07.03

OPINION NO. 07-03
STATE ETHICS COMMISSION

The Lieutenant Governor has requested our advice on the application of the Maryland Public Ethics Law, Md. Code Ann., State Gov't Title 15 (Supp. 2007) to his and his wife's interest in becoming foster parents through the Maryland Department of Human Resources' ("DHR") foster care program. After reviewing the request with Departmental officials, we conclude, for the reasons set forth below, that the Ethics Law does not prohibit the Lieutenant Governor and his wife from becoming foster parents and participating in the program. The Law would restrict his participation in certain official government matters related to the foster care program Additionally, the Lieutenant Governor and Departmental officials should exercise care to avoid any improper use of prestige of office related to his participation in the program.

Office of the Lieutenant Governor

The Office of the Lieutenant Governor is created in the State Constitution as an elected office in the executive branch of government.1 The Office of Lieutenant Governor is, according to the Maryland Manual, the "second-ranking office of the State" and the Lieutenant Governor performs duties delegated by the Governor. 2 The Lieutenant Governor serves on the Governor's Executive Council with the Governor, Secretary of State and the Secretaries of each principal department in the Executive Branch. One purpose of the Council is "coordination and effective direction and supervision of the State government." 3 The Manual further indicates that the Lieutenant Governor also serves on the Governor's Subcabinet for International Affairs and the State Planning Committee for Higher Education. The Lieutenant Governor's website indicates that the Governor has assigned the following duties to him:

. . . focus our efforts in the areas of economic development, higher education and health care as well as overseeing the State's efforts to coordinate activities associated with the 2005 Base Realignment Closure (BRAC) program . . . .

At this time, the Lieutenant Governor does not have any direct duties delegated from the Governor related to DHR's Foster Care Program.

Foster Care Program

DHR describes the foster care program as "a temporary service that provides short-term care and supportive services to children who are unable to live at home because of child abuse or neglect." 4 Foster children may be placed in "family foster homes" or in group home settings. One goal of the program is "to place all foster children into a permanent living arrangement within a maximum of 15 months from the date they entered foster care." 5

DHR funds the foster care program and has adopted requirements for the approval of foster homes by local departments of social services. According to DHR:

. . . Foster care caseworkers work with the birth and foster families to develop the most appropriate permanency plan for each child. Reunification with parents, placement with relatives, or adoption are examples of permanency plans. Also, some children receive services that teach them to be independent young adults if for some reason they cannot reunite with their family. The foster care caseworker assists the birth and foster families in obtaining the services, such as counseling and health care, needed to meet the goals of the permanency plan. Each foster care program also works to recruit, train, approve and retain foster care providers . . . . 6

A criminal background check, medical examinations, and a safety review of the home, are all part of the "approval" requirements for foster care applicants. Additionally, the regulations also provide for a "home study" by foster care caseworkers that allow the local department of social services to study and assess a family's potential for foster parenthood. There are at least two home visits during the application process, one of which may be unannounced and include a tour of the home. Finally, foster parent applicants must attend 27 hours of pre-service training and submit three personal references. The final approval by the department is valid for one year and there are requirements for the local department to maintain regular contact with the foster parents and foster child after the initial placement. Children may be placed in foster care following a court "shelter care hearing" and a subsequent "adjudicatory hearing." Children in foster care receive subsequent "permanency planning hearings" with the court every six months to determine whether they may be returned home or remain in foster care. Foster parents receive a monthly payment from the Department for the care of the foster children.

Discussion

We have in the past addressed DHR employees serving as foster parents and other providers to the Department. 7 In those cases, the requests presented issues under the outside employment and interest prohibitions of §15-502(b) of the Ethics Law. Section 15-502(b)(1) prohibits an employee from being employed by or having an interest in an entity that is subject to his or her authority or that of his or her agency or that has or is negotiating a contract with the agency. In interpreting this provision in situations involving provider relationships, including foster care, we have generally said that being a provider, even as an individual, results in the existence of an entity with which the individual has both an employment and interest relationship as contemplated in §15-502. This entity has both a regulatory and contractual relationship with the State agency for which it serves as a provider. This relationship, between the Department and the DHR employee, has generally been found to be prohibited unless an exception was allowed by Commission regulation. 8

In the present situation the employment and/or financial interest relationship is not with the Office of the Lieutenant Governor but with DHR. In prior opinions addressing the scope of authority of the Governor's Office, we have said that we will not find that every entity doing business with or regulated by a State agency is subject to the authority of the Governor's Office by virtue of the fact that the executive agency may ultimately report to the Governor. 9 By analogy, we reach the same result for the Office of the Lieutenant Governor. This is particularly true because the Lieutenant Governor only has those duties delegated by the Governor. Therefore, we conclude that the Lieutenant Governor is not precluded from being a foster parent by virtue of the secondary employment restrictions of §15-502(b) of the law.

The request, however, also presents general participation (§15-501) and prestige of office (§15-506) issues. 10 In regard to the participation issues, he should avoid any official participation as Lieutenant Governor in matters involving the foster care program and matters that would affect his interest as a foster parent. He has in his request to us, stated he would be careful to avoid any possible conflict by recusal to avoid even the appearance of conflict. Additionally, his interactions with the Department as a foster parent could bring into issue both the participation and prestige provisions of the law as well. The Departmental officials who met with us expressed an understanding of the importance of having experienced and professionally competent staff to work on the home study and placement to objectively process all matters related to the Lieutenant Governor's application and to have executive staff monitor the situation. The Lieutenant Governor has also expressed his understanding that he will need to comply with all the "approval" requirements and will not request any process out of the ordinary review.

We are also aware that the Department has had difficulty recruiting a sufficient number of foster parents to meet the needs of children under its care. The Lieutenant Governor's participation in the program may afford an opportunity for promotion of the Department's foster care program. We counsel that careful thought should be given to ensure that any program promotion is consistent with the needs of the program and does not cross into use of prestige for promotion of interests unrelated to foster care and should not be for political promotion or gain. 11

  Robert F. Scholz, Chairman
  H. Richard Duden, III
  Janet E. McHugh
  Julian L. Lapides
  Paul M. Vettori

October 11, 2007

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#1 Constitution of Maryland, Article II, Section 1A. See also Md. Code Ann., State Gov't Title 3, §3-101 (Supp. 2007).

#2 See http://www.msamd.gov/msa/mdmanual and the Constitution of Maryland, Article II, Section 1, 1A, and 2.

#3 Sections 8103 and 8-104, Md. Code Ann., State Gov't Title 15 (Supp. 2007).

#4 See http://www.dhr.state.md.us/ssa/foster/index.htm.

#5 Ibid.

#6 Ibid.

#7 See for example Opinion Nos. 86-1, 93-1, and 97-15.

#8 See COMAR 19A.02.01 "Exception to Outside Employment Prohibition."

#9 See Opinion Nos. 91-7 and 03-01.

#10 We recognize that the application of these two provisions will be determined based on specific facts related to the placement of the foster child with the Lieutenant Governor's family. At this time, we can only provide general advice.

#11 The Lieutenant Governor also asked whether his activities as a foster parent would violate Article 35 of the Maryland Declaration of Rights. Article 35 is a prohibition against holding two offices of profit. This question was referred to the Attorney General who indicated that "the status of being a foster parent is not a public office."