90.10

OPINION NO. 90-10

An opinion has been requested concerning application of the employment and other provisions of the Public Ethics Law to the affiliation of the Chief Toxicologist in the Office of the State Medical Examiner with a private medical laboratory that contracts with and is regulated by the Department of Health and Mental Hygiene.1 We advise, based on the information provided by the Requestor and the Department as to his current duties in both positions, that an exception can be applied to allow his continued affiliation with the private entity. Careful constraints and monitoring, however, are necessary to ensure continued compliance with the Law.

The Requestor is employed as the State Toxicologist, a position that functions within the Office of the Chief Medical Examiner. This Office is a central office responsible to the Post-Mortem Examiners Commission, which manages a centralized medical examiner system whose function is to investigate violent and suspicious deaths or deaths unattended by physicians. The Office also serves as an advisor to a variety of State agencies, particularly law enforcement entities. Its laboratory is closely involved with the Maryland State Police in both the alcohol and drug testing areas. The Requestor as the Chief Toxicologist is responsible for managing and directing the laboratory functions of the Office, including both the histology lab and the toxicology lab. The histology lab performs tests and evaluations of slide tissues taken from dead bodies. The toxicology lab is responsible for reviewing specimens provided by county medical examiners to determine the presence of drugs and chemical substances.

Another primary aspect of the Requestor's job responsibilities entails his involvement in the State's drunk driving programs. As a result of legislation enacted in 1968, duties relating to DWI testing (both breathalyzer and blood) were assigned to the Medical Examiner's office. The State Toxicologist therefore has responsibilities relating to approval of equipment involving breath and blood testing for determining alcohol level. He also approves training programs and works closely with the Maryland State Police, which has centralized authority in the State to manage the alcohol testing program. He also works in his position as lab director with law enforcement and prosecution personnel, as the lab was the first and continues to be the leading forensic crime lab in the State. These responsibilities also would entail consultation with police personnel and State's Attorneys and other attorneys regarding the conduct of alcohol tests, and could also involve his service as an expert witness.

The 1990 Session of the General Assembly enacted a drugged driver program comparable to the DWI program, with similar training and other responsibilities assigned to the Medical Examiner's Office. Initiative for this program came in part from a coordinating committee put together by staff in the Office of the Governor. The State toxicology lab managed by the Requestor is currently the only State entity that has the capability of testing bodily fluids, and the Requestor is viewed as the State's expert in this area. Given this, and his experience with the DWI enforcement program, the Requestor was included as part of an ad hoc and informal committee working on the drugged driver program. This ad hoc committee was also called upon to perform a consulting function to the same staff within the Office of the Governor regarding a program for addressing drugs in the workplace, particularly in State agencies. This committee, including the Requestor, considered as an initial matter whether the State would do its employee testing in-house or contract for these services, and also assisted in reviewing procurement documents generated when it was determined that the drug testing services would be procured from a private contractor.

The Requestor has a private consulting/employment affiliation with a private medical laboratory (the Laboratory), a large laboratory testing facility certified by the Department of Health and Mental Hygiene (DHMH) to perform laboratory services in the State. This affiliation has involved his being listed on Laboratory stationery as one of two toxicologists. According to the Requestor, the Laboratory's primary focus is on routine clinical work performed for hospitals, physicians and others. In this connection it has under $100,000 in contracts with the Local Health Administration and DHMH facilities, and also receives a significant amount in payments through the Department's Medical Care Programs Administration. The Laboratory, through its Forensic Science Center, is also a laboratory certified by the National Institute on Drug Abuse (NIDA) to do workplace drug testing.

According to the Requestor, he has been consulting with the firm for several years, under a general understanding in the Office of the Medical Examiner that such outside activities are permissible. He indicates that he is not involved in the routine clinical testing aspects of the Laboratory's activity, but that the focus of his involvement with the entity is in the Forensic Science Center's workplace drug testing activities. He indicates that he was instrumental in the entity's efforts to qualify in recent years as a NIDA-certified lab, and in connection with NIDA certification requirements is identified as Director of Toxicology and Director of the Forensic Urine Drug Testing Section. Requestor advises that his duties with the firm average to about 10 hours per week, though under his agreement with the entity this could be exceeded. As a result of this work and an agreement relating to his prior relationship, the Requestor's Laboratory compensation is substantial.

The Requestor's work for the Laboratory is described as involving primarily the provision of advice as a consultant in the fields of clinical and employment-related forensic toxicology. He makes recommendations for the development, review, critique, and approval of the entity's laboratory procedures and its selection and training of employees (though he does not get directly involved in the entity's hiring decisions), and responds to technical inquiries on an ad hoc basis. The Requestor advises that his private duties have no involvement with the field of post-mortem or DWI-related toxicology in which he works for the Medical Examiner's office.

Also, though his advice regarding procedures may contribute to the Laboratory's compliance with DHMH's certification requirements, the Requestor indicates he has not been directly involved in any of its regulatory dealings with the Department, and that his duties with the Laboratory do not entail any clinical work or other activities in connection with the its contractual dealings with the Department or its sub-units. Nor, according to the Requestor, are his activities indispensable to the Laboratory or its Forensic Science Center's certification and licensing by DHMH. Apparently the Requestor's relationship with the Laboratory does not involve management or policy development or activities relating to its legislative interests. His focus is described as relating to the workplace drug testing activities of the Forensic Science Center.

The State Medical Examiner, who is the Requestor's supervisor, indicates that the Requestor works solely for the Office of the Chief Medical Examiner under his supervision and the supervision of the Post-Mortem Examiners Commission. He further advises that neither he nor the Requestor have any authority or play any role in the decision-making of the DHMH in its licensing or regulatory function or in its contract negotiation activities for clinical laboratory services. This individual recognizes that the Department has contractual relationships with the Requestor's private employer, but takes the view that none of this Laboratory work comes under the supervision or expertise of the Requestor in his private capacity. The State Medical Examiner also indicates that at no time has the Requestor's involvement with the Laboratory created a conflict of interest, and that the Requestor does not have the authority to negotiate contracts or to advocate legislation that might benefit the Laboratory.

The issue presented in this request is whether the Requestor's continued employment with the Laboratory would be barred by the employment prohibitions of §3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law). This section of the Law prohibits an official or employee from being employed by an entity that contracts with or is under the authority of his agency (subsection (a)(1)(i)), and from having any other employment that would impair his impartiality or independence of judgment (subsection (a)(1)(ii)).2 The Office of the State Medical Examiner is an entity that reports to the Post-Mortem Examiners Commission, which is an entity that functions at least for administrative purposes within the Department of Health and Mental Hygiene. Its employees, though they are appointed by the Commission (which is in turn appointed by the Governor) are treated as employees of the Department of Health and Mental Hygiene, an entity that, as noted above, has both contractual and regulatory dealings with the Laboratory. The Requestor's employment with it would thus be prohibited unless an exception is allowable.

Exception may be permitted under the provision in §3-103(a) that the prohibition applies except where, pursuant to Ethics 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 an authority or 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, the criteria consider whether the individual is in the agency unit that has authority over or contracts with the private employer, and also whether the individual would be responsible in the private capacity for ensuring compliance with agency requirements or implementing the agency contract. Consideration is also given to the general circumstances and the question of appearance of conflict, as well as the agency's position regarding the situation. We have evaluated the facts provided regarding the Requestor's situation in light of these criteria, and have concluded that an exception would be allowable.

The Medical Examiner's Office functions largely independently from the policy and other functions of the Department, and the Chief Medical Examiner advises that his office, though a part of DHMH for administrative purposes, has little operational involvement with the Department as to regulatory matters or as to the Department's provision of health services and funding. He also advises that the Requestor's affiliation as a consultant with the Laboratory has been consistent with the Office policy regarding private consulting activities of its professional staff, and has not in the past presented any conflict of interest with his duties. Moreover, the Requestor appears not to have a management or policy position with the Laboratory, and he indicates that his functions with the entity do not entail any interaction with the DHMH programs that regulate or certify the Laboratory or that use or fund its provision of clinical services.

We have also requested the views of the Department of Health and Mental Hygiene regarding the application of an exception in this situation. We have been advised by the agency's ethics representative that the Department would support exception with the understanding of certain restrictions. These include that any change in his duties in either his State position or his Laboratory employment be disclosed to the Ethics Commission and to the Department's Ethics Office, that the Requestor excuse himself from any Laboratory decisions impacting on its contractual relationship with the State, and that he not be involved in legislative activities on behalf of his private employer that would impact on its contractual or other relationships with the Department.

Under all of these circumstances, including the Medical Examiner's and the Department's views, we conclude that an exception can be allowed to permit this relationship to continue. We wish to reiterate the constraints suggested by the Department, however, and make it clear that this exception is based on the specific current factual circumstances of the Requestor's duties in both positions as described to us. We note that the Requestor does hold a key and unique position as the State's chief expert in the field of toxicological testing. He has in the past been called upon to provide it with expert advice in this area. Moreover, the State's programs and approaches in the drug testing area are still in the process of development. If the Requestor's duties change or if he is called upon to provide expert services to the State that would be impacted by his affiliation with the Laboratory, then the situation should be presented to the Ethics Commission for further review.

There is also potential here for the occurrence of other factual changes that would substantially impact on the allowability of this affiliation. For example, the Laboratory could become involved in criminal cases that would be adversarial to the Medical Examiner's Office. Or the Laboratory could otherwise become involved in a conflict with the State in such a way as to involve the Requestor in his public or private capacity. This situation will require careful monitoring by the DHMH.

Also, the Requestor should be aware of the continued applicability of the other provisions of the Ethics Law, particularly the disqualification provisions of § 3-101 and the prestige of office provisions of § 3-104. Section 3-101, for example, addresses the need to avoid participation in any matter on behalf of the State where the Laboratory has an interest. The section 3-104 prohibition against the use of prestige of office deals with the need to avoid the potential that the Requestor's State position could be used for his own gain or that of the Laboratory. In particular regard to this section, the Requestor should ensure that his name does not appear on the entity's letterhead, and that he is not included in any other documents being submitted to DHMH or other State agencies, as this may suggest his involvement in the substantive matters at issue.

Thus, as a general matter, we advise that exception from the employment prohibitions of the Law can be allowed as long as the Requestor's job responsibilities in both positions continue as they are described to us, and as long as the Requestor functions within the constraints described in this Opinion, including that he takes care not to use his position in such a way as to suggest that he may be privately involved in matters affecting the State. 032;

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

Date: June 21, 1990

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1 The request originally presented an issue regarding application of the Law to the Requestor's employment with the entity in view of its proposed involvement in a procurement action by the State Department of Personnel that involved the Requestor's field of expertise. As the entity's bid in this matter was rejected early in the State's review process, this aspect of the request is not discussed in this formal Opinion, though the Requestor was given informal advice on this issue.

2 Consideration of the impairment provision of §3-103(a) involves review of the relationships between official and private activities. As these considerations are very similar to those involved in evaluating application of the exception provisions of the section, we believe that this request is resolved by application of the exception language of the section and do not discuss the impairment provision further in the text of the Opinion.