92.11

OPINION NO. 92-11

An opinion has been requested as to whether the former Director of the Rosewood Center and the Great Oaks Center (both in the Developmental Disabilities Administration) may serve as a consultant to the agency in connection with implementation of programs at these facilities. Assuming that the circumstances presented here do not otherwise involve a violation of the post-employment or other provisions of the Public Ethics Law, we advise based on the facts presented, that service by the Former Employee in the proposed consultant capacity would not be prohibited, but must be pursued only under limited circumstances, as a contractual employee through the Department's contractual payroll system. The Department should, however, closely monitor this activity, given the potential for conflict resulting from past and current relationships existing in this situation.

This request is presented by the Developmental Disabilities Administration (DDA), a major program administration of the Department of Health & Mental Hygiene (DHMH). The DDA is responsible to plan, develop and direct a Statewide program for mentally retarded and developmentally disabled persons and their families. It operates residential facilities and provides funds to private providers for purchased care, group homes and apartments, small residential centers, and daytime programs for developmentally disabled persons. Rosewood Center is a residential facility located in Owings Mills that provides for the care, education, training, and habilitation of mentally retarded persons from all parts of the State. Great Oaks Center serves mentally retarded and developmentally disabled persons from Calvert, Charles, Montgomery, Prince George's and St. Mary's counties. It provides a full range of comprehensive and diversified services and programs, including respite care and day care programs.

In their continuing residential and related activities, both of these facilities are subject to significant monitoring. First, since residents of these facilities frequently are eligible for medical and disability reimbursement through federal programs, these facilities are subject to federal licensing and certification requirements. Second, under the Civil Rights for Institutional Persons Act (CRIPA), the United States Department of Justice investigates allegations of inadequate services at facilities such as Rosewood and Great Oaks. And third, there are a variety of private advocacy groups that act on behalf of persons who are mentally retarded, disabled or residents of institutional facilities. The Maryland Disability Law Center (MDLC) is a private group that is active in this type of advocacy and has been involved in litigation designed to require agency action in connection with alleged inadequate conditions at residential facilities.

Both Rosewood and Great Oaks have been subject to concerns within the context of this monitoring, and according to the DDA Director and DHMH Counsel, the agency's successful response has been largely related to the services provided by the Former Employee. This individual is a psychologist with a specialty in behavior disorders and severe handicaps. He has implemented a program system in another State involving facilities like Rosewood and Great Oaks that were in danger of being decertified, and was recommended to DDA by federal inspectors in this field as a person with a successful program. He was employed by DDA in 1989, to serve both as Regional Director of the Central Region and as Director of the Rosewood facility. According to the Director, when similar issues surfaced at the Great Oaks Center, the Former Employee was assigned to serve with that facility as well as Rosewood, to implement his program there.

The Former Employee left his employment at DDA in April 1992, and now works for a private nonprofit provider entity (the Provider) that operates in the mid-Atlantic area. The agency wants to employ the Former Employee on a limited basis, while he maintains his private employment, to provide it with transitional consulting and monitoring services in connection with the ongoing Justice Department and other monitoring activities as to Rosewood and Great Oaks. In order to evaluate the applicability of the Ethics Law to this specific issue raised by the agency, it is necessary to consider at least on a limited basis the facts and legal issues relating to the Former Employee's general employment situation as to the Provider. The Former Employee is the Regional Director of the Provider's Maryland branch, a direct provider of services to developmentally disabled and retarded persons being released from institutions, to individuals from out-of-State, and to persons in the community who are in crisis.

The Provider has several contracts with State agencies, including one agreement for over $2.5 million with the DDA. This contract is the State's standard Human Service Agreement for Developmentally Disabled, developed pursuant to the State's procurement Regulations in COMAR Title 21. The Department advises that the Provider responded to an RFP in 1990 intended in part to receive patients being released in connection with the downsizing of Rosewood. Under this process, based on a review of patient profiles, a provider submits a proposal detailing its programs and proposing to take on particular clients. The proposal is reviewed and evaluated in accordance with procurement review criteria. Price negotiations are undertaken with qualifying providers resulting in a contract at a certain price to handle particular cases. This Provider is described by the Department as a national organization with a residential and a day care program, that has a reputation for being able to deal with mentally retarded or developmentally disabled persons that have behavioral problems.

According to the Department, this particular procurement was conducted in DDA's Central Regional Office, primarily by the Deputy Regional Director and a staff person serving as the contract monitor. Though the Former Employee is identified as having been the Central Maryland Regional Director as well as Director for Rosewood, the Department and the legal advisor indicate that he was not significantly involved in this contract process. The Former Employee advises that his focus was on the facility, and he was not an evaluator on the proposal or otherwise involved in the procurement process by which the Provider was selected as a vendor. He also states that he was not as a facility director personally involved in decisions or actions as to particular residents. The Former Employee indicates that he was interested in leaving State service and contacted the Provider in February to inquire as to whether there were any positions in the organization. He indicates that he advised the DDA Director in early March that he was considering employment with the Provider and left DDA in mid-April. He indicates that he did not have any other dealings or affiliation with the Provider prior to this time, and made it a point not to begin any activities with it until after termination of his State service.1

A preliminary issue to be considered here involves application of the post-employment provisions of the Ethics Law to his current employment with the Provider as a general matter. This prohibition appears in §3-103(b) of the Law, and provides that a former official or employee may not assist or represent a party other than the State for compensation in a matter involving the State if the matter is one in which the individual participated significantly while an employee. The section does not as a general matter prohibit a person from going to work for an entity that has dealings with one's former agency or from appearing back before one's prior agency, even directly on behalf of one's new employer. It does, however, significantly limit a former employee's ability to assist a new employer (either through appearance or otherwise) as to matters in which the individual participated significantly while an employee.

The Former Employee indicates that he is involved as Director of the Region in administering the Provider's implementation of its contractual obligations to the DDA under its contract. As noted, these obligations include services to clients released from Rosewood during the period of the Former Employee's service as Director of Rosewood and of the Central Maryland Region. Also, these are continuing and long-term matters, subject presumably to the continuing monitoring and funding review of the agency. As the Director responsible for all of the activities of the Provider, the Former Employee's duties in directing his current employer's implementation of these agreements would be viewed as "assisting" the Provider. To the extent that these are contract matters in which he significantly participated while he was an employee, the §3-103(b) prohibition could be read to prohibit his involvement in them at all.

The questions most often presented in post-employment situations relate to the identification of the "matter" involved, and a determination of whether it is the same matter in which the individual participated while an employee. We have advised that the term matter generally has the same meaning as defined in the Ethics Code that preceded the Ethics Law, as including "any contract, claim, case or other such particular matter". "Participate" has been read to include acting or failing to act in one's official capacity, personally and substantially, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise. The contract between DDA and the Provider for the provision of services to the identified clients would in our view be a "matter" for purposes of this section. The Former Employee, as well as the Department and its legal advisor, have indicated, however, that because of the problems presented to the agency, his focus was on the provision of services to continuing residents of these two facilities. Both he and the DDA Director indicate that he was not significantly involved in negotiating contracts for placement of persons with private providers such as his current employer, either in connection with the negotiation or conclusion of the contract itself or in decisions as to particular individuals to be released.

Based on these facts asserted by the Former Employee and the Department, we would conclude that his current employment with the Provider would not be inconsistent with the post-employment provisions of §3-103(b) of the Law.2 The remaining issue is whether his affiliation with the agency as a consultant would be limited by application of this provision of the Law. The programs implemented by the Former Employee dealt with facilities management and organization, involving training efforts directed at staff psychologists and others and focused on specific issues and deficiencies identified by the federal authorities. The Director and the agency legal counsel both indicate that as to Rosewood these programs are more or less in place and are resulting in significant improvement at the facility. There have been no licensing issues recently and the Department of Justice CRIPA investigation may be resolved in the near future. As to Great Oaks, currently there are no pending licensing issues, the DOJ investigation is active but not in a formal status, and the MDLC litigation is now pending before the federal court.

The agency advises, however, that though significant progress has been made, it may take some time to recruit permanent directors for these facilities, and that positive resolution of these legal and administrative matters depends upon continued successful implementation of the programs designed by the Former Employee for these facilities. The agency therefore wants to employ the Former Employee to assist it on a short-term basis. Pending advice from the Ethics Commission the agency has not specifically defined this relationship, though the Director has indicated that she would anticipate his serving as a department monitor, to evaluate the current systems that are in place and advise the Secretary on any required revisions. She describes it as a "relatively short-term consultative relationship." Agency Counsel also indicates that the Former Employee's continued services on a time-limited consultant basis would greatly assist the agency in addressing the CRIPA issues specified by DOJ. The agency ethics liaison, who is the spokesman for the Secretary in ethics matters, has also advised in writing that the agency fully supports the request made by DDA and affirms its belief in the importance of the Former Employee's relationship as a consultant to the Department.

This question also presents potential issues under the post-employment provision of §3-103(b) of the Ethics Law. This section, however, deals with a former employee's assistance or representation of a "party other than the State." We have in the past concluded, where an individual was personally providing services directly to the State, and not a "party other than the State," that the limitations of §3-103(b) did not bar the relationship. In the situation here, the Former Employee would be providing consulting services directly to his former agency in connection with continuing implementation of programs that he initiated while at the agency. He is, however, already currently employed by another entity, one that has continuing contractual relationships with the agency. We recognize that the Former Employee would apparently be a separate vendor to the State for these activities. Nevertheless, in our view serious issues would be raised under §3-103(b) if the Former Employee were to contract with the agency as a vendor.

Though the Former Employee's activities in managing Great Oaks and Rosewood could be viewed as general program development, from the discussion of all the people involved here, it seems as if the Former Employee's program development was directed at specific substantive issues presented in the context of these matters. He would be working as a former employee on those same matters, thus meeting the criteria of §3-103(b). We believe, therefore, that the only legally permissible way to accomplish the Department's purpose is for the Former Employee to serve as a contractual employee of the Department, hired through the State personnel process and subject to its controls. As long as this service is part-time and on a short-term basis as set forth in prior opinions, we advise the agency that its employment of the Former Employee would not be barred by the post-employment provision of §3-103(b).3 We caution, however, that this opinion is based on the facts presented. It should be noted that, even though as a matter of law these activities may be allowed, the proposed dual relationships to be held by the Former Employee present the possibility for issues that should be monitored closely by the Department.

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 We note here that §3-101 of the Ethics Law would have applied to prohibit the Former Employee from participating in any matter involving as a party an entity with which he had an arrangement regarding future employment. The former employees functions in connection with the DDA/Provider contract are described as limited, and he and the Department also indicate that he had no dealings with the Provider as part of his official duties during the period from February to the conclusion of his DDA employment.

2 The Former Employee and the agency, of course, should be aware that participation does not necessarily include only final and formal determinations regarding a matter. If as a supervisor he directed others to take action, or approved approaches or proposed actions by others, then he could be viewed as having participated.

3 The Department and the Former Employee should note that pursuant to §1-201(bb) of the Law a contractual employee who serves full-time for a period of 6 months or greater, could, depending on his duties, be determined to be a public official subject to financial disclosure and other provisions of the Law. Under these circumstances, his affiliation with the Provider would be prohibited.