93.06

OPINION NO. 93-6

An opinion has been requested as to whether a Probation Agent (the Agent) in the Division of Parole and Probation (DPSC) may have a private clinical social work practice that accepts clients who are in the criminal justice system as well as offenders under the supervision of his Division. 1 We advise that this individual may continue his general private practice, but may have criminal justice related clients only within the substantial constraints set forth below.

The Agent here currently works in one of the Division's Baltimore City Offices, where a separation is retained between parole and probation supervision. His caseload consists solely of persons placed on probation by a court, subject to court-ordered conditions; he has no parolee clients. He has a "standard" caseload, which involves less restrictive supervision, and may include up to 150 active cases for supervision. The caseload includes persons who have committed a variety of criminal offenses. Cases are assigned to agents on a random basis as received by a central field office covering Baltimore City, and the Agent's cases are limited to offenders with addresses in zip codes covered by his particular Office. The Agent is one of 11 probation agents in his unit, and of 33 in his office. He has no supervisory responsibilities.

As a general matter probation agents do not carry cases that only involve drunk driving, as most drunk driver offenders are supervised through the Division's Drunk Driver Monitoring Program (DDMP). According to the agency, this is an intensive program whose focus is on abstention and compliance with alcohol education and treatment programs. A convicted drunk driver may be in a treatment program prior to trial and continuation/completion of the program may be a condition of probation. Where pretrial services are not the case, an offender is evaluated by the appropriate local health department and placed in either a social drinking (6-week) program or a problem drinker (26-week) program. An offender may be included in a health department program if space is available within the proper time-frame or may receive treatment/education from a private provider. Follow up of offenders in DDMP includes reports from the providers as well as personal reporting by the offender. Violations of no drinking provisions can result in the offender being taken back to court. Providers (whether private or health department) submit reports regarding the status of the offender in the program, and apparently there is continuing (usually written) interaction between the providers and the DDMP monitors.

This request involves application of the Public Ethics Law (Article 40A, Annotated Code of Maryland, the Ethics Law) to the Agent's private clinical social work practice, which he established about 6 years ago. It is a health practice which he says is a "non-physician medical provider," and through which he conducts group, individual and family therapy sessions. The Agent has provided information reflecting his qualifications and accreditation in this field. The Agent indicates that his practice involves approximately 100 clients per year, with about 30—40 self-referrals and the remainder from a variety of sources. For example, he advises that he is a provider under the Medicare and Medicaid programs, on the visiting staff at a local hospital, a preferred provider for Blue Cross/Blue Shield and other insurance programs, a provider under MVA's Alcohol Education Program, a provider for Baltimore County and City Health Departments, a provider under Employee Assistance Programs of several entities (for example the Post Office and the Social Security Administration), and under several other health related programs.

The Agent also receives referrals from attorneys engaged in criminal defense matters, and indicates that clients in the criminal justice area are a significant part of the practice. These clients may be persons who are on probation from a court which includes as a condition that they receive counseling or other treatment. This probation, as to general criminal cases, may involve supervision by other agents in the Agent's agency, or may involve drinking driving offenders monitored by DDMP. According to the Agent, his referrals, given the nature of his affiliations, may come from any geographical area, though apparently they are predominantly from the Baltimore metropolitan area. He says that he does not have very many clients from Baltimore City, or from the area covered by his Office.

As to clients who are drinking driving offenders, these referrals may be from attorneys who may suggest a defendant begin a drunk driving program directly after an arrest. In some cases the treatment is completed prior to trial. If the person is convicted, then the existing treatment is presented as part of the sentencing process. If the program is not completed at the time of conviction, continuation of the treatment can be included as a condition of probation. According to the Agent's attorney, in these situations the counselor (such as the Agent) would not appear before the court, though his reports and other documentation would be submitted to the court and identify him. Interaction with the Division of Parole and Probation in these kinds of cases would involve submission of regular reports regarding the status of a client whose treatment is a condition of probation. Also, providers are required to notify the referring authority when a person is discharged from treatment for any reason, including non-appearance or non-compliance with probation conditions. The Agent indicates that he meets these requirements and that his reporting is mandated under State and federal requirements.

The Agent has a private practice of which he is the sole owner, a practice which, consistent with prior opinions, must be viewed as an entity with which he has an employment and interest relationship for purposes of the Public Ethics Law. The request therefore presents issues primarily under the provisions of § 3-103(a) and 3-104 of the Law. Section 3-103(a) prohibits an employee from being employed by or having an interest in an entity that contracts with or is under the authority of his agency (subsection (a)(1)(i)), and also bars any other employment relationship that would impair the individual's impartiality or independence of judgment (subsection (a)(1)(ii)). Section 3-104 of the Law prohibits the use of the prestige of one's office for one's own economic gain or that of another. Interpreting and applying these employment and prestige provisions of the Law, we have issued many opinions advising individuals employed in a variety of professional capacities in State government regarding their ability to engage in private practice. These opinions have been further complemented by even more numerous informal opinion letters providing guidance and defining the parameters required to be met by employees in private practice situations.

Beginning with Opinion No. 81-45, we have generally taken the view that private practices are not absolutely barred by the Ethics Law. They are, however, subject to constraints designed to avoid relationships between the practice and the individual's agency programs that would present a conflict of interest or the appearance of conflict. In Opinion No. 81-45, involving a dentist in a local health department, a private practice was approved with the understanding that it did not include clients referred from or otherwise involved with his agency. This requirement that practices avoid agency clients has been consistently applied in subsequent opinions. For example:

- in No. 82-46, a dentist was advised he could not affiliate with a practice that accepted referrals from his agency;

- in No. 83-20, an attorney in Juvenile Services was allowed to have a private practice as long as she took no clients involved in the juvenile justice system;

- No. 84-31 advised that a Vocational Rehabilitation counselor could have a deaf interpreter service as long as her services were not marketed to or used by her colleagues in the agency;

- guidance was provided in No. 85-1 that a RICA psychiatric nurse's private practice could not involve any clients referred from or otherwise affiliated with the agency;

- in No. 85-4, a lawyer with the Subsequent Injury Fund was told he could not represent clients before the Workers' Compensation Commission, as this would involve his dealing with attorneys and others that he dealt with in his official capacity;

- in No. 87-8 a DAGR veterinarian was permitted a private veterinary lab only if he did not serve veterinarians that were in the same area as that served by his State lab;

- No. 88-21 advised a State's Attorney that his private law practice could not include criminal cases;

- in No. 89-1, a DNR Natural Resources Manager was permitted a private consulting practice only if he avoided any work with persons or entities involved with his agency; and

- in No. 91-6, an adoption caseworker in Cecil County was permitted to have a private practice doing adoption home studies but only if they were foreign adoptions that did not involve activity within her own county and its courts.

We have also addressed these kinds of concerns, both as to the drinking driver program and public safety and correctional programs in two other opinions. In Opinion No. 87-16, an addiction counselor in a county health department was advised that he could have a private counseling practice only if the private clients did not involve any health department referrals or driving while intoxicated matters. We were particularly concerned in that situation about the overlapping of populations served by the individual and his agency, in view of the fact that the State's DWI enforcement program is a sensitive public process that over a period of time tends to involve many of the same defendants, lawyers, counselors and judges.

The other opinion (No. 92-13) involved an employee of the DPSC's Division of Correction who was advised that she could not establish a housing and support program for recently released offenders who continued under the supervision of the Department's parole and probation program. This decision reflected concerns arising from the fact that the individual would be required, as a provider of services to an ex-offender, to interact directly with her agency, and to report violation of parole conditions to persons employed in the agency and with whom she would be expected to deal in connection with her official position. All of these formal and informal reviews have reflected the Commission's interpretation of the impairment and prestige provisions of § 3-103(a)(1(ii) and 3-104, as to some extent complementary to the strict employment provision of § 3- 103(a)(1)(i). They represent a determination to deal with situations where there are relationships between the outside employment and a person's agency's program. In general, the import of the Law has been to avoid situations where the population served by the private practice and the agency would overlap.

The Agent here has a private practice that includes providing counseling and other clinical social work services to law violator clients who have a variety of relationships with his agency and with people who deal with his agency. To the extent that any clients are within the supervision of his agency, the practice is inconsistent with the Law as set out in past Commission opinions indicating that private practices should not include clients that are involved with the individual's agency. In this situation probation clients are under very substantial legally mandated agency supervision. It should be expected that agents are vigilantly functioning to carry out this mission as to all supervisees and that they would not have private economic interests that could distract from this goal. We have considered whether there are facts in this situation that would lead to a different conclusion here. Agency officials in the Division indicate that they believe that employees with private practices should not have clients who are under the supervision of the Division, and this view is supported by the Department of Public Safety and Correctional Services.

The Agent's practice does involve clients referred by employers, insurance companies or others who have no connection whatever with his agency and whose need for counseling services does not relate to any involvement with the criminal justice system. As to these clients, we advise the Agent that the practice would be allowed consistent with prior opinions relating to private practices. A second category of clients includes self-referrals and those who are referred primarily by attorneys and who are or expect to be charged with a drinking driver violation that would bring them within the criminal justice system. Although these individuals generally would have no existing direct relationship to the Division, they would nevertheless be represented by attorneys who may be representing other clients who are subject to supervision by the Division and by the Agent or his unit. They would also be expected to be appearing in court possibly before the same judges before which the Agent appears (either personally or through his official reports) in the context of his official duties as a probation agent. Under these circumstances we advise the Agent that his private practice would be permitted as to drinking driving cases only if this activity meets the following conditions designed to avoid prestige, employment or confidential information aspects of the Law:

- any pretrial services and diagnostic services may not entail review by the agency, be used to rebut the agency, or be presented to the judge in the county or city where the Agent works or other counties where he would have likely official contact with the judge;

- services may not be to lawyers or result from referrals from lawyers that the Agent deals with in his official capacity;

- pretrial cases may involve only drinking driver defendants rather than defendants in other types of criminal cases;

- pretrial cases may not be handled where the defendant is in a pretrial services program monitored by the agency;

- post-trial drinking driver cases may be retained only if the patient is not placed under the jurisdiction of the agency; and

- it is understood that if issues arise as to these types of approved situations, further review and restriction may be required. (Every effort should be made to avoid situations where misuse of prestige of position could be at issue.)

The third type of client currently seen by the Agent in his private practice includes individuals who are under the supervision or authority of his agency, apparently primarily as a result of a conviction of a drinking driver or other offense, where counseling or related treatment may be a condition of probation. The Agent's Department, through a representative of the Secretary as well as those more directly involved in management of the parole and probation program, has expressed serious concerns about an agent providing private services to persons under the Division's direct supervision, and we concur in this view. Notwithstanding the information provided by the Agent regarding the nature of his official duties and the constraints that he applies in the context of his practice, we believe that the approaches we have developed and consistently applied in prior similar situations must continue to apply here to prohibit the Agent from seeing in his private practice any clients that are under the direct supervisory authority of any unit of the Division of Parole and Probation.

This conclusion is based on the same kinds of concerns that have been evident in prior opinions, and is further supported by the very sensitive and important role of the Division in ensuring public safety and maintaining public confidence in its ability to monitor those under its authority. In our view, the Agent's private treatment of persons within DDMP supervision would involve a service that is a direct and substantial part of a supervision program monitored by his Division. His private work thus could involve his direct interaction and responsibility to his agency and to other employees with whom he may deal in the context of his State employment. It could, for example, put the employees in the position of having to deal in their jobs with a fellow employee. Inclusion of these types of clients in the private practice would also involve the Agent's interaction with private attorneys and courts that may also be dealing with him in his official responsibilities.

We recognize that the Agent has a clinical practice that he believes can be operated without conflict. Nevertheless, he is subject to the requirements of the Public Ethics Law that require limitations on secondary employment and other activities designed to avoid both apparent and actual conflicts of interest, and to ensure the integrity and credibility of the agency's functions. In our view, the limits to his private practice described in this opinion reflect the reasonable approach that has been applied to other employees throughout State government for many years, and which is consistent with the legislative intention of the Ethics Law that actions of State agencies be objective and impartial and not improperly impacted by the private economic interests of agency employees.

Mark C. Medairy, Jr., Chairman
   Shirley P. Hill
   Michael L. May
   Mary M. Thompson

Date: June 28, 1993

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1 Ethics Commission staff records reflect telephone advice to the Agent at the time that he started the practice that ethics issues were presented and that he should request formal advisory opinion from the Commission. An opinion was not requested, although agency approval was given at the regional level as part of a grievance process. The Ethics Commission was not aware of or involved in this process. We consider this situation in the advisory opinion rather than the enforcement process on the assumption that the Agent will take appropriate action to conform his practice to be consistent with advice provided here.