A request has been presented as to whether a Program Coordinator in the Alcohol and Drug Abuse Administration (ADAA) may serve as a member of the Maryland Addiction Counselor Certification Board (MACCB). We believe this service results in an employment relationship by the Requestor with the MACCB which is barred by the employment prohibition of §3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland).
The Requestor works in the Family, Adolescent and Childrens' program of ADAA as a program coordinator whose duties include primarily the provision of technical assistance to addiction programs throughout the State that service children and adolescents. This includes programs managed by the 23 counties and Baltimore City, each of which has a program for dealing specifically with addictions problems presented in this age group. Most of these programs are State programs implemented by State employees in some unit of a local health department. The Requestor indicates that her service with regard to these programs includes working directly with program directors and counselors, providing assistance in program development, in dealing with specific cases, and in issues relating to adolescent development generally. Her other duties include monitoring contracts with 6 private providers that provide up to 60 days of residential addictions treatment for adolescents. This involves general review of program management and effectiveness in a quality assurance type role, as well as fiscal monitoring to ensure funds are spent consistently with the contract authorization. She also writes grant requests and conducts conferences and workshops around the State on various specialized subjects involved in dealing with addictions treatment programs directed at children and adolescents.
The MACCB is a private nonprofit entity organized for the purpose of establishing and implementing a credentialing program for alcohol and drug addictions counselors. The Board consists of 24 individuals who all serve as volunteers. It has 5 executive officers elected by the members of the Board, who perform management and administrative functions. The remaining members serve on working committees that perform the various functions related to the Board's certification process. The Board maintains a registry and supporting records of certified counselors in the State and maintains and enforces an International Code of Ethics. It is a member of the International Counselor's Reciprocity Consortium, which enables Maryland counselors' certification to be recognized in other states. The organization apparently receives no State or federal funding, operating solely based on certification fees paid by applicants.
The Board's certification process includes a testing and evaluation process which is handled on the Board's behalf by a contractual entity, Columbia Assessment Services, Inc., in North Carolina. This entity administers the written portion of a national test developed by the International Consortium. The MACCB is responsible for administering the oral evaluation part of the test process. The Requestor indicates that her role with the Board has been to serve as a trainer for individuals that make up the panels that administer this oral evaluation. She indicates she became a member by applying to serve and being selected by the existing Board when a vacancy occurred. Members must be certified counselors themselves, and according to the Requestor there is currently a waiting list of individuals who want to serve. She says that no one receives any compensation, though they may be reimbursed for expenses incurred in participating in meetings or conferences out-of-State.
The counselor certification process carried out by the Board is not one that is currently duplicated in State government. Addictions programs are required to be certified by the State through the DHMH Division of Licensing and Certification. The program certification regulations include staffing requirements that reflect the nature of the service provided. Though most have requirements for counselors, none require the counselors to be certified. Rather, the general provision is that the program have a required number of staff members who are certified alcohol counselors or "have the level of training and experience equivalent to that required for certification as an alcohol counselor." These certification or equivalent standards are applied to persons working for the State in addictions programs, as well as those in grant-funded programs and in private for-profit programs. State job specifications have the same certification or equivalent requirements. The agency seems not to have established any formal reliance on the MACCB in particular, though in practice it has relied on it substantially in defining certification standards. Apparently the agency has considered but rejected State certification of counselors, partly for management and fiscal reasons, but also in part because of the existence of MACCB as a private certification entity. According to ADAA staff, most counselors engaged in clinical treatment work are certified by MACCB.
There are 350 certified addictions programs in this State, with about 120 funded by ADAA and therefore subject to close program monitoring. These would include the adolescent programs with which the Requestor works. Monitoring of the staff aspects of the programs entails reviewing job duties, titles, etc. within the programs and determining if the person is functioning within the job specifications reflected in the education and experience requirements for the position. The ADAA has a training program, OETAS, that develops courses and programs that are available for State counselors that are involved in addictions treatment programs. These training programs are reviewed and considered by the MACCB and are used by MACCB, along with private courses and programs, as criteria for certification requirements. An agency employee involved in OETAS serves as the liaison between the ADAA and MACCB primarily in connection with development of training courses and programs that would qualify a person for certification. This individual functions as a non-voting member of the Board in part to keep track of the developing certification policies and requirements, and in part to be a source of information as to the training activities of the Department.1 The Requestor is a certified addictions counselor and supervisor who has served with the MACCB since before her State employment. She was selected for the Board as a private individual based on her status as a certified counselor and does not serve in any way as a State representative.
The Ethics Law in §3-103(a)(1) prohibits employees from being employed by an entity that contracts with or is under the authority of their agency (subsection (a)(1)(i)), and from having any other employment that would impair their impartiality or independence of judgment (subsection (a)(1)(ii)). As an initial matter we believe that the Requestor's service as a Board member must be viewed as employment under this provision. We have generally said that being a volunteer member of an organization would not necessarily be considered as employment, but have treated service on a management or operational board as employment for purposes of §3-103(a), even if it is not compensated. Though the Requestor is a volunteer and this is a working Board, in our view, it functions very like the managing board of private provider and other entities, and her service as a member (even though not an officer) of MACCB constitutes the kind of management and operational relationship that we have consistently seen as employment.2 The question is whether this is employment that is prohibited by either the strict prohibition or employment impairment provisions of §3-103(a) of the Law.
As the situation is currently described, it would appear that the issue is presented primarily under the impairment language of subsection (a)(1)(ii) of §3-103, although other sections of the Law could be at issue depending upon the specific facts that might arise. The MACCB does not appear to have a formal affiliation or contract with the Department or the Requestor's State program. There are no contracts, and the agency appears to exercise no direct regulatory authority over the Board or its activities. Also, the certification function performed by the Board seems not to be specifically required as an element of any agency program or activity, though the certification appears to be an important part of the agency program. We thus conclude that there is no technical application of the strict employment prohibition of §3-103(a)(1)(i). The impairment provision of subsection (a)(1)(ii) of §3-103, however, was added to the Law in part to deal with this type of situation. It was included in amendments to the Law in 1981 partly based on the Commission's recommendation that authority be added to limit relationships that present clear and serious conflicts or appearance of conflict issues, even though the strict contractual and regulatory relationships may not be present.
In our view, the relationships between the MACCB and the ADAA and DHMH present these kinds of concerns. The agency has sufficient interest and involvement in the Board's work to have an official liaison to work with the Board. Despite the absence of formal reference to MACCB certification in program licensing and certification, it is clear that the agency places substantial reliance on the MACCB and its certification activities in licensing and monitoring programs. Apparently there is continuing discussion within the agency of what role if any it should play in certifying individual counselors, and MACCB would appear to be involved in and potentially impacted by the agency's position in this regard. Also, there are common interests revolving around the training and educational opportunities that are made available by the agency and relied upon by the Board, most State counselors as well as many in grant-funded or private programs are certified, and the programs and staff are monitored by the Department. The Requestor herself has some monitoring responsibilities and in connection with these and other responsibilities must necessarily interact regularly with counselors who are potential or past clients of the MACCB. To some extent, her role relates to staff qualifications and credentialing, which could relate to the activities of the MACCB.
Under all of these circumstances, we believe that the situation presents the kinds of concerns intended to be addressed by the impairment provision of §3-103(a)(1)(ii) of the Ethics Law. We therefore advise the Requestor that her continued service with the MACCB is inconsistent with the requirements of the Law and should be discontinued.
Mark C. Medairy, Jr., Chairman
Michael L. May
Robert J. Romadka
Date: June 2, 1994
1 Note that this type of activity has been allowed as long as it is consistent with guidelines included in Commission opinions. See, for example, No. 89-9. Opinions published in COMAR Title 19A.
2 See, for example, Opinions No. 90-16, No. 91-15, No. 89-16, No. 83-13, and No. 80-4.