An advisory opinion has been requested as to whether a professor of biochemistry at the University of Maryland School of Medicine may serve on the boards of two private entities, the Friends Medical Science Research Center, and the National Alliance for the Mentally Ill. We advise that these affiliations are allowable provided that certain monitoring and other constraints are followed.
The Requestor is a full-time tenured professor at the University of Maryland School of Medicine, part of the University of Maryland at Baltimore (UMAB). He is in the biochemistry department. He has a limited course teaching load, and also works with students in clinical conferences and advising, with approximately 100 student contacts in a year. His primary function is to read, write and publish in his field, which is primarily ethics in science. He conducts lectures in this field and is the editor of a scholarly journal. He conducts conferences and has served as an expert in this field in a variety of situations, including working with the legislature in developing the mental health parity law. His position is academic; he has no administrative duties in connection with his UMAB employment.
Friends Medical Science Research Center is an organization headquartered in Baltimore that supports and administers grant research in a variety of scientific fields. It is a nonprofit 501(c)(3) organization established about 25 years ago with an initial focus on treatment of the mentally ill. It receives and administers grant funds from foundations, the National Institutes of Health and other fund sources, and sponsors research primarily for clinical physicians not necessarily affiliated with a university. It also has engaged in philanthropic giving to provide funds for programs to provide direct services.
Some of the research sponsored by Friends has historically been related to the mentally ill. The Requestor indicates that there has in recent years been discussion regarding possible abuses of the mentally ill as the subjects of research. He has been involved in this in research and writing and it was for this reason he was invited to serve on the Friends Board. He indicates that he is involved in this connection in developing a three-day conference that would bring together researchers, ethicists, families of the mentally ill and others engaged in this discussion. This conference is to be funded by Friends, which will retain management control of this conference. The Requestor will put the program together, but will not be compensated or have any involvement in the financial aspects of the conference.
According to the UMAB counsel, the institution has no grants or other dealings with Friends. We are advised by the Friends Executive Director that it had no dealings with the University, but that there is some potential for future relationships. For example, the Requestor indicates that the organization could possibly make a contribution or grant to the University to set up a Center for Biomedical Ethics. The Requestor advises that he would not apply for or be involved in any way in grant applications to Friends.
The National Alliance for the Mentally Ill (NAMI) is a national organization with state affiliates, whose mission is defined in its Bylaws as "the eradication of mental illnesses and ... the improvement of the quality of life of those whose lives are affected by these diseases." Its activities are described as including coordination of state and local groups, performing education and public information activities, monitoring health care facilities, promoting new and remedial legislation, and promoting community support programs. It is also involved in homeless issues as they impact on the mentally ill. The organization has a paid staff that does most of the active work to implement the organization's program.
According to the Requestor, who has served on the Board of the local Maryland affiliate, NAMI is primarily an advocacy group. It has many members throughout the United States, but is not a grant-making agency. Also, we are advised that NAMI's focus is on national policy, where it lobbies for more federal funds to support research in mental illness, and with regard to mental health issues in the current health care debate in the Congress. Neither NAMI nor its Maryland affiliate are registered lobbyists in Maryland, and neither appears on the Ethics Commission's doing business list. The organization's focus is apparently on broad policy issues rather than on any particular facility, university entity, or program. The Board meets 4 times a year to consider policy issues, membership and administrative matters, and fundraising, and the Requestor anticipates little activity between meetings.
According to the UMAB Counsel, there are no current grant relationships between the University and NAMI. In the past there were a few small ($10,000 to 20,000 range) grants to Department of Psychiatry faculty. This, however, has been some time ago and there are currently no outstanding grant relationships. Also, there was some possibility that the advocacy role of the organization might involve it in interaction with the University in its activities regarding the mentally ill. According to both the Counsel and the Requestor, however, NAMI's advocacy activities seem not to be directed to particular facilities and programs. Its current focus is on federal informed consent policy, an issue that is a matter of public debate likely to be resolved in a forum well away from the campus.
The Public Ethics Law (Article 40A, Annotated Code of Maryland, the Ethics Law) prohibits employees from being employed by or having an interest in an entity that contracts with or is subject to the authority of an individual or the individual's agency (§3-103(a)(1)(i)), and further bars any other employment that would impair an individual's impartiality or independence of judgment (§3-103(a)(1)(ii)). Consistent with past Commission opinions, we advise that the Requestor's service on the boards of these two organizations results in an employment relationship even though it is not compensated, as the boards are the managing and policy-making bodies of their respective organizations. (See, for example, Opinions No. 91-15, No. 90-16, and No. 89-16.)
As the facts are presented here, however, neither Friends nor NAMI currently have direct contractual relationships with the University. We therefore believe that this situation presents issues under the employment impairment provisions of §3-103(a)(1)(ii). In interpreting and applying this provision of the Law, we have tended to view it as a complement to the strict employment prohibition in §3-103(a)(1)(i), applying to limit affiliations where there are clear relationships between the private entity and the employee's agency and program responsibilities to raise concerns about conflict or potential for conflict of interest.
Our review of this situation suggests that there are no grant relationships and other potential interactions between these organizations and the University. The Friends conference is to be handled solely within the Friends organization, with no involvement by a UMAB affiliated foundation, and apparently there are no grants between NAMI and the University. Nor do the organization's advocacy activities appear to have involved them in interaction with the University. Under the circumstances, and considering the favorable position taken by the Dean of the Medical School, these affiliations would appear not to be barred by the Ethics Law's employment impairment provision, as there is no sufficient current basis to believe that these activities would be seen to impact on the content of the writings and technical assistance the Requestor performs at the University.
We therefore advise the Requestor and his agency that, based on the facts as we currently understand them, this service is not prohibited. We assume however, that the Requestor is careful in maintaining the safeguards that he advises he has undertaken in connection with his activities, including:
1) abstention from voting or other participation in any matters on behalf of either of these entities that involve the UMAB or the University of Maryland System;
2) full annual disclosure of his activities to his department chair;
3) nonparticipation in his University capacity on any matters that involve either of these two organizations; and
4) nonacceptance of any bonuses or other compensation from either organization in connection with his service on these Boards.
Further, we believe that some additional care must be taken if Requestor is to ensure compliance with the Ethics Law and University policy. We are advised, for example, that the concurrence by the Dean of the Medical School in this service is based on the assumption that affiliation by the Requestor with the organizations would not limit others at the school from applying for research grants. We therefore advise that, in addition to the constraints identified by the Requestor, he should take whatever steps are necessary with each entity to ensure that he can monitor its activities to be aware of any potential grants or other interactions anticipated with the University. He should also continue to be aware that if grant or contractual relationships develop between these organizations and the University, or if advocacy activities bring either into any significant interaction with the University, then further review would be necessary, and resignation possibly required.
Mark C. Medairy, Jr., Chairman
Michael L. May
Robert J. Romadka
April E. Sepulveda
Date: September 28, 1994