93.04

OPINION NO. 93-4

An opinion has been requested as to whether an exception can be granted to allow the Administrative Officer of the Board of Morticians (a unit of the Department of Health & Mental Hygiene, DHMH) to enter into contracts with other units of the Department, through her private counseling practice. We advise that exception would not be appropriate given the individual's duties and functions.

The Requestor was recently employed as the Administrative Officer of the Maryland Board of Morticians. This is a Board within the DHMH established pursuant to § 7-201—7-207 of the Health Occupations Article of the Annotated Code of Maryland. It is charged with the duty of establishing standards for the practice of mortuary science and for sanitation and waste disposal in connection with the practice of mortuary science. It licenses funeral directors, funeral establishments, and apprentices, and defines qualifications, examination, and licensing procedures for this process. It has authority to conduct inspections and carry out enforcement functions in connection with its licensing and regulatory responsibilities.

The position of Administrative Officer for the Board is a half-time position advertised in the summer of 1992. The job is to provide administrative support to the Board in carrying out its functions under the law, including managing the examination, licensing and renewal processes, and administration of the enforcement aspects of the law. The Administrative Officer will also be responsible for the agenda and other aspects of the Board's meetings, and will serve as its liaison to the Legislature and other State administrative agencies. The person in this position will have frequent contact with the public and with public and private organizations at the local and national level. The position also involves supervision of an investigator shared with two other licensing boards, and includes major responsibilities for legislative, fiscal and other aspects of the Board's activities.

The Requestor is a certified professional counselor who applied for this position and was selected during December 1992. She is a former DHMH employee and according to the Board's Chairman, during the job selection process she advised the Board of this and indicated that she is currently an independent contractor who had or was in the process of acquiring contracts with other Departmental units. The issues presented here arise from this affiliation with a private non-incorporated 2-person counseling practice (the Practice). Apparently established about 4 years ago, this is a health provider practice in which the two partners do individual, group, couple, and family counseling. It is not a Medicaid provider though it does have a Medicare provider number. Business tends to be generated primarily through word-of-mouth or recommendations (particularly of prior clients), though the practice has recently been listed as a provider with Mental Health Options, the entity that recently undertook to provide mental health services to State employees.

According to the Requestor, the Practice's primary contractual work consists of three contracts with the Department of Health & Mental Hygiene. The total value is about $30,000, which represents about 50 percent of the Practice's gross income. Of the three contracts, all of which are small procurements, two are with the Department's Local and Family Health Administration. The first involves the Healthy Generations Project. This is a four-year grant from the federal Bureau of Maternal and Child Health Resources, in its fourth and final year. The current contract is to analyze data and write the evaluation and end-of-grant summary. According to the contract manager, the request for proposals was issued in August. There were three proposals submitted and evaluated through the Department's procurement system, and the contract was signed after the first of the year. It is to be completed in April 1993.

The other contract with the Local and Family Health Administration is part of another grant to the Administration from the federal Bureau of Maternal and Child Health Resources, and involves the development and analysis of a data base relating to the comprehensive primary health care system for children. The grant is in its first year and involves two separate contracts, each of about $10,000, one of which is the contract between the Practice and the Administration. This contract, which involves data collection through conducting focus group meetings with medical assistance providers and consumers in the area of child health care, was bid in November-December 1992, was to start on January 30, 1993, and be completed by September 1993.

The Practice's third contract with the Department is with the AIDS Administration, and involves provision of health education and risk reduction services targeting minority youth within the Baltimore Metropolitan area who engage in high risk behaviors which place them at risk for HIV infection. This is also a $10,000 contract bid in October-November 1992. It entails conducting a survey on behalf of the agency's center for AIDS-Related Education Services, and evaluation of referral and intervention strategies. Apparently the primary service under the contract is operational and clinical. The contract was signed on December 14, 1992; it was to begin on January 1, 1993 and continue through December 31, 1993.

The Requestor is, by virtue of being hired by the Board of Morticians, a regular part-time employee of the Department of Health and Mental Hygiene. She is also affiliated with the Practice, a private entity that contracts directly with the Department. §3-103(a)(1)(i) of the Public Ethics Law (Article 40A, §3-103(a)(1)(i), Annotated Code of Maryland, the Ethics Law) bars an employee from having any employment or interest relationship with an entity that contracts with one's agency. Given the Practice's contractual dealings with DHMH, the Requestor's employment and interest relationships with it would be prohibited by §3-103(a)(1)(i) unless an exception is allowed.

Exception from the prohibition is possible under the proviso in the section that the prohibition applies except as provided by regulation of the Commission where there is no conflict of interest or appearance of conflict. The Commission regulations (published at COMAR 19A.02.01 and .02) include a series of guideline criteria designed to evaluate the relationships between an individual's official duties and proposed private activities. They consider, for example, whether the individual's duties involve direct impact on the private entity and whether the individual's unit or supervisor directly impact on the entity. The criteria also look to the nature of the person's functions in the private activity, considering, for example, whether the private work would entail responsibility for implementing the agency contract or complying with agency regulations. Account is also taken of the general circumstances and the potential application of other provisions of the Law (for example, the § 3-104 prohibition against the use of prestige of office for personal gain). Generally, exception is allowed only where we are convinced that the relationships are sufficiently remote to conclude that the possibility of conflict or the appearance of conflict is unlikely.

We recognize that the licensing boards in the DHMH have a certain amount of autonomy within the Department. The Board of Morticians, has, however, historically had dealings and interactions with the health agencies on a variety of issues, including for example, issues relating to the handling by morticians of HIV-infected bodies. Further, as the Board's Administrative Officer, the Requestor will have a very visible high profile position in dealing with other units in State government, including the Legislature, the Department of Budget and Fiscal Planning, and other Health Department offices dealing with matters of concern to morticians. Moreover, significant issues are presented under the criteria dealing with the Requestor's functions on behalf of the Practice. She would be the person directly negotiating with and dealing with the Department in carrying out the contracts, and will be receiving compensation through the Practice directly funded by the State contracts. Also, the value of the contracts to the Practice exceeds both the gross income and absolute value criteria of 19A.02.02.03I. The DHMH has not requested an exception, but has indicated through its ethics coordinator that it would like the existing contracts to be completed for programmatic reasons.

Under all of these circumstances, we are unable to conclude that these relationships are sufficiently remote to warrant allowance of an exception in this situation. We therefore advise the Requestor that the Practice should not solicit or enter into contracts with the Department while she is employed in her current position. In regard to the existing contracts, which were largely undertaken prior to her employment by the Board, we advise that these contracts may be continued until their completion, assuming that the Requestor takes care not to deal with them on Board time or otherwise in connection with her official Board position. Follow-on efforts to these particular contracts or new contracts with the Health Department are, however, prohibited.

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

Date: April 14, 1993