91.06

OPINION NO. 91-6

An advisory opinion has been requested as to whether a special needs adoption caseworker in a local Department of Social Services (DSS) may have a private business doing home studies for international adoptions. We advise the Requestor that this activity would be allowable based on the facts as provided and within the constraints set forth below.

The Requestor is a Social Worker III in a local DSS whose primary duties involve completion of adoption home studies to determine a family's eligibility to adopt a special needs child who is under the guardianship of the State Department of Social Services or a comparable agency in another state. Special needs children are those whose placement is difficult because of race or ethnic origin, age, a special handicap (emotional or physical), or sibling considerations. The home study involves meetings and interviews with the prospective families as well as collection of significant documentation, including, for example, birth and marriage certificates, criminal reports, and financial statements. The Requestor reviews references, conducts home visits, interacts with the prospective family, and may interview employers and others. She says that given the nature of the process people who are not appropriate for special needs adoption tend to select themselves out.

At the completion of the process the Requestor prepares a report that reviews the family and includes a recommendation as to what type of child might fit into the home. Adoptive families approved through this process become eligible for placements through the Maryland Adoption Registry Exchange (MARE), which receives referrals of prospective families from all of the local departments. Through MARE a family would be matched with a child and a process worked out for various reviews and meetings that would lead to placement of a child in a home. After a placement period of at least six months, an investigative report is jointly prepared by both the family's and the child's worker and submitted with the other paperwork (including the home study) in support of a petition filed with the court by the family. Both workers appear with the family, the child and the private counsel before the circuit judge.

According to Requestor, many adoptive families wish to adopt healthy newborns. Currently there are very few healthy newborns that are within the guardianship of the Department, and these families thus tend to work with private placement agencies or with attorneys or others involved in facilitating an independent placement, either in this country or internationally. The State Social Services Administration through its local departments does not handle any international adoptions, nor do the local departments do home studies for any families involved in independent adoptions, either international or within this country. Individuals who call the Department for home studies or other assistance in international or independent adoptions are referred to a private agency. The Requestor indicates that generally she refers them to FACE (Families Adopting Children Everywhere), which is an adoptive parent support group that assists people and can make referrals for home studies and other services.

The private work that is the subject of the Requestor's inquiry came about as a result of her follow up of a newspaper article about an individual in a neighboring state who has been actively involved in the process of arranging adoptions of children in a European country (the Country). Apparently this individual is a licensed agency in her own state. She works on site in the Country to identify children available for adoption by American families that have employed her. Such placements are made and adoptions finalized in the Country. The children enter the United States pursuant to a process of the federal Immigration and Naturalization Service (INS) that entails, among other things, home studies and other paperwork comparable to the type of documentation developed in the home study process conducted by the Requestor in her State employment.

The Requestor would like to begin a private business working with this individual preparing home studies for inter-country adoptions. She indicates that she would be dealing only with this individual, receiving referrals from her. She believes that there is a sufficient need that she would not need to advertise or otherwise solicit business. She would have complete control over cases that she accepts and anticipates doing no more than four or five a year as long as she is working full-time for the State. Requestor says that she would not refer any of her agency prospective families to this individual or have any private involvement at all with families that she encounters in the context of her State position. Though this work would involve a process very similar to Requestor's official duties, she indicates that the support documents are all generated or acquired by the family and that she would not be personally involved in going to any other State agency to acquire records. She would prepare a report that would be translated by her private employer and presented in the Country in support of an adoption petition filed in its courts.

The Requestor believes that she would not herself have to be a licensed child placement agency in order to prepare a home study report in this process1 She would be affiliating with an individual licensed in another state, and it is her understanding that licensing as a child placement agency in Maryland would not be required by her or her employer as long as the adoption is finalized in the other country. These requirements are based on regulatory provisions of the INS, which appear to allow for entry into the United States of children adopted in a foreign country based upon the home study recommendation of a placement agency licensed in the United States, but not necessarily in the state of the child's intended residence, as long as readoption in the place of residence is not required. Adoption or readoption within the United States may be required, but under some circumstances final adoption in a foreign country is accepted as valid and no judicial or other adoption process would be required in the United States.

The interpretation of this process is, of course, a matter of the federal law and regulations as implemented by the INS. For our purposes here, however, Requestor has stated that she intends to engage in home study work with an individual licensed in another state, and that she will not be doing work that will require her licensure as a child placement agency in the State of Maryland, or her affiliation with such an agency. Moreover, she would be involved only in foreign adoptions that would be finalized in the Country and would not entail readoption or other judicial action in the courts of the State of Maryland. Whether it is possible for her to function in this way consistent with the legal requirements of this process is a matter of INS law. Our advice to her assumes that her activities can in fact be conducted as described. If as a general matter or in any particular case, the application of the federal law involves her in an adoption process that does require her interaction with the Maryland system, then it is unlikely that the activity could be approved.

This factual description of the Requestor's proposed private work is significant for application of the employment provisions of §3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law), as well as the participation, prestige and information provisions of §§3-101, 3-104, and 3-107 of the Law. Section 3-103(a)(1)(i) bars employees from having any private employment or financial interest in an entity that is subject to their authority or that of their agency or that has contractual dealings with the agency. The Requestor's proposed work would be prohibited by this section if she is required to be a licensed child placement agency or to be affiliated with a Maryland child placement agency. If, however, she is able to carry out her private home study work as described, in a way that does not entail licensing and regulation by her agency, then this strict prohibition would not apply. The issue for our consideration would therefore be application of the §3-103(a)(1)(ii) bar against any employment that would impair one's impartiality and independence of judgment, and application of the conduct provisions in the other sections of the Law.

In our view, the work proposed by the Requestor is very like the private consulting that we have addressed in applying these provisions in several prior opinions. In these opinions (No. 89-1, No. 86-14 and No. 85-14) we identified criteria for evaluating activity under the impairment provision (§3-103(a)(1)(ii)) as including whether it entails activity in Maryland or for Maryland clients, whether it involves the same subject matter as an employee's State duties or is something that would be expected to be done in the State job, and whether it involves individuals or matters with which the employee would be interacting or impacting in the State job. As to the prestige provision of §3-104, we have said that considerations are whether the employment is acquired or business is generated in connection with State duties or contacts, whether it would be done on State time, involves State training, or otherwise flows directly from State work or contacts, and whether an outside employer or client would feel pressured or perceive an advantage from the person's State position.

These sections, as interpreted in these opinions, along with the nonparticipation and information provisions of the Law (§§3-101 and 3-107), raise several issues in the Requestor's situation. For example, §3-103(a)(1)(ii) prohibits secondary employment that would impair the person's impartiality. The Requestor would be performing the same function in her private capacity, and issues are raised under this section if she undertakes this work within Maryland, and particularly within the counties where she does home studies for her agency. She is in a position to advise and "weed out" people from the State system who could end up in the inter-country adoption system, and is in a position to refer families to her private employer. Also, given the nature of the total population of persons wanting to adopt, there could be a question of whether she could under these circumstances keep the two activities separate, and whether her very attempt to do so might create problems in her official context with families to whom she refuses service in the private capacity.

If the Requestor seeks to serve Maryland families in her private work, issues could also arise under §3-101 of the Law, which prohibits participation in one's official position in matters in which one has an interest or which involve as parties entities with which there are certain economic relationships. If she were in her private work to enter into relationships with families that later applied to her State agency, she would be required to disqualify herself from the case, thus possibly impairing her ability to fully and completely carry out her State duties. Sections 3-104 and 3-107 of the Law prohibit the use of prestige of office or official confidential information for one's own economic gain or that of another, and would present issues if her private employer were viewed as a referral source for persons in the State process. Also, particularly if she were working with Maryland families, her status as an adoption case worker for the State of Maryland could become a factor in establishing her status or qualification to perform this function privately.

Recognizing the concerns that arise under these provisions, and the fact that the Requestor would be doing the same work in her private capacity as she does for the State, we nevertheless believe that her establishment of a private business performing home studies for potential adoptive families outside of the State of Maryland would not be barred by the impairment and other provisions of the Ethics Law. Requestor may also serve families in Maryland, but only where the referring agency or potential parents do not have dealings with her agency, where Maryland courts are not involved, and where her status as a State employee will in no way be a factor in carrying out the service. These activities would be allowable, of course, only if they proceed in practice as the Requestor has described in our consideration of this request. Also, this private work is permitted only to the extent that it is possible without the requirement that she be licensed as a child placement agency by her Department or that she affiliate with such an agency, and assuming that she does not work on cases that could be expected to be considered in the Maryland courts.

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

Date: July 1, 1991

——————

1 The State law regarding adoptions provides that placements of minor children may be made only by persons licensed as a child placement agency, except for placements by or with relatives, or where a lawyer is preparing pleadings necessary to accomplish an adoption as part of the normal practice of law. (Family Law Article, §5-507, Annotated Code of Maryland) Child placement agency is defined to include a local DSS or a private agency engaged in this activity and licensed by the SSA pursuant to §5-507. (Family Law Article, §5-301(b))