An opinion has been requested as to whether an exception can be applied to allow an employee in a county Department of Social Services (DSS) to have private part-time employment with a contractor (the Contractor) developing major Department of Human Resources (DHR or the Department) automation programs. Based on all of the information provided we advise that the circumstances here do not support the conclusion that there is no conflict or appearance of conflict, and that an exception therefore cannot be allowed.
This request involves an employee (the Employee) who currently works in the DSS as a supervisor in the Adult Services Division. Her duties include initiating and conducting case conferences regarding the clinical needs of a home care client. She makes eligibility determinations and develops care plans for clients and directly supervises in-house staff who provide services to clients. Her unit is one of several in the DSS that provide these services. She also works with private providers who provide in-home services through contracts with the DSS, and is involved in planning, coordination and implementation of training for the in-home aide staff. She serves on agency committees and task forces as needed.
In the recent past the Employee has been involved in the Department's process of automating its information management system. As a result of past supervisory duties relating to data entry in the Child Protective Service area, she became involved with the agency's Automated Master File (AMF). When issues arose in interfacing this system with a larger system being developed (in response to federal requirements) for computer management of Income Maintenance information (the AIMS system), the Employee was made a part of the team. She eventually became the Director of AMF and worked with contractors and staff in getting these systems started. Subsequently in connection with a reassignment to the County DSS as Director of its Assessment Center, she worked on the development of a child welfare module to automate the child welfare system in that County. In connection with the work on automating the child welfare system, she indicates that she became acquainted with many of the agency's data information staff, many of whom subsequently left the Department and several of whom now work for the Contractor.
The Client Automated Resource and Eligibility System (CARES) is the successor to AIMS, being developed in response to a federal mandate, along with the Client Data Base (CDB). The Contractor is the private company that contracts with the Department to develop this automation program. It is also the agency contractor to develop the Child Support Enforcement System programs. In 1992 it received payments from the agency in connection with this work of just under $2 million. The process of implementing CARES throughout the Department (including all of the 24 local departments) entails substantial effort to interface the new programs and data bases with the existing AMF system. To do this a Client Information System Committee was established including Contractor staff, Departmental staff from the Office of Information Management, and local staff who work directly with the systems. The Employee was a part of this team and participated in this committee's work until it was disbanded in April 1993.
The current status of these projects is that the Contractor is working with the Department to begin implementation of CARES in the local departments (including in the Employee's county). The Employee currently works as a social worker supervisor. She says that she prefers to do social work rather than information systems work, and does not anticipate that her future State duties will include involvement in the automation projects. Her supervisor, while he tends to concur in this, is not, however, prepared to say that the Department would not want to call upon her expertise as the system is implemented in her county (this should be done in a year or so.)
The Employee indicates that she was approached by former colleagues in the agency who now work for the Contractor to consider leaving State service and accept full-time employment with the company in connection with its development of automation programs in the services area of automation (such as child welfare). She says that she did not pursue this until Spring of this year, as the conversion committee work was being completed. This request involves her interest in remaining a State employee and undertaking part-time consulting work with the Contractor on a project-by-project basis, primarily in the area of child welfare automation. Apparently, the next major area for automation is in the services area, probably child welfare (including foster care and adoption programs), and the Contractor is submitting proposals to states that are beginning to develop systems in this area. The Employee would assist company staff in this effort, and would also, assuming her time is available, be involved in implementing such efforts in other states, particularly from her viewpoint as a local staff social worker involved in working with such systems.
This request presents issues primarily under the outside employment prohibition of §3-103(a)(1)(i) of the Public Ethics Law (Article 40A, §3-103(a)(1)(i), Annotated Code of Maryland, the Ethics Law). This section prohibits an employee from being employed by an entity that has or is negotiating a contract with her agency. The Commission has in the past advised that for purposes of this section an individual's agency is the cabinet level department with which she is affiliated, which in this situation would be the Department of Human Resources. Since the Contractor is a major contractor to the DHR, the Employee's affiliation with it would come within this section and would be prohibited unless an exception is allowed.
Exception is permitted by the introductory language of §3-103(a), which provides that the prohibition applies "except as permitted by regulation of the Commission where such interest is disclosed or where such employment does not create a conflict of interest or appearance of conflict." Commission regulations implementing this exception are set forth in COMAR 19A.02.01 and 19A.02.02. The approach of the regulations is to establish guidelines for determining whether the relationships between an employee's agency's functions and her private affiliations are so remote that a conflict or appearance of conflict is unlikely. The regulations address the situation both from the standpoint of the individual's agency relationships and functions, and from the aspect of the person's private affiliations and activities. They also provide for the Commission to determine that the general circumstances of the situation do not raise a potential conflict of interest or appearance of conflict.
In the situation here, we believe that there are substantial appearance and other substantive concerns, despite the Employee's current concentration on social work activities and the fact that her work for the Contractor would focus on other states. We are concerned, for example, that the Employee has until the very recent past been significantly involved in agency interaction with the company, and her employment with it follows very closely on this activity. Also, the Contractor's dealings with DHR involve important and substantial agency undertakings to comply with federal requirements. These efforts are continuing and any problems that develop could be exacerbated if it became known that one of the agency's current employees was a private consultant to the Contractor.
Moreover, though the Employee has indicated that she would prefer not to be further involved in agency automation issues, she is an agency resource in this area, and in fact is probably one of the few employees still in the agency who was a part of this program early on. Her current supervisor, though he recognizes there are other people available in this area, is not prepared to concede the possibility of calling on her in connection with future implementation issues. If the Employee were working for the Contractor, however, her availability to assist her Department in the CARES implementation could be severely restricted. It also appears that eventually the DHR will complete automation of the Income Maintenance programs, and will move to development of systems in the child welfare and other services areas. It could in this situation be faced with the requirement to comply with federal mandates for adoption of programs developed in other states but with the assistance of their own employee.
In our view, these circumstances raise appearance concerns that the Law and the regulations are designed to avoid. Given the total circumstances presented here, particularly the significance of the Contractor's dealings with the DHR, we are unable to conclude that the statutory criteria that there be no conflict of interest or appearance of conflict have been satisfied. We therefore advise the Employee and the agency that an exception cannot be applied to allow this proposed employment.
Mark C. Medairy, Jr., Chairman
Shirley P. Hill
Michael L. May
Mary M. Thompson
Date: August 18, 1993