95.08

Opinion No. 95-8

An opinion has been requested as to whether a physician (the Employee) in the Office of Licensing and Certification Programs, Department of Health and Mental Hygiene (DHMH), may engage in substantial activities with a professional society. We advise that this affiliation and activity is not as currently described an employment relationship that is prohibited by the Ethics Law, but that care must be taken by the Employee to ensure that her dealings with the professional association are consistent with the participation, prestige and information provisions of the Law.

The Office of Licensing and Certification is the unit in DHMH that is responsible for oversight of the more than 8000 health care facilities in the State. This includes hospitals, nursing homes, HMO's, major medical equipment, domiciliary care homes, residential service agencies, laboratories, and in all as many as 50 categories of activities. This unit develops regulations and implements them through compliance monitoring both on-site and through records review. The unit exercises the agency's sanction authority, requiring corrections when there are problems, and has the authority to revoke a license or shut down a facility if there is not compliance. Termination of public funding can also be a sanction for noncompliance.

The Employee is one of only two physicians in the Office. Though there seems to be some disagreement between the Employee and the Department as to the precise nature of the Employee's duties, it appears that her primary function involves surveying facilities for compliance purposes. This includes, for example, hospitals, HMO's, birthing centers, and ambulatory care facilities. According to the Employee, she does on-site reviews of a facility to ensure that it is operating in compliance with federal and State regulations, as to personnel, equipment and general operating requirements for the function it is performing. Her functions include record reviews and direct interaction with facility staff. She also does complaint investigations responding to particular patient concerns, and has been involved in compliance reviews as to major medical equipment. The agency has also suggested her job duties should include facilities other than hospitals, defining her functions in terms of consultation and inspection, and including more general programmatic functions such as conferring with her supervisor on program objectives, interpreting regulations for health facilities, participating in workshops to develop regulations, and participating in training and educational programs with regulated industry.

The question presented here arises from the Employee's significant involvement in the activities of the Maryland Medical and Chirurgical Faculty (Med-Chi). This is an entity that functions as the private association of physicians and surgeons in the State. It has in the past had and currently has a substantial concern with the State licensing and regulating function. It has relationships with the Board of Physician Quality Assurance and its Peer Review Committee by statute has substantial activities in the regulatory and enforcement process relating to this profession. Med-Chi has several registered lobbyists and has been very active in a broad spectrum of medical and health issues being considered in the legislature. It currently has four registrants. In the 1993-94 year its registrants reported total compensation and expenditures of over $180,000, ranking the organization 4th highest in lobbying expenditures for this lobbying year. The organization in some instances takes legislative positions consistent with the agency, though it has also been substantially in disagreement with agency positions.

The Employee is involved in several Med-Chi Committees, including the Committees on Legislation, Public Health, Ethics, Public Relations, and Women in Medicine, and the Physicians/Lawyers/Teachers partnership. She says that she participates in all of these committees, though some are more active than others. The Employee's supervisor and other agency managers indicate that though they generally do not oppose all of this activity, they do have particular concerns with her involvement in Med-Chi's Legislative Committee. The Employee's supervisor indicates that her Office is the State's primary health regulator, and is significantly involved in continuing and very controversial legislative activity. She says there are always bills being considered or issues being reviewed, and that this activity tends to be in the area of hospitals, HMO's and ambulatory care programs that are within the Employee's purview. She has referred to a few legislative situations during the 1995 Legislative Session which involved substantial interaction between the Office and Med-Chi, some of which involved general areas within the Employee's subject expertise. The supervisor is concerned that the Employee is involved on a day-to-day basis with the inner workings of this regulatory office, and has access to information and may participate in discussions that relate to policy decisions that impact on the medical society, and indicates that she has some hesitation about assigning the Employee to some matters that would entail significant policy involvement.

We do not as a general matter believe that the Employee's activities with Med-Chi constitute employment that is strictly prohibited as a matter of law. Section 3-103(a) of the Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law) prohibits an official or employee from being employed by or having an interest in an entity that contracts with their agency or is subject to its authority (subsection (a)(1)(i)), and also bars any other employment that would impair an individual's impartiality or independence of judgment (subsection (a)(1)(ii)). We have in prior opinions considered affiliations with professional and other nonprofit associations and organizations in a variety of contexts involving both regular employees and board and commission members, and as a general matter have advised that service on the operating boards of such entities constitutes an employment relationship even if it is not compensated, given the nature of the fiduciary duty held by officers of such entities.

As a general matter, however, we have advised that volunteer service as a member of an organization, but not an officer, is allowed within constraints defined by other provisions of the Law. In Opinion No. 89-2, in particular, we considered Med-Chi, and identified certain of its positions as employment positions (opinions published at COMAR, Title 19A). We included Board membership and other Officer positions, but advised that serving with a Med-Chi committee or with a local society did not as a general matter result in an employment relationship. Consistent with this existing approach, we advise the Employee that her Med- Chi committee involvement as currently described, involving a purely voluntary non-officer role, would not in the absence of some new facts not presented here be viewed as an employment relationship prohibited by the strict employment provisions of §3- 103(a) of the Ethics Law.

Even though the Employee's Med-Chi affiliations are not viewed as employment covered by the prohibitions of §3-103(a), however, she needs to be aware of the continuing application of the conduct provisions of §§3-104 (prestige of office) and 3-107 (use of information). These are provisions that generally regulate behavior where relationships are otherwise allowed, and have generally not been viewed by the Commission as absolutely prohibiting a relationship. We have generally not assumed that persons with the opportunity would improperly use their official position or official confidential information to advance private interests or the interests of private entities. The situation here, however, requires the application of particular care, given the questions of fact and of perception as to whether these provisions are or can be complied with by the Employee, given the nature of her Office's functions and the extent of its interaction with matters of concern to Med-Chi.

The Employee must take care, for example, to avoid active involvement in Med-Chi legislative policy development as to matters within her Office's jurisdiction, and to avoid being a DHMH resource or information source for the Committee as to either DHMH policy, information or personnel; to avoid direct involvement with the Legislature or legislative officials (either through testimony or otherwise) as to legislative or policy matters of interest to her Office; and not to use official time, or Office equipment or personnel in connection with her Med-Chi affiliation. Also, if her job functions in the future include assignment to work on particular projects or matters that involve Med-Chi or issues likely to involve controversy between the agency and the medical association, then her continued involvement with the association's Legislative Committee will require further review and possible resignation from the Committee.

In summary, the Employee should understand that though technically not a prohibited employment relationship, given the nature of her Office's regulatory and policy role and its significant interaction with Med-Chi, her involvement with Med-Chi (particularly its Legislative Committee) requires the drawing of a very fine and careful line. She will need to be vigilant in monitoring her activities in order to avoid being in violation of the prestige, information and other provisions of the Ethics Law. She should also be aware, of course, that our advice relates to application of the Ethics Law, and that our opinion does not limit the agency's ability to define personnel management or other limitations necessary to carry out its official mandate.

Mark C. Medairy, Jr., Chairman
    Michael L. May
    Charles O. Monk, II
    Robert J. Romadka
    April E. Sepulveda

Date: June 22, 1995