92.13

OPINION NO. 92-13

Commission advice has been requested as to whether a social worker at a State correctional facility (the Facility) may establish and operate a group home designed to house and otherwise assist newly released prisoners from this Facility or other Division of Correction facilities. We advise the Requestor and her agency that this activity as described would result in employment and interest relationships with an entity under the authority of and otherwise involved with her agency inconsistent with §3-103(a)(1) of the Public Ethics Law, and that an exception cannot be applied to allow the activity.

The Requestor provides direct social services to inmates in the Facility. Though she could potentially interact with any of the inmates, a significant portion of her work is focused on those with special problems, particularly involving inmates with HIV. She conducts some group and individual counseling in addictions and social work, including counseling in impulse control to help inmates to adjust to the facility, and supervises student interns who are assigned to the facility from area graduate and undergraduate colleges, and who carry out the same functions as the Requestor under her direction. She also prepares prerelease plans for inmates being discharged from the facility, primarily for those with medical or mental health problems.

This request involves the Requestor's interest, with her spouse, in establishing a sheltered housing program for persons being released from DOC facilities. They have purchased a large farm property, which they personally own and would rent to an incorporated nonprofit entity (the Corporation) for use in the project. According to the Requestor, the program would not involve any State or public funding, but is intended to be supported by donations from religious and trust fund organizations and other private sources. Residents affiliating with the Corporation would be provided housing and related assistance as well as job search and support assistance. The Requestor's spouse would be a day-time manager and would assist in job search, transportation and other ways. Facility personnel would not necessarily be making referrals to the Corporation. However, since an inmate's housing decision needs to be made prior to release, some interaction with DOC would be necessary by the Corporation or its representatives, including information distribution in the system to make classification workers aware of the availability of the housing, and admission to a correctional facility of the screening committee or its representative to interview or otherwise follow up with an inmate applying for admission.

Many of those who leave correctional facilities do so in mandatory release status. This status reflects that the person, because of credits earned for good time, job performance, or educational achievement, may be released before serving his original term or its full completion. These persons, though no longer confined by DOC, continue under the authority of DPSC (through the Division of Parole and Probation) until the last day of their original sentence. Inmates are expected to have made arrangements for housing and employment, and the release certificate includes this information. On the day after release, the person must report to a Parole and Probation field agent (identified based on the address included in the release certificate). A home and employment plan is confirmed at this time, and any conditions are defined. These may include job requirements, prohibitions against handling firearms, using drugs or hanging around felons, and also requirements regarding housing. Compliance with these conditions is monitored by Parole and Probation until the sentence is completed, and managers of housing and related facilities (as well as employees of the Department) who identify violations of the release conditions are required to report them to the probation agent.

Section 3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law) prohibits and official or employee from being employed by or having a financial interest in an entity that contracts with or is subject to the authority of their agency. The Requestor and her spouse are the sole organizers of the Corporation, are currently its only two board members, and have total control of its management and fund use. Moreover, a significant expense of the program would be expected to be the payment of rent, which would be paid to the couple as owners of the property. The Requestor's spouse will receive some payment for his services in connection with the provision of employment and other assistance to residents. The Requestor will provide social work and other services to the Corporation and serves as an officer and organizer of the Corporation.

Under all of these circumstances, we conclude that the Requestor has an employment and interest affiliation with the Corporation that would be prohibited by §3-103(a) if the entity has contractual or authority relationships with her Department (subsection (a)(1)(i)), or if her employment relationship with it would present issues under the impairment provisions of the section (subsection (a)(1)(ii)). Though we believe, given the potential for interaction between the Corporation and the DPSC, that there are substantial concerns presented here under the impairment provision of subsection (a)(1)(ii), we conclude that this request is resolved by application of the strict employment provisions of subsection (a)(1)(i), in view of the authority relationships that exist here. First, the entity would need to have access to the DOC distribution system in order to advise classification workers of the availability of the housing at the Corporation. Also, the screening group or its representatives would need to have access to a DOC facility in order to interview a potential resident while he was still an inmate. Additionally, the residents and their activities while there would be subject to the guidelines and supervision of the Requestor's Department.

We considered a similar situation involving this Department in our Opinion No. 82-10. In that situation, where a DPSC employee wanted to provide tax services in DOC prerelease units, we concluded that the relationship to the agency resulting from the need to announce the service availability through the agency, and have agency approval to be on-site, was an authority relationship under §3-103(a). The activity was prohibited. We believe that the same principle applies here and this section must be applied to prohibit the Requestor's proposed undertaking. Further, in our view, an exception cannot be applied to allow the activity.

Exception is permitted under §3-103(a) where, pursuant to Commission regulations, it is determined that the employment would not present a conflict of interest or appearance of conflict. The implementing regulations (COMAR 19A.02.01) generally include guidelines for determining whether the relationships of the private activities and official duties and programs are sufficiently remote that a conflict or appearance of conflict is viewed as unlikely. In addition to criteria dealing with a person's State duties, the regulations also address whether the private employment involves the entity's dealings with the agency. In the situation here, the Requestor, though she would not necessarily in her official duties directly deal with the Corporation, would be a manager and significantly involved in the activities of the Corporation and its residents. These individuals would still have some accountability to her agency, and in her role with an entity that is part of the person's home and employment plan, she would have responsibilities to the agency as well.

We have not, pursuant to our regulatory exception criteria, allowed exceptions where the individuals had substantive and functional duties in the private activity that related to their agency and its interaction with the private entity, unless the individual's agency supported the exception and confirmed for us that allowing it would not result in a conflict or appearance of conflict that would impair the agency's credibility in carrying out its functions. In this situation the Division of Correction and the Department object to having an employee within the Facility involved in this type of undertaking. They are concerned that the Requestor would be serving the releasees and at the same time have an obligation to report failure by the individual to comply with the conditions of his release; she would be serving former prisoners likely to have continuing relationships and communications with individuals remaining in the prison and involved with her in her official duties; and she would be dealing on the outside with persons who might have private information about her that would find its way into the Facility itself.

In addition to the strict application of the review criteria and the agency's view, we believe that the proposed activity could not be excepted because of other general issues potentially presented under the other sections of the Law. For example, the Requestor works in the Facility with other staff who deal directly with inmates on a regular basis, and who are involved in working with those who could be potential residents with the Corporation. Though she has not directly marketed the Corporation in the Facility, her involvement is well known in the Facility and classification workers have inquired about the availability of beds for inmates. The Requestor herself works potentially with all of the inmates in the Facility and thus could be involved with the same population that would be possible residents of the Corporation. Any of these situations could give rise to concerns or appearances of conflict under the participation, prestige and information provisions of §§3-101, 3-104, and 3-107 of the Law.

Under all of these circumstances, we conclude, and so advise the Requestor and her agency that her affiliation with the Corporation as proposed would be prohibited if the Corporation is to include as residents inmates who have been released from facilities of the DOC or otherwise under its authority, and that exception could not be applied to permit the relationship.

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

Date: December 1, 1992