The question has been presented as to whether a chaplain in a State prison facility (the Chaplain) may be involved in establishing and otherwise affiliated with a private entity in connection with a program to provide transitional housing and related services to released inmates. We advise that this activity is only allowed if the Chaplain does not serve on the governing board for the program and as long as he has no role in the pre-release process or in advising or otherwise recruiting inmates for the program.

This request involves an individual who is a Muslim Chaplain with the Division of Correction. He is a regular full-time employee assigned to two correctional institutions as an institutional chaplain and administrative chaplain, respectively. Institutional chaplains work under the supervision of an administrative chaplain and have duties providing pastoral care, providing services, instruction and rites in their faith, and performing various procedural functions such as supervising religious services volunteers, processing marriage requests and monitoring activities of religious groups. Institutional chaplains also have community relations functions to assist in interpreting the needs of the inmate population and interacting with the community. Administrative chaplains work with institutional chaplains and with religious services volunteers to serve the religious needs of the inmate population. Administrative chaplains also process inmate requests for religious preference and practice and for religious diets, distribute monthly religious calendars, monitor the activities of religious groups in the institution, and perform other administrative functions such as staff and volunteer training and budget development.

The Chaplain is a member of the Board of a private Muslim community organization (the Corporation) and is one of the primary authors of a Corporation project known as the Prison Services Project. He indicates that from his experience working in the prison system, he has learned of the need for faith based transitional opportunities for Muslim inmates. The Prison Services Project reflects the view that religion is helpful for people in finding a way to change their lives. According to the Chaplain, there is currently no Muslim-affiliated place for released inmates to be referred. He indicates that he and several others involved with the prison system have therefore been leaders in developing the Prison Services Project within the Corporation. This Project is anticipated to provide a variety of transitional services to former inmates. The Corporation has a property that would be used to provide housing. In addition, individuals would be provided with counseling to deal with their re-entry into society, generally and from a religious standpoint, and would receive mentoring and a base from which to rebuild their lives. The Project would initially provide rent and food until the individual would be able to be employed and able to be on their own. There is no stated expectation to seek State funding support. Initial funding would be from supporters in the Corporation, with eventual funding from rent paid by residents and support from "alumnae."

The Chaplain indicates that where an inmate wants to participate as a resident in the Prison Services Project, application would be filed with the separate and independent Board of the Project (rather than the Corporation Board) and the applicant would be interviewed based on certain criteria. This process will involve access by the Project through its representatives to the institutions and inmates in the institutions to interview applicants for inclusion in the program after their release. Admission decisions would be by the Project Board. The Chaplain also indicates that while he hopes to continue to serve on the Board of the Corporation, he would not anticipate serving on the Board of the Project or having any role in the ongoing activities of the Project or its Board. His service with the Board of the Corporation relates to the general management of the Corporation and would not involve the operational aspects of the Prison Services Project once it is up and running.

According to the Division of Correction, many of those who leave correctional facilities do so in mandatory release status where, based on credits earned for good time, job performance, or educational achievement, they are released before serving their entire original sentence. Under these circumstances a pre-release plan is required to be developed addressing issues such as living arrangements and work plans for the individual. Inmates released in this status continue under the authority of the Division of Parole and Probation, another unit of the Department of Public Safety and Correctional Services. They report to a probation agent immediately after their release and are subject to a variety of restrictions and requirements, including that they carry out their housing and employment plans. Compliance with these requirements is monitored by the parole officer until the sentence is completed, and persons who know of violations are supposed to report them to the parole officer.

The Division's Director of Religious and Volunteer Services indicates that religious volunteers generally are screened as individuals if they are to come into an institution on a regular basis, though these individuals usually volunteer through an established church organization or ministry. She says that the Division does not now regularly screen and certify organizations, though she knows and deals regularly with the larger Muslim mosques in the area. She also states that there are and have been over the years some church organizations or ministries that offer after care programs. She says that usually volunteers will interact with inmates in Bible study or services and establish a contact where a prisoner might ask about assistance after release. The prisoner would be put in touch with the program and interviews, etc. conducted prior to release to determine if a church or program can offer assistance. According to the Director, this is an ordinary activity that has been accepted as long as there are no unprofessional relationships or improprieties between the volunteer and an inmate. She says that as a general matter these interactions involve volunteers with religious organizations. The agency personnel involved in the pre-release planning process are social workers and the agency discourages its chaplains from being involved in this process.

The Chaplain is a regular full-time employee of the Department of Public Safety and Correctional Services. There are others who have been involved with the Project who are either part-time contractual employees not covered by the Ethics Law, or are volunteers. The Chaplain, in addition to being to a State employee, is a member of the Board of a private Corporation whose functions are directed generally at the Muslim community and not as a general matter involved with the State prison system. According to the Chaplain, the Prison Services Project, though initiated and sponsored as a development matter by the Corporation, will be managed and operated by another Board that will be separate from the parent Board. He will not serve on the Board of the Prison Services Project, and would not anticipate that any activities in connection with his service on the Corporation Board would involve the Prison Services Project.

The employment provision of the Ethics Law (State Government Article, §15-502, Annotated Code of Maryland) bars an employee from being employed by an entity that contracts with or is under the authority of his agency (subsection (b)(1)), and from having any other employment that would impair his impartiality or independence of judgment (subsection (b)(2)). The Commission has in several opinions historically advised that service on the management and operational board of a private entity entails fiduciary and other relationships that result in its being viewed as employment even if it is not compensated. The Chaplain would therefore be seen to have an employment relationship with the Corporation for purposes of application of the strict employment and impairment provisions of the Ethics Law as long as he remains on the Corporation's Board. Assuming that in fact the Prison Services Project is established to function under a separate Board on which the Chaplain does not serve, then he would not be viewed as having an employment relationship directly with the Prison Services Project.

From the information provided by the agency and the Chaplain, it appears that the Prison Services Project and its volunteers or other representatives will be directly involved with the Division as a result of its involvement in the pre-release planning process for inmates and its need to have access to inmates and to prison facilities to interview and participate in the planning process. It could also likely have some involvement, either direct or indirect, with the Division of Parole and Probation, another unit of the Department of Public Safety and Correctional Services, as the project would be an entity providing a variety of services to former inmates who may continue under Parole and Probation authority. Under these circumstances, we believe that the Chaplain's direct service on the Board of the Project would be barred as within the strict prohibition of §15-502(b)(1) of the Law.

In our view, however, depending on the specific circumstances, it is possible that the Chaplain's continued service on the Board of the Corporation would not be prohibited. In particular, this approach assumes that there is in fact a separate Board for the Project that has the management and operational responsibilities for Project activities. If there is not a separate Board and the functions related to management of the Prison Services Project are within the direct functions of the Corporation's Board, then the Chaplain's affiliation with the Corporation Board would be prohibited. His affiliation with the Board of the Corporation would also be barred by the impairment provision of §15-502(b)(2) if he has any functions or undertakes participation in any aspects of the Corporation's interaction or general oversight of a separate Project Board. Also, of course, he needs to be aware of the conduct provisions of the Law, particularly the prestige and information limitations of §15-506 and 15-507, and avoid any involvement in the context of his official duties with the pre-release planning process or in recruiting or assisting inmates interested in applying to the Prison Services Project for assistance after release from prison.

In summary, this advice reflects information provided by the agency regarding the agency's religious volunteer program and pre-release planning and from the Chaplain as to the organization of the Prison Services Project and its interaction with the agency and the Corporation. We understand the Chaplain's explanation of the Prison Services Project as providing needed community and religious support to released inmates. We believe, however, that such activities should not involve regular State employees who are part of the State corrections system. The Chaplain therefore needs to take care to separate himself from any ongoing activities of the Project while he remains a Division employee, both as part of his official duties as a Chaplain in these two facilities and as part of his affiliation with the Corporation. Failure to do this would lead to inconsistencies with the requirements of the Ethics Law and possible enforcement review by the Commission.

Charles O. Monk, II, Chair
    Dorothy R. Fait
    D. Bruce Poole
    April E. Sepulveda

Date: July 20, 2000