07.05

OPINION NO. 07-05

As part of our review of secondary employment requests by employees of the Department of Human Resources ("DHR"), we received a request from an employee at a local Department of Social Services ("DSS") inquiring whether she may have secondary employment as a contractual social worker with a private adoption agency that facilitates international adoptions. 1 We advise the Requestor and DHR, based on the information provided, that the secondary employment is allowable under the provisions of the Maryland Public Ethics Law (Md. Code Ann., State Gov't Title 15 (Supp. 2007) and the Commission's Exception to Outside Employment Prohibition Regulations at COMAR 19A.02.01.03.

The Requestor works as a Family Services Social Worker II in the Adult Services Unit for the local DSS. In her State duties, the Requestor identifies adults who are in need of services from the local DSS, develops treatment plans, performs case management, and works with programs that provide housing for disabled adults. The Requestor proposes to be a contractual social worker with a private adoption agency. In this capacity, she would perform home studies for families who apply to adopt a child through this agency, which only handles international adoptions of children from six different foreign countries. The private adoption agency is licensed by DHR. DHR has a separate division which licenses and regulates adoption agencies that facilitate adoptions in Maryland. 2 The Requestor does not have any State duties related to this unit.

Section 15-502 of the Maryland Public Ethics Law provides general restrictions related to secondary or outside employment by State employees. We discussed this provision and our adoption of exception regulations in Opinion No. 07-04. In the present matter, the Requestor's proposed secondary employment with the private adoption agency is employment subject to the strict prohibition of subsection (b)(1)(i) because of the regulatory relationship between the DHR and the private adoption agency. Pursuant to §15-502(c)(1) of the Ethics Law, the employment may only be allowed if we grant an exception pursuant to our regulations at COMAR 19A.02.01.03. 3

We grant the Requestor an exception to allow her secondary employment with the private adoption agency discussed above. The Requestor's State duties do not impact on her outside employment with the private adoption agency. She is not assigned to a division of DHR that has regulatory authority over the adoption agency, nor does she have any supervisory relationship with other employees whose State duties impact her outside employer. Her outside employment with the private adoption agency is not funded by any State funds and her outside employment duties do not involve interaction with her State agency. The Requestor, her State agency and her secondary employer have all represented that all necessary steps will be taken to ensure that the Requestor does not interact with any clients of the private adoption agency who are also recipients of services from the local DSS. Representatives of DHR indicated that it is highly unlikely that there would be any mutual clients. Also, the Requestor's agency supports her request for an exception to allow her secondary employment.

In Opinion 91-6, we considered a local DSS special needs adoption caseworker's request for secondary employment performing home studies for potential adoptive families outside of Maryland for an international adoptions agency. We approved that request and noted that neither the employee nor her secondary employer were required to be licensed as a child placement agency by DHR because she was performing work outside of Maryland and the adoptions were finalized in other countries. Also, in Opinion 91-6, the employee at issue worked as an adoption caseworker in her State position. The Requestor in the present matter does not have any State duties related to adoption services and will not be conducting any home studies in her secondary employment involving any children that are being adopted through her State agency. All of the adoptions involved in her outside employment are international adoptions involving children from foreign countries.

As we do in all these matters, we remind the Requestor, DHR and the local DSS, that the exception is based on the facts as presented and should the Requestor's State duties or responsibilities with the private adoption agency change in the future, the secondary employment may need further review by the Commission. As noted previously, DHR and DSS should monitor compliance with this advice.

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

January 17, 2008

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#1 See Opinion No. 07-04 for a brief description of DHR's secondary employment review policy.

#2 www.dhr.state.md.us 

#3 The Commission outside employment exception regulations (COMAR 19A.02.01.03) may be accessed through the internet at www.dsd.state.md.us/comar