07.04

OPINION NO. 07-04

We received a request for advice from a Family Services Caseworker at a local Department of Social Services ("DSS") inquiring whether she may continue to have secondary employment as a psychiatric unit technician with a hospital located in the same county as her State employer. We advise the Requestor and the Department of Human Resources ("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 has worked for the hospital since 1999 prior to her employment with the State. She currently is a part-time weekend relief staff person. She was hired by the local DSS in 2006, and advised DSS of her secondary employment with the hospital. Our review was undertaken as a result of procedures adopted by DHR to submit secondary employment requests by its employees to us for review. ¹ This situation was submitted for review because the local DSS and the hospital have a referral relationship with each other.

As a Family Services Caseworker, the Requestor provides case management to individuals over 65 years of age to help reduce the risk of institutionalization in a nursing home or other assisted living facility for elderly patients. She does not supervise any other employees. According to the information provided by both the hospital and the local DSS office, the Requestor is not involved in these referrals for either entity. She does not hold a LCSWC (social work license), necessary to perform emergency petitions for admission for any type of psychiatric care. The local DSS office also has an Adult Protective Services Unit, which deals with interventions and emergency petitions for adults needing psychiatric care. The Requestor does not have any State duties related to this unit.

The Requestor's secondary employment is as a nursing technician in the psychiatric unit at the hospital. Her duties at the hospital include orienting patients to the unit, recording vital signs, performing glucose testing, and observing and recording physical and behavioral changes in patients. Two registered nurses and two technicians are assigned to the fifteen-bed unit at all times. The Requestor is not involved in any discharge planning or referrals for psychiatric patients at the hospital. She works as a "fill-in" employee when regular employees are not scheduled during weekends.

Section 15-502 of the Maryland Public Ethics Law provides general restrictions related to secondary or outside employment by State employees. The issue in this request relates to the application of §§15-502(b)(1) and (2), which provide that an official or employee may not "be employed by...an entity subject to the authority of that official or employee or of the governmental unit with which the official or employee is affiliated; or an entity that is negotiating or has entered a contract with that governmental unit . . ." or "hold any other employment relationship if that employment relationship would impair the impartiality and independent judgment of the official or employee." The Requestor's secondary employment relationship is with the hospital and is employment subject to the strict prohibition of subsection (b)(1)(ii) because of the referral relationship between the local DSS and the hospital. In accordance with §15-502(c)(1) of the Ethics Law, the employment may only be allowed if we granted an exception pursuant to our regulations at COMAR 19A.02.01.03 ² where we determine that there is no conflict of interest or appearance of conflict.

The Maryland Public Ethics Law was amended in 1981 to include the exception provision of § 15-502(c)(1) that enables the Commission to allow secondary or outside employment that would otherwise be prohibited "where such employment does not create a conflict of interest or appearance of conflict." ³ The Commission's outside employment exception regulation was adopted in 1982 and has been addressed in several of our past opinions. ⁴

In Opinion No. 06-03, we noted that ". . . we sought to develop standards or criteria that would define circumstances indicating that the relationship between the employee's state position and duties and the private employment was sufficiently remote that the possibility of an actual conflict of interest or an appearance of conflict was unlikely." The exception to outside employment prohibition regulations at COMAR 19A.02.01.03 include nine criterion for the Commission to evaluate in an exception determination. The exception criteria include the possible impact of the employee's State duties on the outside employer, and the relationship of the employee to supervisors and other employees, or the unit of the employee's agency that may have authority over contracts that impact on the outside employer, and the employee's proposed secondary employment duties and any relationship between those duties and the employee's State agency. ⁵

Based on our application of the facts of this request to the exception criteria, we grant the Requestor an exception to allow her secondary employment with the local hospital discussed above. The Requestor's State duties do not impact on her outside employment with the hospital. She is not assigned to a division of the local DSS that has a referral relationship with the hospital, nor does she have any supervisory relationship with other employees whose State duties impact her outside employer. Her outside employment with the hospital 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 attend to any patients at the hospital who are also clients of the local DSS. She will also recuse herself from any State duties that involve a client or patient who is also receiving treatment from her secondary employer. Also, the Requestor's agency supports her request for an exception to allow her secondary employment.

We have provided informal advice in the past to DHR employees who proposed secondary employment with hospitals that also had referral or other types of contractual relationships with their State agency. We advised that the proposed secondary employment was prohibited in some instances where the employee supervised or was supervised by individuals that made referrals to the hospital at issue. Based on the supervisory relationship with other employees, we could not grant an exception to those State employees.

In granting the exception in the present matter, we remind DHR and the local DSS, as we have in other situations, to monitor compliance with this advice. Should the Requestor's State duties and/or responsibilities at the hospital change in the future, the secondary employment would need further evaluation by the Commission.

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 As reported in the Commission's Annual Report for 2006, DHR has presented over 100 requests for secondary employment approval in the last three years. See http://ethics.gove.state.md.us/report-2006.htm. Secondary employment requests are initiated by the individual employee. DHR reviews the initial request and determines if the agency approves of the employee's proposal. DHR then presents the request, along with the employee's MS-22 or position description and a completed secondary employment information sheet to the Commission for evaluation. The Commission's staff contacts that employee, supervisor and outside employer for additional information and presents the information to the Commission for their determination. In some instances, approval of proposed secondary employment can be made by the Commission's staff.

^#2 The Commission's outside employment exception regulations (COMAR 19A.02.01.03) may be accessed through the Internet at www.dsd.state.md.us/comar and have been previously been set forth in Opinion Nos. 82-40 and 84-14.

^#3 As discussed in Commission Opinion Nos. 82-40 and 06-03, the Maryland Public Ethics Law as enacted in 1979 did not provide any exception to the prohibition against outside or secondary employment with an entity either subject the authority of or contracting with the employee's governmental unit or agency.

^#4 See Commission Opinion Nos. 82-40; 82-41; 83-21; 87-21;88-15; 90-04 and 06-03.

^#5 COMAR 19A.02.01.03 A—1.