarding the use of one's official position and the use of information only available through one's official job status. Given the nature of the relationship between teachers and their MSD students, it would appear that some of the same concerns could exist here.

In this situation, however, the agency has suggested that the private tutoring by staff be allowed in view of the particular narrow population served by the School and the limited availability of services from other sources. The agency believes that there would be no improper advantage taken in this situation, and has indicated that it is prepared to develop whatever monitoring or other mechanisms would be necessary to avoid a situation where the activity could be abused. In particular, the agency has proposed to designate a "tutoring coordinator" to whom all tutoring requests (initiated by a parent or staff person) would be directed. The coordinator would match a tutor with the student from a list of staff personnel willing to tutor. The match would involve considering the student's particular needs and the tutor's ability and expertise, and no tutor would be eligible who is teaching or evaluating the particular student during the current academic year (or, if possible, at any time during the student's MSD career). Also, each tutor would annually submit a list identifying tutoring relationships during the year.

We believe that establishment of such a system would greatly enhance the likelihood that these services could be provided consistent with the principles of the Ethics Law. Such a system would be aimed at ensuring that controls are in place to limit the potential for issues to arise under the Law (such as the employment, participation, prestige and information provisions). The general approach described by the School should, however, include the following additional constraints:

1) a mechanism should exist for ensuring that the tutoring is not for services that can and should be supplied as part of the regular school program;

2) rates charged to students should be disclosed and an evaluation made to ensure that they are reasonable under the circumstances;

3) the activity should be monitored to ensure that the private work does not continue beyond the time when it is necessary;

4) the process should not be conducted to exclude opportunities for non-MSD tutors who may be qualified; and

5) managers and upper-level School administrative staff should not be included as tutors in the system.

We believe that if the School proceeds with a formal program as it has described, and within the guidelines that are discussed here, then this activity can be allowed. Given these restraints and controls, we believe, based on the agency assurances, that the potential for ethics issues would be sufficiently reduced as to meet statutory requirements. This activity should be closely monitored by the agency, however, and if problems do occur the Ethics Commission should be advised so that the situation can be reevaluated.

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

Date: June 21, 1990