An advisory opinion has been requested by the Department of Human Resources (DHR) as to whether supervisory social workers in the Baltimore City Department of Social Services (BCDSS) may have secondary employment as on-call interviewers with the Baltimore Child Abuse Center, in connection with the entity's collaborative effort with the BCDSS in responding to child abuse allegations. Based on the information provided regarding the relationships of this program to the BCDSS activities, we advise that this proposed outside employment by these individuals would be inconsistent with the employment and other provisions of the Public Ethics Law.

The Family Law Article, Annotated Code of Maryland provides for agency response, investigation, and corrective action in situations of child abuse and neglect in the State. The law provides for reporting of incidents of abuse or neglect, for investigation of any reported incident, and for criminal and administrative action to be taken by social services and law enforcement authorities. One of the aspects of the law is its emphasis on cooperative efforts by the various government agencies involved in the State's child protection program. The law specifically provides that the local DSS, the appropriate law enforcement agencies, the State's Attorney, the child care regulation agency, and the local health officer enter into a written agreement that specifies standard operating procedures for the investigation and prosecution of reported cases of suspected child abuse. In Baltimore City, this cooperative effort was reflected in an agreement between the BCDSS and the State's Attorney that the initial response interview and evaluation would be handled by an entity called the Child Advocacy Network, which was a part of the State's Attorney's Office. The Network operates a facility in downtown Baltimore that provides for availability of a multidisciplinary team including physicians, psychologists, social workers and law enforcement personnel.

Apparently though the Network began as a unit of the State's Attorney's Office, it was subsequently incorporated by the cooperating agencies with a stated purpose of facilitating community support to assist the government agencies and medical personnel in protection of abused children. The Center Board of Trustees, initially including the State's Attorney, the Director of the BCDSS and the local Health Officer, as well as others nominated by the organizing government officials, in its ongoing structure is generally composed of persons nominated by the Board itself. It is funded through grants from the United Way and through case-by-case reimbursement from the Health Department. Support from other agencies is provided primarily by in-kind or personnel support. For example, the Director is an employee of the State's Attorney's Office and her salary primarily paid by that Office. Also, pursuant to agreement between the Center and the BCDSS, a licensed BCDSS social worker is assigned to the Center to conduct interviews. Funding support is also received from private national foundations and federal agencies and the organization's activities include broader functions responsive to the requirements of these funding sources.

According to the Director, initial interviews conducted under this program must be done by licensed professionals in order to be admissible under court rules regarding hearsay testimony. She indicates, however, that the Center currently is able to conduct coordinated interviews only during daytime hours, and child abuse reports received during evenings, weekends and holidays continue to be handled in a rather disjointed fashion, possibly by nonlicensed individuals. To resolve this problem the Director has proposed that the Center employ licensed master's level social workers or other professionals to carry a beeper and be on-call during the extended hours periods. They would compensated $25 a week to be on-call, and $50 if they are called to do an interview. The report would be available for use in court proceedings, and interviewers could be called to testify during regular working hours, though the extent to which this would be necessary is not clear. The Director would like to recruit several master's level social workers from the BCDSS who are licensed and would qualify to provide court testimony.

The Director's interest in recruiting BCDSS staff relates at least in part to their ongoing knowledge and understanding of the process and she acknowledges that she could very likely recruit other professionals to do this interviewing. The agency concurs in this activity, though there is some recognition that special steps would have to be taken to avoid conflicts, given that the individuals likely to be doing the on-call interviewing would also be supervisors of BCDSS case managers involved in follow up investigations and provision of services. Apparently other alternatives for these individuals to undertake this work through the agency have been considered but found not to be feasible.

This request presents issues primarily under the outside employment prohibitions of §15-502(b) of the Ethics Law (State Government Article, §15-502(b), Annotated Code of Maryland, the Ethics Law), which prohibits secondary employment with an entity that contracts with or is subject to the authority of one's agency. In our view this provision applies here to bar this proposed activity by BCDSS staff. Established by government agencies to perform government functions, the Center, based on the information provided, nevertheless seems clearly to function as a private entity. Though currently controlled by government units, its bylaws would not appear to require that it be so controlled in the future. Moreover, it has substantial nongovernment funding sources, which present performance requirements beyond those mandated by the original government organizers. The Center in turn has an agreement with the BCDSS under which the Center undertakes to perform certain functions as an agent of the BCDSS and the other participating agencies. Though this agreement does not involve the transfer of funds, it does involve the provision of staff and related services and mutual undertakings by the parties. We have in the past found that these types of agreements constitute contracts for purposes of the employment restrictions of the Law (see for example, Opinions No. 82-41 and No. 84-2).

Applying these principles, we must conclude that the §15-502 employment prohibition applies to bar these relationships unless an exception can be allowed. Exception may be permitted under this provision if, based on Commission regulations, it is determined that there is no conflict of interest or appearance of conflict. Our exception regulations (COMAR 19A.02.01) consider the relationships of an employee's duties and agency position (including supervisory functions) to the private employer, as well as involvement of the private activities with the individual's agency and program. They are designed to confirm that relationships between an employee's agency program and official duties and the private activity are sufficiently remote that the possibility of conflict is unlikely.

We believe that concerns are presented under the regulatory criteria in this situation, since most of the individuals anticipated to be included are supervisors in the CPS program. They are therefore likely to be involved in supervising the extended hours workers with whom they would be dealing in responding to an on-call situation. Also, they are the likely supervisors of the operational case managers and investigators who will be assigned to conduct the subsequent investigation and work with families and children involved in these situations. These individuals will also be being paid to carry out an agreement that the private employer has with their agency, though the actual funding source is not their agency. Moreover, the Center's continuing role in the matters involved here is dependent in part on the DSS and DHR view of its success in performing agency-required functions. The agency supervisors proposed to be employed by the Center would be expected to have at least some input into evaluating the program and its ability to fulfill agency needs. This situation thus could present issues under the prestige and participation provisions of the Law (§§15-501 and 15-506), considering that these individuals are being recruited largely because of their agency position, and have official duties as supervisors in the same program.

Under all of these circumstances, we cannot conclude that the relationships present here are sufficiently remote to meet the statutory criteria or the regulatory exception guidelines. We therefore advise the agency and the Center that the proposed employment of BCDSS staff as on-call interviewers for the Center would be within the Ethics Law employment prohibition, and that an exception cannot be applied to overcome this bar.

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

Date: August 7, 1996