92.08

OPINION NO. 92-8

Ethics Commission advisory opinion advice has been requested as to whether two employees in a local Department of Social Services (the DSS) may accept payment for provision of services to a private contractor in implementing an agency contract. We advise that this employment relationship is inconsistent with the employment provisions of the Public Ethics Law and that exception to permit acceptance of compensation is not allowable.

The situation presented here involves a contract by the Social Services Administration in the Department of Human Resources (DHR) for the development and conduct of training for child protective services staff, law enforcement personnel, State's Attorneys, and judges to improve the handling of child sexual abuse cases to limit the trauma to the child victim in conjunction with the investigative and prosecutorial process. The training was to be offered Statewide during 1991 in five sessions. Entities in submitting proposals for funding to the Department were to identify training sites, curriculum, personnel, and required equipment.

The Vendor proposal selected by DHR identified and provided resumes for persons who would serve on the curriculum planning groups and as trainers, including five social workers employed in several different local departments of social services (all units of DHR). A contract was awarded to develop and conduct these training sessions during 1991 at a cost not to exceed $36,793. Though the contract includes the standard contract paragraph regarding nonhiring of DHR or State employees, the five DHR employees participated as anticipated in the planning and development of the training program. They met for planning purposes on weekends and holidays, and apparently were also available to the conference coordinator for regular consultation with regard to general logistics and attendance issues. The training sessions under the contract have been completed. They were provided without registration fees to social services staff in local departments as well as to others involved in child protective services.

Two of the five employees have requested advice regarding acceptance of compensation for their participation for the Vendor under the contract. (The other three employees decided not to seek payment.) Employee A works in a local DSS as the Bureau Chief responsible for all intake programs, including child protective services, adult protective services, adult services assessments, the 24-hour crisis line, intake screening and assessment and the sexual abuse services unit. His duties include supervising and providing direction to personnel directly involved in providing services under these programs, and include assessing and determining training needs for staff. This staff includes several professionals involved in child protective services investigation. Employee A indicates that he knew Vendor personnel through prior work with the entity on a contract it had with the DSS. He says that he himself has been a Division Director in Child Protective Services and was recruited by the Vendor because of his 17 years in the field and his knowledge of people in the State. He participated in the planning committee in developing a curriculum, attending two sessions, one a weekend and one a State holiday, with payment of $250 per session for a total of $500. He also attended the training workshop in his area in his official capacity, as did some of his staff.

Employee B is a Social Worker III in the DSS who works in the Child Protective Services unit. He indicates that his unit receives a case after investigation (either with or without court action) has resulted in a finding of abuse. His job is described as "to provide continuing case management and clinical services for victims of child sexual abuse and their families according to the *federally mandated* treatment design... ." He says that this involves working with the child and the family to provide on-going therapy and generally supervise the situation. Employee B also advises that he has had dealings with the Vendor through its contacts with the DSS. He advises that he participated, on his own time, in the planning sessions for the workshop serving his region, apparently primarily by referring them to certain speakers and resource people. He and others in his unit attended the training workshop as part of their official duties.

This request presents issues under the employment provisions of §§3-103(a) and 3-105 of the Public Ethics Law (Article 40A, §3-103(a) and 3-105, Annotated Code of Maryland, the Ethics Law), as well as under §§3-104. §3-103(a)(1)(i) prohibits an employee from being employed by an entity that contracts with his agency. It also includes exception language providing that employment may be allowed pursuant to Commission regulations where it is determined that the employment would not present a conflict or the appearance of conflict. The Vendor is a contractor of the Department of Human Resources, and the provision of compensated services would be viewed as employment. Thus, the activity would be barred under this section unless an exception were allowed, and the request has been presented by these individuals as a request for exception.1

We believe, however, that the request is more appropriately considered under §3-105 of the Law. This section is basically the Ethics Law counterpart to the contract provision prohibiting employment on a contract by any employee whose official duties include matters relating to the subject matter of the contract. For purposes of the section, contract includes a contractual agreement involving payment of more than $1,000. The Vendor contract to develop this training program was for over $36,000. Though the services provided by the employees did not involve a regular continuing employment relationship with the Vendor, their involvement in providing services for compensation is the type of activity that the Ethics Commission has consistently viewed as employment. Thus, if these individuals' State employment involves duties relating to the subject matter of this contract, then their employment by the contractor would be barred by §3-105, and there is no exception allowance from this prohibition.

Both of these employees are involved in child protective services work as part of their official duties. They are thus part of the group of persons intended to be served by the results of this contract, and in fact both attended the workshop in their area as part of their official duties. It is our view under these circumstances that these employees must be seen as persons whose duties "include matters substantially relating to or affecting the subject matter" of the contract as contemplated in §3-105 of the Law. We recognize that the agency's interest in involving "representatives of target groups" in planning for the conferences may have been misinterpreted to call for employment of such persons in connection with the contract. It is clear that the agency made a significant administrative error in not recognizing this problem at an earlier point in the process. Nevertheless, we believe that allowance of this activity would be inconsistent with the clear language of §3-103(a) and 3-105 of the Ethics Law, as well as the appearance of conflict concerns expressed in §1-102 of the Law. Additionally, because the Vendor's selection of the employees for this activity appears to have substantially flowed from their State position, issues are presented under the use of prestige provision of §3-104.

In our view the Law's employment provisions and the contractual provisions taken together reflect the clear intent that State employees should not be employed by vendors to their agencies in connection with winning or implementing agency contracts. We therefore advise these employees that they should not engage in these activities for agency vendors. This particular past activity would result in a violation of the employment provisions of the Law if compensation is accepted. Employees should also take care in the future to avoid situations where "volunteer" assistance involves helping potential agency vendors prepare proposals to the agency, as this would present issues under §3-104 of the Law, which prohibits the use of the prestige of one's office for one's own economic gain or that of another.

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

Date: July 7, 1992

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1 Though we conclude that this request is resolved by application of §3-105 of the Law, it should be noted here that the facts as presented do not meet the regulatory requirements for allowing an exception under §3-103(a). (See COMAR 19A.02.01.)