92.07

OPINION NO. 92-7

An opinion has been requested as to whether several Staff Specialists in the Nutrition and Transportation Office of the Maryland State Department of Education (MSDE) may have a private practice providing dietetic counseling and therapy, as well as other community-based consulting and educational services. We advise that this practice is allowable, as long as it does not conflict with their official relationships, and provided that it focuses primarily on clinical activities. Any other activities must be substantially limited to avoid interactions with dietitians, nutritionists and others with which the employees and their agency deal as part of their State program.

This request is presented by three individuals who work in the food and nutrition program of MSDE.1 The goal of this program is to protect the health and well being of Maryland's children and assist in educational progress by providing balanced and nutritious meals as well as nutrition education. Its activities are supported through participation in the federally funded Child Nutrition Program. They include the School Lunch Program, the School Breakfast Program, the Food Distribution Program, the Special Milk Program, the Child Care Food Program, the Summer Food Service Program, and the Nutrition Education and Training Program. The types of services available through the various programs include the distribution of donated food and provision of financial, supervisory, training and technical assistance.

One of the employees (Employee A) works in the Child Care Food program. This is a program that provides services and funding subsidies to public or private nonprofit organizations (called sponsors) licensed to provide nonresidential child care services for children in a variety of day care settings. Employee A's duties involve working with staff of the sponsor processing applications, explaining the rules and processing requirements, and providing technical assistance. A second employee (Employee B) works with the School Lunch, School Breakfast and Special Milk Programs for sponsors other than the public schools. She performs similar application processing and technical assistance functions for private schools and residential child care institutions involved in the School Lunch and Breakfast Programs. Employee B also works with parochial schools, day camps, and child care centers (where meals are not served) that participate in the Special Milk Program.

The third individual involved in this request (Employee C) works in the Program Assistance and Monitoring Section as a nutrition education and training specialist. She provides training and education support to sponsor management and personnel in the food and nutrition programs that the others work with, working with all of the sponsoring organizations except the public schools. She generates materials for use by the sponsoring organizations, which she uses herself in doing training. Employee C's programs may be directed at management and supervisory staff and include subjects like meal planning and compliance with the federal requirements. They could also be directed at kitchen staff and deal with supervising and managing a kitchen, dealing with subjects such as sanitary food handling, personnel management, quantity food service, equipment handling, and general food service training. Nutritional training is also provided for teachers.

This request involves a formally organized group private practice established by these three employees (the Group). This is an outgrowth of a private practice originally started by Employee C, who is a licensed and registered dietitian. She indicates that the practice was a continuation of dietary counseling and consulting that she did prior to her State employment. She advises that the counseling involved is relatively short term, involving meeting with a physician-referred patient and developing a nutrition or diet plan to deal with a particular medical problem, such as diabetes, and possibly with some limited follow-up. When the Medicaid program administered by the Health Department began to reimburse dietitians for therapeutic counseling provided to pregnant Medicaid recipients, Employee C continued her private counseling activities and applied for and received a provider number under this program.

As the volume of the activity increased Employee C and the others decided to establish the Group. The three employees in the Group have no supervisory relationship in the context of their official employment, though they work closely together in the same Office and in the same general field of child nutrition. Two are licensed dietitians and provide the actual counseling services. The third is involved in the finance and business aspects of the company. The organization is incorporated, with its Articles of Incorporation describing its purpose as "to establish a Nutrition Education and Dietary counseling Service Center which will provide a community based resource center served by registered dietitians for the purpose of translating, explaining, demonstrating and disseminating nutrition information and providing nutrition education to consumers of all ages, races, sexes and socioeconomic levels." The organization has a provider agreement with the Health Department under the Medicaid program.

Apparently the primary focus of the Group and most of what has been done so far relates to actual provision of direct one-on-one dietary counseling to individuals based on physician referrals. Apparently about 80 percent of this activity is Medicaid work and the remainder private physician referrals. The target population, though it may include some diabetes and weight reduction counseling, is primarily pregnant women. There appear to be, however, some more ambitious plans to broaden the organization's horizons to include a more community-based and directed nutrition and dietary counseling program. Plans include doing general community-directed nutrition counseling, training and education for health care providers in aspects of dietary and nutrition planning, and networking between dietitians and health care providers. The Group envisions serving as an employment/referral type of agency, recruiting dietitians who through the Group would take cases referred from physicians. Apparently in pursuit of this possibility an advertisement seeking to recruit dietitians has been published.

Though the three requesters believe that these broader activities would not entail interaction with persons that they encounter in their State jobs, the agency has reservations about this aspect of the activity. The Director of the Office of Nutrition and Transportation (the second line supervisor for all three of these individuals) indicates that all three have general responsibilities relating to nutrition, interacting with managerial level personnel in the sponsoring agencies served by their programs. They all work in the field around the State, and Employee C, who does training work, may also work more directly with food service and teaching personnel. All may have some interaction, though limited, with the health care community primarily through dealings with local health departments that have licensing functions as to the sponsors (such as child care facilities). Also, the Nutrition and Education Program deals with teen pregnancy issues. Employee C in the past developed a nutrition program for use at the Paquin school, a public Baltimore City High School for pregnant girls. Though the employee does not usually work with the public schools, Paquin is still using these materials.

The MSDE has an outside employment policy that applies employment limitations by reference to the Code of Ethics that preceded the Ethics Law. It also requires pre-approval of outside employment by its staff. Employee C submitted an agency form for her private practice in 1990, describing her outside work as provision of "therapeutic dietary consultation to high risk pregnant females who are referred by physicians", to be reimbursed through the Medicaid program. An updated form reflecting the Group organization had not been filed at the time the request was considered, nor had any of the others submitted the MSDE form.

Though she indicates she would not have problems with the limited counseling of specific patients referred by physicians, the Office Director has concerns when the practice broadens its activities to embrace the community generally. She says that she is aware of other MSDE dietitians who have limited practices. She says that the agency, however, has general programmatic involvement with nutritional programs, particularly for children. The Department and its staff are therefore involved in networking with local health agencies and wellness agencies to coordinate activities, and are generally involved with nutritionists and dietitians in the community. The Director is concerned about appearance problems if a group of the agency's employees are visibly and actively involved in a private business that functions significantly within this general nutrition community. Also, apparently there have been questions raised, as to some of the Group activities, by some local health department persons who called to ask about an advertisement and other aspects of the Group's activities.

This request presents issues under the outside employment and prestige of office provisions of the Public Ethics Law (Article 40A, Annotated Code of Maryland, the Ethics Law). Section 3-103(a)(1)(i) of the Law prohibits outside employment or interests with an entity that is subject to the authority of or has contractual dealings with an employee's agency. The Group itself does not appear to have any relationships or dealings with the MSDE that would bring this restriction into play. Rather, we believe that the question is application of the impairment provision of §3-103(a)(1)(ii) and the prestige provision of §3-104 of the Law. The impairment section forbids an employee from having any other employment that would impair one's impartiality or independence of judgment. §3-104 forbids the use of prestige of office for one's own economic gain or that of another.

We have considered these provisions of the Law in connection with private consulting and other businesses on several occasions, a few dealing particularly with private businesses undertaken by groups of employees in fields that could overlap the subject matter of their State agency or position. These opinions have focused on any relationships between an employee's official and private activities that would suggest that official duties could be impacted or that official position could be used in connection with the private work. In Opinion No. 86-14, for example, we discussed several factors that might be considered to determine whether an activity should be allowed. These include, for example, under §3-103(a)(1)(ii), whether the activity is out-of-State, whether it involves subject matter related to the employee's official duties, whether it is something that might be expected to be done as part of the person's job, and whether it involves individuals or entities with which the employees would be expected to interact in their official duties.

Factors under the prestige provisions of § 3-104 include consideration of how the employment or business under it is expected to be acquired, whether the activity has been or would be expected to be part of the person's official duties, how the training and expertise related to the activity are related to State duties, whether the activity involves efforts directly arising as a result of work performance or contacts made in the State job, whether any aspect of the State job would be impacted by the activity, and whether the outside employer or client would feel pressured or perceive an advantage in State dealings by hiring the State employee.

These criteria deal generally with the issue of whether the private business will involve populations, services, or functions that can be expected to overlap with the employees' agency program to present a conflict or appearance of conflict. In the situation here, the limited practice that involves one-on-one therapy to individual patients referred from physicians does not in our view present significant concerns, as long as the physicians and the clients are not persons that deal directly with these individuals in their State jobs. The practice would also, of course, have to avoid any referrals of pregnant teens or from physicians that might interact with pregnant teen nutritional programs with which the Employee C is involved in her State job.

We do have concerns, however, about the proposed practice if its activities expand to more general community education, recruitment and informational programs. The Department of Education as the manager of the School Breakfast and Lunch programs has historically had a significant government role in public issues relating to food and nutrition. Despite increasing public awareness in other arenas of nutritional issues, the agency continues to be seen as playing a major role in the public discussion of issues relating to this subject. These particular requestors all have duties that involve their field work and interaction throughout the State not only within the educational system but with other entities, including day care providers, residential facilities, adult day care programs, day camps, and social service agencies providing meals to the public. They and their agency tend to have interactions with health department and other social services personnel involved in these areas.

The requestors have expressed their view that this type of community directed endeavor could be pursued without encountering their agency programs. They apparently plan, however, general advertising to recruit other dietitians to work with the Group, as well as marketing of educational and informational services within the community generally. In our view, with this kind of approach, it is impossible to control the nature and extent of response to ensure that the activity would not result in overlap with their State position, especially given the agency's role in the area of nutrition and nutrition education. This kind of potential for overlap and the difficulty in controlling it have been the reasons why geographical and subject matter overlap have been two of the key factors we have applied in considering application of the employment and other provisions of the Law. The fact that questions about the Group's activities have been presented to the agency reinforces these concerns.

Based on these circumstances and considerations, we believe that expansion of the clinical practice to include community directed informational, training and consulting kinds of activities would bring the activity within the inconsistent employment and prestige provisions of §§3-103(a)(1)(ii) and 3-104 of the Ethics Law. Training activities directed specifically and solely at health care professionals who are not involved with school systems, and relating directly to the Group's clinical activities, would be allowable. However, this should not be expanded to include nutritionists and dietitians or general community concerns relating to nutritional issues, either in Maryland or in contiguous jurisdictions. Nor should the Group undertake to recruit within the dietary and nutritional community generally to serve as an employment/placement function within this field.

Though we recognize that these individuals see a line between the nature of their agency's functions and their proposed private activities, in our view the line they propose to define is too fine and too narrow to meet the Ethics Law's concerns about conflicts of interest and appearances of conflict. We therefore advise that the practice is permissible, but only to the extent that it is limited to clinical work and to the limited health professional training functions discussed above. Also, the employees should be aware that the practice is permitted only to the extent that it can occur without impacting on their official duties and relationships, and assuming that it does not involve any use of State time, materials, or telephone capacity. They should also take care to comply fully with review and reporting requirements of their agency.

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

Date: July 7, 1992