93.11

OPINION NO. 93-11

An advisory opinion has been requested as to whether an exception can be applied to allow an employee (the Employee) in a County Department of Social Services (DSS) to serve as a foster parent in the County. We advise based on the facts of this situation, particularly the Employee's duties in the foster care program, that exception would not be appropriate to permit this relationship.

This request is presented by the Department of Human Resources (DHR) on behalf of a Human Services Worker in a County DSS, in one of two foster care units in the agency's Child Welfare Division. According to the DSS Director, the agency is responsible for children committed to its care by the court as a result of action initiated through the Child Protective Services program where the child is subject to abuse or neglect. The foster care program in the County includes one worker whose function is to recruit foster homes, conduct home studies and make recommendations for foster home licensing in accordance with regulations set forth in COMAR 07.02.13.07. The second aspect of the foster care program involves working with the child and the child's family to achieve a permanent solution to the child's problems. This process operates pursuant to foster care regulations in COMAR 07.02.11.

Provision of support to the foster family is the third aspect of the foster care program. This aspect entails the monitoring and annual reapproval portions of the regulations under which all approved homes are reevaluated annually to determine continuing compliance with the foster family home regulations. Foster family support services also includes provision or arrangement for both pre-service and continuing training opportunities for the foster family. Also included in this part of the foster care program is general support liaison with the family. This liaison and other interaction involves general issues and is not necessarily specific to the child. The foster parents and the foster parent worker may, of course, work with the child and the child's worker as to specific issues that arise in the context of a specific placement.

According to the Director, of the approximately 145 employees in the Department, 10 are assigned to two foster care units. One person works half-time doing the foster home recruitment and case studies and most of the remainder are social workers who work directly with the child and the child's family. The Employee handles the foster family part of the program. Her caseload consists solely of foster families. She handles the annual reconsiderations and provides the pre-service and continuing training for foster families. She also indicates that she serves as a support person for the family, may attend foster parents association meetings, may refer the family to community resources as to identified problems, and may be an advocate for the family with the caseworker. She says that her role is to be supportive of the foster parents' needs and responsive to their concerns, though as to a specific child there may be shared responsibility with the child's caseworker.

The Employee and her spouse are both in the human service field, and approached the possibility of caring for foster children in September 1992. She says that the question was raised about the fact that she worked for the Department. Despite the existence and availability of previous Commission opinions dealing with provider relationships, an official in Headquarters of the Social Services Administration advised that there was no agency-wide policy regarding this and that it was a matter for local determination. Based on this the application was submitted and the homestudy referred to another county for action and initial licensing. According to the Director, foster home monitoring of the Employee's home is handled by another worker in the other foster care unit who reports to a different supervisor. The Employee and her spouse will be required to meet the other continuing requirements, including the requirements for continuing training. Apparently she would satisfy the training requirement by virtue of her receiving training in connection her employment.

This request presents issues under the outside employment and interest prohibitions of §3-103(a)(1)(i) of the Public Ethics Law (Article 40A, Annotated Code of Maryland, the Ethics Law), and potentially raises issues under other sections of the Law. Section 3-103(a)(1)(i) prohibits an employee from being employed by or having an interest in an entity that is subject to her authority or that of her agency or that has or is negotiating a contract with her agency. In interpreting this provision in situations involving provider relationships we have generally said that being a provider, even as an individual, results in the existence of an entity with which the individual has both an employment and interest relationship as contemplated in §3-103(a). This entity has both a regulatory and contractual relationship with the State agency for which it serves as a provider, and this relationship has generally been found to be prohibited by the strict language of this section unless an exception is allowed as set forth in the section and implemented in Commission regulations.

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." This language was added to the Law partly in response to a Commission recommendation that authority be included to clarify that relationships that would otherwise technically be within the prohibition would not be barred where the affiliation was so clearly remote from the individual's agency program and duties that the possibility of conflict or the appearance of conflict was remote.

The approach of the regulations (COMAR 19A.02) 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 deal, for example, with whether the employee's duties significantly impact on the private entity, whether she is in the unit of her agency or has supervisory relationships with individuals that impact on the private entity, whether she has private management responsibilities relating to the private entity's compliance with agency regulations, and whether the private compensation is directly funded under the contract. The regulations 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 some circumstances where a relationship exists, exception may still be allowed, if the employing agency advises that the credibility of the agency mission will not be impaired.

We have issued several opinions involving provider situations and implementing the statutory and regulatory provisions. For example, in Opinion No. 84-9 a physician employed in the Medical Assistance Compliance Administration was advised that his private Medical Assistance practice was inconsistent with §3-103(a)(1)(i) and that this bar could not be overcome by the exception regulations. In No. 84-12 In-Home Aides with DHR were advised that they could not have individual provider contracts with their local department to provide in-home services to clients. In the situation here, the Employee is a foster parent provider to her local department, and would be viewed as having an employment and interest relationship with an entity that is subject to significant monitoring and regulatory review by her agency. She would receive funding pursuant to statutory and regulatory programs in circumstances that the Commission has in the past said result in a tacit contractual type of relationship. This is a relationship that would thus be prohibited by the strict prohibition of §3-103(a)(1)(i) unless an exception is allowed.

In considering this situation in view of the regulatory criteria, we note that there are many issues presented under several of the criteria. The Employee is in the foster care unit that handles her private foster parent activity, and has a second line supervisor who also supervises those who monitor her. She also would be directly involved in carrying out any contractual obligations and complying with regulatory requirements, and would directly receive funding from the agency. Although the Employee would not be assigned her own case, this is an agency accommodation that essentially limits her availability as an employee. Also, we have generally not allowed disqualification to serve as a cure of a violation under §3-103(a). Additionally, part of her duties involve dealing with foster parent groups (which would include her and her spouse) and providing training to foster parents.

The agency has supported the granting of an exception in this situation, noting the difficulty in recruiting foster parents, and relying on the local department's anticipated close monitoring of the situation. We believe, however, that an exception is not warranted by the circumstances here. The criteria are drafted as guidelines that generally describe the potential issues to be taken into account in making the statutory finding for exception. We have tended in applying the criteria to look for genuine remoteness in relationships, and have been reluctant to grant an exception where there are several potential questions under the criteria. Also, given the Employee's responsibilities in the foster care program and her interaction with other employees responsible for monitoring her home, we believe that there could be impairment, employment, or prestige issues under §§3-103(a)(1)(ii), 3-105 and 3-104 of the Law.

Under all of the circumstances presented here we cannot conclude that there is sufficient remoteness between the private and official duties to support the statutory finding that there is no conflict of interest or appearance of conflict. We therefore advise the Employee and the agency that this activity is prohibited by the Ethics Law and that an exception cannot be applied to overcome this prohibition.

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

Date: August 18, 1993