80.21

OPINION NO. 80-21

A Professor at a Community College (the Professor) has requested an advisory opinion as to the application to him of the financial disclosure provisions of the Maryland Public Ethics Law (Md. Code Ann., Art. 40A, Title 4, the Law).

The Professor indicates that he is a full-time faculty member at the Community College, with the rank of Professor. He teaches a full 15 credit hour schedule in a science field which includes laboratory instruction, in both the Fall and Spring semesters. He expressed the view that his instructional duties do not warrant his being included as a person required to file financial disclosure. Though he is occasionally involved in recommendations involving the purchase of scientific laboratory equipment in his field, he stated that there are several additional levels of administrative approval required for purchase of such equipment.

The Professor was identified by the Community College's Director of Personnel as an employee of the College required to file financial disclosure, in accordance with instructions provided to the State's community colleges by State Ethics Commission staff for implementing the disclosure program at the colleges. The instructions indicated that individuals serving in positions classified at a State Grade 18, in local graded positions with a base at or above the base of a State Grade 18, or in positions carrying a slope or flat-rate salary equal to the base of a State Grade 18, should be identified as public officials and provided copies of financial disclosure statements for completion and submission to the Commission. Administrative personnel at the community colleges were requested to provide lists of those so identified to the Commission. The Professor's name was included in the list provided by his College, and Commission staff have subsequently confirmed that he does serve in a position carrying a slope salary in excess of the base of a State Grade 18 (as in effect at the filing date).

The issue here is the interpretation and application of the term public official as set forth in §1-201(z) of the Law. Subsection (1) defines a public official as "any individual in the executive branch, or in an executive agency of the State government who...is classified or compensated at grade level 18 or above...." "Executive agency" is defined in §1-201(k) as "a commission, board, agency, or other body in State government, which is established by law but which is not a part of the legislative or judicial branch and has not been exempted by the Commission." We believe the effect of this broad definition of "executive agency" is to include in coverage of the Law entities established and operating at the pleasure of the State government, and exercising the sovereign power of the State, even though they may not fit neatly within a principle Department of the Executive Branch.

We thus conclude that State colleges and universities and community colleges established and maintained by State law are executive agencies as contemplated by §1-201(k) of the Law. This conclusion is consistent with the Commission's determination in Opinion No. 80-9 that community colleges are executive agencies. The Commission relied in that case also on rulings by the Maryland Court of Appeals that community colleges are properly characterized as State agencies notwithstanding various indicia that they are local agencies. Board of Trustees v. Ruff, Inc., 278 Md. 580, 366 A.2d 360 (1976) and Katz v. Wash. Sub. San. Comm., 284 Md. 503 (1978). As an employee of a community college the Professor is therefore in an executive agency as contemplated by §1-201(z)(1) of the Law.

Section 1-201(z)(1)(i) provides that individuals who serve in executive agencies and are classified or compensated at or above a State Grade 18 are public officials. The Commission does not have authority to exempt or exclude regular compensated executive agency employees from this class of officials. The 1980 compensation for a State Grade 18 prior to the filing date of April 15 was $19,619. As the Professor fills a nonclassified position carrying a salary in excess of this threshold amount, we conclude that he is a public official under the Ethics Law. The Professor has expressed his view, however, that given the nature of his instructional duties at the college, he should not be required to file a financial disclosure statement and, further, that the filing requirement violates his right to privacy.

Although the Law in §1-201(z)(1)(ii) sets out criteria for including individuals based on their managerial or contractual responsibilities, §1-201(z)(1)(i) clearly establishes a salary-based criteria that stands on its own. We believe that in including individuals based on salary or grade alone the Legislature adopted a rational classification and did not violate constitutional principles for establishing classifications or infringe upon any constitutionally protected right to privacy. (See Montgomery County v. Walsh, 274 Md. 502 (1975).) Therefore, as a public official the Professor is within the class of persons required to submit a financial disclosure statement in accordance with the provisions of §4-102 of the Law.

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

Date: September 10, 1980