80.02

OPINION NO. 80-2

A State employee has asked whether the Code of Ethics contained in Article 40A prohibits him from running for local elective office.

Maryland, unlike many other states, does not have a little "Hatch Act" forbidding State employees to engage in political activity. Rather, Article 33, §28-1 (Md. Code Ann.) specifically provides:

Participation in politics or political campaigns and the free expression of political opinions by employees of this state or of any...public authority, body politic or board of education shall not be prohibited and each employee shall retain all rights and obligations of citizenship provided in the Constitution and laws of the State of Maryland, and in the Constitution and laws of the United States of America; however, no such employee shall: (a) engage in political activity while on the job during working hours; (b) advocate the overthrow of the government by unconstitutional or violent means; or (c) be obligated to contribute or render political service.

Section 28-1 is primarily a permissive piece of legislation authorizing participation in politics or political campaigns by State employees with certain exceptions not relevant to this discussion.

Notwithstanding the explicit statutory policy permitting State employees to engage in political activity, the Office of the Attorney General in an opinion to the prior Board of Ethics (62 OAG 425 (1977)) pointed out after a discussion of the legislative policy contained in Section 28-1:

"However, we do not here conclude that 28-1 and 28-2 prevent the Board from ever finding that a State employee has violated the Code of Ethics just because that employee is engaging in political activity. We conclude only that a State employee's political activity—paid or unpaid—cannotbe automatically banned as violative of the Code of Ethics" (emphasis in the original). 62 OAG at 429.

The prior Board reviewed the political activity of State employees on five separate occasions. The section of the old Code of Ethics which was involved in each of those opinions was Article III, §3 which prohibited a State officer or employee from engaging in outside activity which would conflict with his official duties or which could reasonably be expected to impair his independence of judgment in the exercise of his official duties.

Applying the general outside activity prohibitions of Article III, §3, the prior Board consistently advised against mixing State employment and political activity when the State employment involved either the exercise of quasi-judicial powers or the exercise of extremely sensitive discretionary judgments. Affected by those decisions were hearing examiners (Opinion No. 42), Public Service Commissioners (Opinion No. 102), assessors (Opinion No. 106), Members of the Property Tax Assessment Appeals Boards (Opinion No. 126) and Deputy State's Attorneys (Opinion No. 128).

In the first four opinions the Board found that the officials and employees involved exercised quasi-judicial powers in the sense that each presided over administrative hearings which had most of the attributes of judicial proceedings. In Opinion No. 128 the Board decided that the office of Deputy State's Attorney is so clearly a highly sensitive and critical position that anyone holding that office should not simultaneously be a candidate for any office other than State's Attorney nor simultaneously hold a political office whether that office be partisan or non-partisan in nature.

The question now before this Commission is whether any provision of the Code of Ethics contained in Title 3 of Article 40A prohibits State officials and employees from running for political office.

The new Code of Ethics in Article 40A does not contain any section equivalent to Article III, §3's general prohibition on outside activity in conflict with an official's or employee's State duties. Therefore, we do not have a general jurisdictional basis to reach the conclusions set by the political activity opinions of the old Board even though we believe those conclusions contain sound guidance for State employees and officials who exercise quasi-judicial power or who hold important and extremely sensitive State positions.

We conclude, in theory, that holding State employment and running for elective office is not prohibited by any provision of the new Code of Ethics.

However, we wish to emphasize that this Opinion does not imply that State employees and officials should not be sensitive to ethical considerations both in their initial decision to run for a particular political office and throughout the conduct of the campaign nor does it absolve them from being held accountable for any action during the course of a campaign which in fact violates the conflicts provisions in Title 3 of Article 40A.

For example, State officials and employees must scrupulously avoid any action in which they intentionally use the prestige of their office to further their political aspirations (§3-104, Art. 40A). They should also be aware of the statutory prohibitions in §28-1 forbidding them to engage in political activity while on the job during working hours, as well as the prohibitions in the Hatch Act (5 U.S.C.A., §1501 et seq.) which could apply to prohibit some federally-funded State employees from engaging in specific political activities.

Finally, we wish to point out that this Opinion does not reach the question of whether a State official or employee can hold a particular political office while continuing with State service. Should that question come before us, it will be subject to decision on an ad hoc basis.

Herbert J. Belgrad, Chairman
   William B. Calvert
   Jervis S. Finney
   Reverend John Wesley Holland
   Barbara M. Steckel

Date: November 21, 1979