94.04

OPINION NO. 94-4

A request has been presented as to whether an exception can be granted to allow an addictions counselor with the Howard County Health Department to work as an addictions counselor with a local crisis intervention center (the Center) that receives substantial financial support from her agency. We advise that given the relationships between the private employer and the Requestor's agency and agency program an exception cannot be allowed to permit continuation of this affiliation.

The Requestor is employed as an Addictions Counselor in the Howard County Health Department (the Department)1. She works in the Adolescent Services Unit of the County's Addictions Services Center, where her duties involve providing assessment, treatment and other related services to chemically dependent adolescent clients and their families. She has a caseload of about 25 clients for whom she performs assessments and develops and implements treatment plans. Her duties also involve her in developing and maintaining relationships with community resources and providing outreach, prevention and education services to other professions, special interest groups, and the general public regarding chemical dependency as it relates to individuals, families, and the community as a whole.

The part-time secondary employment here involves a private non-profit Center that has several programs, including a homeless shelter in the Requestor's County. According to its Executive Director, the Center has three funding relationships with the Department of Health and Mental Hygiene, through the local Department's Community Mental Health Center. These include funding for general public crisis intervention services to provide emergency after hours coverage when the Community Mental Health Center is not open; funding for a Statewide Youth Crisis Hotline; and funds for a case manager at the Center's shelter for residents who have major psychiatric disorders. The Requestor works as an addictions counselor with the Center. Her primary duties involve providing direct clinical services to shelter residents, including evaluation, counseling, and possibly referral to other addiction treatment services. Her duties may therefore involve addiction evaluation of clients with psychiatric disorders covered by the Center's contract with her agency. She may also see clients served under the agency contract in education groups that she conducts at the shelter. According to the Center's Executive Director and position descriptions of her private employment, the Requestor may also provide consultation on drug and alcohol issues to staff of the shelter and the Hotline (whose Department funding is substantial).

The strict employment prohibition in §3-103(a)(1)(i) of the Public Ethics Law (Article 40A, §3-103(a)(1)(i), Annotated Code of Maryland, the Ethics Law) prohibits employees from having secondary employment with entities that contract with their agency. Since the Center does contract with the Requestor's agency, her employment with it would be barred unless an exception can be allowed. Exception is permitted pursuant to language in §3-103(a) that the prohibition applies unless it is determined, pursuant to Commission regulations, that the particular situation presents no conflict of interest or appearance of conflict. The Commission's regulations implementing the employment portion of this provision (COMAR 19A.02.01) define the circumstances where the relationships between an employee's official duties or her agency and the private employment are so remote that the possibility of a conflict or appearance of conflict is unlikely.

The criteria include findings relating to an employee's dealings with her private employer in the context of her State duties, as well as consideration of how her private activities relate to her agency program or her own duties. They also include an evaluation of the specific employment circumstances to ensure that they do not otherwise create a conflict of interest or appearance of conflict, and consider the possibility of issues arising under other provisions of the Law. We have issued several opinions applying these regulations in situations involving employees in local units of State agencies. We have allowed exception, based on careful examination of the facts, in situations where an employee's private employment was in another county, where the employee had no duties for either employer that impacted on the other, or where the private employer's dealings with the employee's agency were with the headquarters agency or another unit of her local department2.

The Requestor here has requested an exception to permit her to continue her employment with the Center. She has provided substantial information regarding the nature of her duties at the Center and their relationship to her duties at the Addictions Services Center. She points out that her focus in the Health Department is on adolescents and that the focus of her private activity is adults. She states that she would be unlikely to make referrals through her State job to the Center, though both she and the Executive Director state that shelter clients may be and often are referred to her State agency. Both the Requestor and her private supervisor acknowledge that there are relationships between her private and State duties, and have indicated that she may rely on her knowledge of agency operations and personnel to assist her private employer in carrying out its mission. We recognize that the Respondent and her private employer in acknowledging these interactions may believe in good faith that her dual employment has a positive impact on the relationships between the two entities, and their view that this benefits the clients served by these agencies.

This private employment, however, clearly comes within the prohibition established by the Legislature in the employment limitations of the Ethics Law. In our view, while the Legislature establishes addictions control and related programs to serve Maryland citizens, it has also in the Ethics Law defined a clear public policy regarding private activities of State employees that must be balanced with program goals. The employment provisions of the Law previously cited, as well as the prestige and information provisions of the Law (§§3-104 and 3-107) reflect an understanding that though State agencies and private providers may have similar ultimate program goals, their economic and other interests are not always identical. Government agencies have fiscal responsibilities in dealing with public monies, as well as obligations to effectively monitor their contractors' services to clients and to operate in a fair and even-handed way to all vendors and clients served by them and the agency. The Ethics Law purpose of ensuring the integrity of government agency programs reflects the clear public policy that agencies must not be compromised in carrying out these obligations by the dual relationships of agency employees hired by contractors, particularly in the same or related program areas.

In furtherance of this policy, the Law strictly prohibits these relationships, barring employees from working for agency contractors and contractors from benefiting in their agency relationships through hiring agency employees. Our authority to allow exceptions (established at our request by the General Assembly) was not intended to significantly depart from this public policy, or to allow secondary employment where there are close relationships, or based on the kinds of programmatic arguments presented by the Requestor and her private employer. Rather, the exception language in the Law was intended to permit secondary employment with an agency contractor only where the relationships between the contractor and the employee's agency and duties are so clearly remote that the possibility for conflict or the appearance of conflict is unlikely.

We are unable to make that determination in this situation. We note, for example, that there are issues presented under several of our regulatory exception criteria, given the location of the Center and its shelter in the Requestor's County, its apparent actual and potential interaction with her agency and her own unit, and the fact that both her State agency and the Center serve the same population within the same geographical area. It also appears from the information provided that the Requestor performs at least some functions for the Center that assist it in implementation of its agency contracts. It is recognized by both the Requestor and the Executive Director that the Center has benefited in its dealings with the agency by the Requestor's presence as its employee, and the Requestor acknowledges that her knowledge of the agency programs and personnel has enabled her to assist her private employer in its interactions with the agency. Also, an issue has arisen in the past where a client she was seeing at the shelter was also being seen by a colleague in her Health Department unit. Though this situation was apparently resolved, given that shelter clients are referred to the Addictions Services Center, the potential for future situations presenting more serious problems seems to be very real.

In summary, it is clear to us in this situation that the relationships here are simply not remote. Moreover, we have been advised by the Department of Health and Mental Hygiene that the agency believes that there is a potential for conflict that would impair the integrity of the agency in carrying out its mission, and that it does not support allowance of an exception in this situation. Under all of these circumstances, we are unable to conclude that the statutory exception criteria that there be no conflict or appearance of conflict have been met here. We therefore advise the Requestor and her agency that her continued employment with the Center is prohibited by §3-103(a) of the Ethics Law and that an exception cannot be applied to overcome this prohibition.

Mark C. Medairy, Jr., Chairman
   Michael L. May
   Robert J. Romadka

Date: July 7, 1994

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1 For purposes of the Public Ethics Law, this is a State entity affiliated with the Department of Health and Mental Hygiene.

2 See, for example, Opinion No. 89-6. Opinions published at COMAR Title 19A.