90.16

OPINION NO. 90-16

A request has been submitted by the Department of Human Resources (DHR) involving three separate issues relating to activities of staff in the Child Care Administration (CCA or the Administration, formerly the Office of Child Care Licensing and Regulation). The issues include: 1) how the Public Ethics Law applies to the affiliation by agency employees with private advocacy or provider groups; 2) application of the Law to past participation by a staff member in a Supreme Court brief submitted in a State criminal case related to her program, and her affiliation with a child advocacy group; and 3) application of the Law to certain teaching activities of Administration staff.

The Administration is a unit recently established within the Department of Human Resources reporting directly to the Secretary. Its mission is described as fostering "the availability of safe and affordable child care in a wholesome and healthy environment for Maryland's families... ." Pursuant to legislation enacted in 1988 that consolidated two child care licensing functions, the CCA has the responsibility for licensing day care homes and day care centers. This legislation also centralized these functions with Statewide management and organization. The result is a system including 12 Regional Offices that report to the Central Office. The agency has about 125 licensing specialists that perform the primarily licensing and compliance functions on a day-to-day operational basis. They review applications, handle background checks, and perform a variety of inspection and investigative functions in connection with both the licensing and compliance aspects of the agency's work. The recent reorganization further consolidated child care activities by moving purchase of care programs in this area from DHR's Social Services Administration to the new Child Care Administration.

The first issue presented in the request addresses the involvement by CCA staff with private entities. An example was discussed involving a private non-profit charitable and educational organization (the Organization) whose goal is to provide support services to the child care community. The Organization's activities include providing training for service providers in this area as well as functioning as an advocate both in the legislative and regulatory matters. The Organization has been very active in the regulatory process, reviewing and commenting in detail on agency actions and interacting regularly with agency managers. These activities involve continuing dealings with CCA and its staff. In addition, the Organization contracts with the DHR in a demonstration project to set up a Child Care Resource Network, and also has a contract with the Baltimore City Department of Social Services to provide resource referral for child care in Project Independence. According to the Organization's Executive Director, there is currently one person who is employed in the Compliance Division of CCA who serves as an elected member of the entity's Board of Directors in a term expiring in 1991. In addition to this formal service, however, there has apparently in the past been other involvement by agency staff with the Organization, particularly in connection with its Public Policy Committee. This Committee is a non-elective volunteer group. It has a regulatory subcommittee that reviews and provides detailed comments on CCA regulations and otherwise responds to agency regulatory actions. Apparently in the past an agency staff person has participated on the Public Policy Committee and in fact was Chair of the Regulations Committee, possibly functioning in this role as an agency representative. The Department of Human Resources has asked whether this affiliation should continue.

This part of the request presents issues primarily under §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 officials or employees from having any employment relationship with an entity that contracts with or is subject to the authority of their agency (subsection (a)(1)(i)), or from having any other employment relationship that would impair their impartiality or independence of judgment (subsection (a)(1)(ii)). The question is presented here as to service by agency staff as elected officers or directors of private entities involved with their agency. We have in several Opinions beginning in 1980 advised that service on operational management and policy boards of private entities results in an employment relationship even if it is not compensated. Also, this type of employment relationship has been determined to be prohibited by § 3-103(a) of the Law where the entity is one that contracts with or is regulated by the agency, or if it has other dealings or relationships with the agency that would impair an official's or employee's independence of judgment.

As to the particular situation here involving the Organization, we believe that the prohibitions of the Law apply, since the entity contracts with the agency and also interacts on a more or less regular basis with the agency as to its regulatory activities. Also, we believe that these principles regarding application of the employment provision of the Law would generally prohibit staff participation as officers, managers, or directors of private provider entities, associations or advocacy groups that have regulatory, contractual or other significant interactions with CCA or the Department. To the extent that any particular situations are seen by the Department to present some unique circumstances, these situations can be presented to the Commission for more detailed review.

There are two exceptions to this guidance generally limiting affiliations with private associations or provider or advocacy entities. First, the employment limitations of the Law have not generally been applied to membership in such organizations or to provision of non-compensated volunteer service on private time. In interpreting the Law in these situations we have advised that these kinds of relationships tend not to involve the kind of fiduciary and other duties of loyalty to the private entity that result from being an officer, director or employee. However, employees need to be advised that even as a member or volunteer they may not engage in activities that involve use of their official position or the use of confidential agency information for the private entity's benefit.

The second exception to the general principle has to do with official participation as an agency representative. The Ethics Commission has issued several opinions generally recognizing that agencies may make duty assignments of employees to work with private entities in order to further an agency mission. Where these assignments are properly made and the individual participates in the private activity as part of official agency duties, we have not viewed this as employment subject to the prohibition of §3-103(a) of the Law. These situations have involved a wide variety of circumstances which are reviewed and discussed in our Opinion No. 89-9. Agencies and employees have also been advised that in contexts where affiliation is part of official duties, individuals must be aware of Ethics Law constraints that apply to them as agency representatives. As to the particular example presented here by DHR, the involvement by an agency staff member with the Organization, though barred as an elected board member in a private capacity, would thus be allowable as part of an agency assignment, consistent, of course, with the constraints and parameters established by agency management.

The second issue presented in this request involves the participation by the agency's Director of Compliance in an amicus curiae brief submitted to the Supreme Court in support of the State in a criminal case. This individual, prior to her current CCA employment, while she was with the federal government, collaborated with several others in establishing a private advocacy group. She served as the organization's President until she left the federal government to return to State service in January 1990. Apparently since this individual was the primary energy behind the organization, it has been inactive since she left, except to participate with other advocacy groups in submitting a legal brief to the Supreme Court in connection with the appeal by the State of Maryland in a criminal child abuse case. The individual advises that she was not compensated for her services on the brief. She indicates that she expects to dissolve the corporation but has simply not had the time.

We are advised by the attorney for the State in the criminal appeal that he was approached by a group of people in the community, which included this individual's group, who were interested in the case because of the broad ramifications of the Maryland ruling for child abuse prosecutions all over the country. He says that he met with the people involved and discussed the case. He says that these briefs (there were also other amicus briefs) did not deal significantly with the facts or circumstances of the particular case and as far as he was aware did not entail the use or availability of any confidential information regarding the case or the situation. The attorney advises that the individual's participation as an amicus party was supportive of the State's case and did not present problems for the State's pursuit of its appeal.

The individual indicates that her participation in this effort began prior to her return to State service, and also that the part of it occurring after she took her current position was known to her supervisors in CCA and was approved. The Administrator concurs that she was aware of this activity, as was the Secretary of DHR, and that both thought that the employee could participate in this activity in support of the State's case. This aspect of the agency's request could present outside employment issues very like those discussed above regarding affiliations with private organizations. Given the nature of the entity as an advocacy group in the child care area, we believe that if this activity were to continue there could be application of the employment provisions in §3-103(a) of the Law. Issues could also be presented under the prestige, information or other provisions of the Ethics Law. We note, however, that this action seems not to have involved an adversary position to the individual's agency. Also, the entity is described as non-functioning at this point and soon to be dissolved. Based on the facts presented, and assuming the organization is promptly dissolved, we believe that this particular aspect of the request is moot and that further specific Commission review and action is not required.

The third issue presented in this request involves teaching activities by agency staff. This is an issue that has been considered informally in a situation where we advised that agency staff could not participate in teaching what is called the "64-hour course" in this field, and the agency has concurred in this advice. A different example was presented in this request, involving a particular employee who proposed to teach a community college course in Child Care Management. This individual decided not to teach the Fall course, but the issue continues as a general concern within the agency.

Basically, the requirements for day care center licensing provide for submission of a staffing plan with a licensing application. This plan must identify the management personnel and their credentials and background. The regulations require directors of centers and senior staff members to have completed at least 64 classroom hours in early childhood curriculum and child development beyond high school, which are specifically directed to the needs of children, 2 to 6 years old. The regulations also require that these personnel "indicate continued training" or show other valid continuing credentials. Staff aides are personnel that are supervised by senior staff members and may not assume responsibility for a group of children. The regulations require that these personnel be required to participate in training opportunities.

It is anticipated that the specific requirements of initial and continuing education will be more clearly defined as the agency begins to issue guidelines defining its programs, both as to substance and procedure. Agency personnel indicate that training of child care staff has become a factor in ensuring the adequacy and safety of child care services in the State and there are a variety of sources for such programs. These include provision of ad hoc seminars by advocacy and provider groups, more defined private training programs offered by various groups, and programs offered by community colleges, as well as academic degrees in this area offered by the four-year colleges and their graduate schools. Approvals of these educational sources for compliance purposes will apparently be done in the Central Office, and the Administrator indicates that policy development regarding the process and the approval criteria will be done through an ad hoc committee management process utilizing persons from all levels of the agency.

The agency advises in the context of this request that agency employees tend to be sought and want to be involved in this teaching activity. According to the agency its employees tend to be the individuals most likely to have the skills, training, and experience in this field. Administration personnel, however, will be involved in assuring compliance by providers and their personnel with training and operational requirements. Given the significance of the training aspect of the certification and compliance program, the compliance work here is sensitive and important, and should not be compromised by outside private employment by agency personnel.

The activities of teaching, lecturing and writing by State officials and employees present issues that we have addressed in several opinions, considering particularly the application of the outside employment provisions of §3-103(a) of the Ethics Law and the prestige provisions of §3-104. There has generally in this context been a distinction between community or four-year public college teaching and teaching with a private or non-profit entity. This is because the strict employment prohibition of §3-103(a)(1)(i) does not apply to secondary employment in another State agency. The impairment provision of subsection (a)(1)(ii) and the § 3-104 prestige provision have, however, been found to apply to public college teaching. For example, in Opinion No. 85-17, teaching, even in the State employment setting of a community college, was prohibited where the individual had management and contractual duties involving approval and continuation of the program, but was allowed for operational staff personnel not involved in the approval process.

Recognizing the nature of CCA's continuing organizational process that may define various requirements, we nevertheless believe that our prior informal advice that teaching should not be allowed of the 64-hour course that is a particular requirement for agency licensing continues to be correct. Teaching would also be barred in any private proprietary courses offered by entities that are provider or advocacy groups interacting with the agency. Participation could be permitted by the Department in dual State employment situations involving community colleges or other State facilities, as long as employees are not associated with the policy or education approval process and do not improperly use their State position in connection with these activities. In our view these affiliations should be monitored by the agency to ensure that issues do not develop where the teaching impacts on the agency's licensing, compliance or funding activities.

We recognize that this Opinion addresses several issues relating to the private affiliations and employment relationships of CCA employees in the child care field. The Child Care Administration is in the process of reorganization and is involved in an area of significant public concern and visibility. These general guidelines are designed to describe how prior Commission interpretations and application of the Ethics Law would apply to these circumstances, as a general matter. Agency managers should continue to monitor areas of concern in this regard and should not hesitate to seek further more specific advice as particular circumstances are presented.

William J. Evans, Chairman
   Mark C. Medairy, Jr.
   Robert C. Rice, Ph.D.
   Mary M. Thompson

Date: December 12, 1990