96.07

OPINION NO. 96-07

A request has been received from the Department of Human Resources as to whether Child Protective Services workers in a local Department of Social Services (DSS) may have secondary employment with the local Circuit Court as visitation facilitators in domestic relations/custody cases. After a review of all the circumstances of the program, including submissions from the agency and the Court, we advise that this secondary employment as described would be barred by the employment and other provisions of the Public Ethics Law.

This request is presented as a general program matter that currently involves two particular individuals who work in the Services Division of a county Department of Social Services. One is a Social Work Associate IV who currently serves as the screener in the Protective Service Intake Unit, though her general background and duty functions are as a protective services worker. Her MS-22 describes her duties as investigating and assessing situations where there has been a report of child abuse or neglect. The position involves decision making regarding whether a child should remain in a particular environment and provision of services to families to correct existing problems. The position, in addition to work directly with a family, may involve "participation as a witness in court, and involvement in case preparation and presentations for court masters, judges, State's Attorney's personnel and other legal professionals." The other individual is a Social Worker II assigned to the Department's Child Advocacy Center. She is one of 3 social workers that are part of a team including law enforcement personnel and representatives of the State's Attorney's Office, whose function is the investigation, assessment and protection of the child, therapeutic intervention, and prosecution of child sex abuse. Her job includes provision of crisis counseling, referral to physicians and to other intra-agency services, serving as an advocate for the child, and actions for the protection of the child, including seeking court assistance.

Both of these individuals work for the local court system as facilitators in a visitation program developed several years ago to respond to concerns about situations where a non-custodial parent or relative has problems in exercising visitation privileges in custody cases relating to divorce or domestic violence orders. The idea is to have a neutral, but experienced, person participate in facilitating the visits, both assisting in bringing the visit about and providing reports to the judge regarding the factual circumstances of a particular situation. After informal coordination with the local DSS, participants from the DSS staff were recruited to be on the list of facilitators for the visitation program. Currently there are about a dozen facilitators who receive a total of 15—20 referrals per year. Two (previously 3) of the 12 on the list are DSS employees, in essence competing with private professionals in the area for these assignments. The facilitators are appointed by the court to work directly with the individual families in implementing a visitation order, and report back to the court. The order specifies a number of visits before a report back to the court from the facilitator is required. This report would provide information to the judge which would be the basis for extending, ending or otherwise modifying the visitation order. Apparently these are frequently written reports though court appearance to provide oral testimony is also quite possible.

The Circuit Court in this County has 5 judges, all of whom sit on all kinds of cases. This includes divorce, criminal cases (including child abuse), civil matters in excess of $20,000, cases involving child neglect (CINA cases), petitions for termination of parental rights, and appeals from administrative agencies and the District Court. The Court includes a juvenile master who hears most of the CINA and juvenile matters, though any of the 5 judges could be assigned a juvenile case that goes to the court itself. Judges and court personnel thus do have dealings with DSS personnel on a more or less regular basis. In particular, they receive reports in CINA cases, deal with DSS workers in petitions for termination of parental rights, and hear criminal cases involving child abuse. Though we are advised that most visitation situations do not involve any suggestion of abuse or neglect of the child, on occasions where a child abuse or other situation results in a family being involved with both the court and the DSS, the Court and the agency have established procedures to avoid any dual assignment or involvement by these individuals, and agency personnel believe that this has worked, generally without incident.

This request involves application of §15-502(b) of the Ethics Law, which bars individuals from being employed by an entity that contracts with or is under the authority of their agency or an agency with which they are affiliated (subsection (b)(1)), or from having any other employment that would impair their impartiality or independence of judgment (subsection (b)(2)). In our view this situation presents clear concerns under the impairment provision of subsection (b)(2), and is therefore prohibited by this section,1 given the relationship between the Court and the DSS and the potential for involvement by the employees with the same judicial and private legal personnel in both affiliations. More particularly, as we have expressed concern in prior advice regarding application of this provision,2 the secondary employment here is in the same geographical area as the primary State employment; it involves the same population as the DSS duties (where Court clients could become agency clients); and it entails secondary employment interaction with individuals (both private and through the Court) with whom the employees are expected to interact regularly in the context of their official duties.

The agency and Court representatives have suggested that in fact given the nature of the cases in the two situations there is actually little overlap and that this is dealt with by a strict requirement that the individuals receive no assignments in either relationship that involve a family dealing with the other agency. We have carefully reviewed materials provided by the agency and the Court that document these restrictions. Nevertheless, we continue to be concerned that these individuals' private employment with the Court system and personnel with which their agency program interacts so significantly results in an impairment that is intended to be prohibited by the Law. Both the Court visitation and the DSS child protection programs involve important and sensitive issues that impact on the lives and economic interests of citizens. The Ethics Law mandates that such programs should not have to deal with potential concerns presented where employees in one program have economic relationships or personal financial interests with the other entity.

Moreover, we do not believe that efforts to draw very technical lines between or within programs, or to reassign work or agency clients in order to permit secondary employment is appropriate. We are also concerned that the goals of the Ethics Law are not met when reliance is placed a very technical description of an individual's duties at a particular moment in time in order to allow secondary employment that would bring an individual into contact with others in State programs and institutions that have significant interactions with their agency program and functions. Considering the nature of the interaction between the agency and the Court, there are also questions presented here under the participation and prestige provisions of the Law (§§15-501 and 15-506), given the potential for selection of these individuals for court work based on their agency's ongoing dealings with the Court, as well as the potential for participation issues as to matters that may be referred between the agency and the Court.

Under all of these circumstances, we believe that this type of affiliation presents the kinds of impairment and inconsistent employment issues that are intended to be addressed by the Ethics Law. We therefore advise the agency, the Court and the individual employees that this employment is inconsistent with the employment and other provisions of the Law.

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

Date: August 7, 1996

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1 The Court has indicated that these individuals are retained as independent contractors compensated on an hourly rate, and are not employees of the Court. They would therefore be viewed under the Ethics Law as vendors of services through a private consulting entity, and subject to the strict prohibition of subsection 15-502(b)(1). This relationship, as well as the fact that the individuals provide personal services directly to the Court, however, also brings them within the more general impairment limitations of subsection 15-502(b)(2). We believe there is a basis for concluding that the strict prohibition applies because the Court is an agency with which these individuals are affiliated, given the close working relationship between the DSS and the Court in connection with the very program in which these individuals work. Nevertheless, we do not decide this issue in connection with this advice, as we are convinced under the circumstances that the question presented here is clearly resolved by application of the impairment provisions of subsection (b)(2).

2 See, for example, Opinions No. 85-1, No. 85-22, No. 86-14, and No. 87-15.