97.15

OPINION NO. 97-15

An advisory opinion has been requested as to whether an exception can be allowed where the spouse of a Support Enforcement Agent in a county Department of Social Services (part of the Department of Human Resources, DHR) operates a home day care facility licensed by the Child Care Administration (also a unit of DHR). We conclude based on the information provided regarding the individual's duties and the day care facility that an exception can be applied to permit this activity to continue.

The Child Support Enforcement Administration is a DHR program charged with the responsibility for providing child support services to families. Through units in local Departments of Social Services (DSS), and in cooperation with the local State's Attorneys, the Administration locates absent parents; determines paternity, establishes, reviews, modifies and enforces support orders; and collects and disburses support payments. Persons who apply to the agency for public assistance, for child care subsidy, or for child support enforcement assistance, are referred to the child support intake staff. The case is processed to locate the absent parent and then referred to the State's Attorney, who handles the matter through the court. If the court makes a positive determination of paternity then a child support order is entered and referred to the local Child Support Enforcement unit for enforcement. The child support agent who is assigned the case sets up the account and contacts the absent parent, usually by letter, to set up the ground rules for making payments. A wage garnishment is sent to the employer including a request that the children be placed on the employee's health insurance. Payments are made either by the parent or the employer based on the garnishment action. According to the Requestor, this process may entail a variety of follow up actions that could lead to further court appearance, for example, if payments are not made on time.

The Child Care Administration is also a program unit in the DHR, with the mandate of adopting and implementing regulations for the licensing and operation of child care centers and family day care homes. The Administration's regulations provide for registration of family day care homes, including standards for environmental health and safety of children, training and related requirements as to the provider, inspection of the home by the agency, and administrative requirements. Providers are required to identify a substitute who would be available in emergencies. The agency advises that the home day care regulations address the provider as an individual as well as the home itself, and include criminal background checks for all adult residents of the home. The child care licensing program is conducted through several regional offices throughout the State that are not administratively a part of the local DSS and which as a practical and policy matter tend not to be co-located with the local Department.

It therefore appears that the child care licensing program as a general matter has little direct relationship or interaction for either practical or policy purposes, with the support enforcement program or other social services activities of the local departments. The Child Care Administration (CCA), however, is also responsible for policy and implementation of the State's subsidy payments for child care, which are implemented within the local departments, and it is through their common interaction with the locally administered Family Investment Program (FIP) that the child care and child support programs indirectly relate to each other. According to agency staff, in the FIP the focus is on a work support effort in which the goal is to move recipients from welfare payments to work, work training or education. The structure of the program is thus to enhance any activities that would subsidize a work activity or otherwise provide financial support required to remove a person from the public assistance payment system, and the child support and the child care subsidy programs are thus both viewed as sources for the FIP program. The child care subsidy program, for example, is viewed as a work support resource available to individuals applying for public assistance to enhance the ability to keep and maintain a job or undertake necessary training or education.

This request involves a Child Support Enforcement Agent in the Bureau of Support Enforcement in a county Department of Social Services (the Requestor). He was employed in his current position in April 1995 and previously had a specialized assignment where his functions related entirely to court appearances in testimony and related work in coordination with the State's Attorney's Office. Due to a recent reorganization of the Bureau, he has taken on a regular caseload of 750 cases. This entails his ongoing activities in enforcing court orders for child support as set forth above. Apparently the Requestor has no dealings with actual payment or money aspects of the transactions and is not involved in any determinations of eligibility for public assistance or other public financial support. Nor is he assigned to the assessment team in his county that works with an applicant to coordinate referrals and provision of services to maximize the available resources to support the individual custodial parent. Reflecting the view of the FIP as a coordinated work support program, this team includes an FIP worker, a social worker and a support enforcement agent. As an agent assigned a regular caseload, however, the Requestor is not expected to be involved with this team.

The issue here arises from the fact the Requestor's spouse maintains a family day care program in their home, which began in 1992, prior to his employment in his current position. He indicates that he is not on the license for the day care program, and that establishment of this business involved no capital investment, as only very minimal things had to be done to meet licensing requirements. According to the Requestor the home was initially inspected by CCA and by the Fire Marshal and there have been regular inspections and recertification reviews. This is confirmed by the agency, which also indicates that there have been no complaints about this facility and it was inspected last July and no issues were presented. Requestor advises further that his spouse gets client referrals through friends and prior clients, and though she is on the list maintained by the Department of all available child care facilities in the area, has never had a client receiving purchase of care subsidy. The Requestor advises that there has never been a situation where some special maintenance activity or work was required in connection with his spouse's child care facility, and that he provides no services to this activity. He indicates that he is not identified as a substitute in his spouse's application, which references his wife's mother (a registered nurse) as the emergency backup for the day care facility.

This request follows up on our Opinion No. 97-3, which involves the employment and interest prohibitions of §15-502 of the Ethics Law (State Government Article, §15-502, Annotated Code of Maryland), and application of our regulatory exception provisions. This section prohibits an employee from being employed by or having an interest in an entity that contracts with or is subject to the authority of his agency. Prior to Opinion No. 97-3 we had issued several opinions dealing with spouses' businesses, suggesting that where such businesses were located in the family home special scrutiny was required. In No. 97-3, we took account of the fact that in the family day care situation the home itself was a part of the licensing and regulatory function, and concluded that under the circumstances it was necessary to conclude that the employee had an interest in the spouse's business. We continue to believe as general matter that the approach taken in this opinion to this type of home-operated business of employee relatives is correct, and that the Requestor must therefore be viewed as having a financial interest in his spouse's day care business which, since it is licensed by his agency, would be prohibited by the strict financial interest prohibition of §15-502 of the Law.

The question for us here is thus whether an exception can be applied to permit the activity to continue. Exception is permitted pursuant to statutory language in §15-502 that the prohibition applies unless it is determined by the Commission pursuant to regulation that there is no conflict of interest or appearance of conflict. The Commission's regulations (at COMAR 19A.02.02) generally look to relationships between an individual official's duties and the private activity, as well as to the nature of the private activity, to determine whether the relationships are sufficiently remote that a conflict or appearance of conflict is unlikely. For example, we consider if the individual has duties relating to the private activity, is supervised by persons regulating the activity, or otherwise interacts with the private activity or agency personnel that are involved with it. The regulatory criteria also call for consideration of the existence of relationships with the entity that entail interaction with an individual's agency program, such as whether the person receives private compensation under the program or has responsibilities for or otherwise assists the private entity in compliance with agency regulations.

We have reviewed the specific information presented by the Requestor to determine if the circumstances present a situation where exception would be appropriate. The DHR Ethics Liaison has advised that the agency does not believe this situation would be a problem for the agency, stating that though the purchase of care and the child support enforcement programs both relate to the FIP, their relationship is quite indirect and does not entail the licensing function to which any home day care program is subject. This would appear to be the case at the local level as well. Though the team assessment approach in the Requestor's county tends to suggest some potential interaction between purchase of care and child support enforcement, this also does not involve the licensing function. Moreover, the Requestor's duties as a support enforcement agent seem to have no relationship to the child care program, and he indicates that he does not provide services to or otherwise get involved in his spouse's business. We also understand that there have been no issues relating to the day care facility, and that the Requestor's spouse has not accepted agency funding as a day care provider.

Under all of these circumstances, we conclude that this situation presents the type of remoteness that supports the allowance of an exception to permit this activity to continue. This conclusion, of course, relies on the understanding that the Requestor's duties are not only genuinely remote from the Child Care licensing program, but that he continues not to be assigned to the assessment team or to have any responsibilities for dealing with child care subsidies or other delivery of services directly under the FIP. We also assume that his spouse continues to accept no purchase of care clients in her day care program and advise the agency that it should delete her day care home from the list of those entities provided to agency clients as potential sources. In our view, as a general matter, exception in this situation is allowed based not only on the understanding of the nature of the Requestor's official duties, but also assuming that his spouse's interaction with the agency continues to be a minimal routine licensing function, with no funding or enforcement issues arising that would entail more substantial interaction with the agency and its licensing, funding or enforcement staff.

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

Date: December 22, 1997