80.22

OPINION NO. 80-22

The State Ethics Commission has received a request from the Director of Legislative Reference (the Director) for advice as to whether he may engage in outside activity providing editorial and proof reading services to county governments in preparation of supplement and replacement volumes to the respective counties' Public Local Laws.

The State Department of Legislative Reference (DLR) is responsible for providing drafting and other services with regard to bills introduced in the General Assembly and for maintaining historical records of the laws of Maryland and other states. DLR's Division of Statutory Revision houses the Commission to Revise The Annotated Code, which is engaged in the reorganization and recodification of the Annotated Code of Maryland. The extent of DLR's responsibility for the Public Local Laws of the counties depends on the type of county government and the extent of its independent law-making authority. Most counties have traditional commissioner-type governments under which all of the Public Local Laws are enacted by the General Assembly. Three counties have Code Home Rule governments, and enact some of their own local laws; and several of the more populous counties have Charter governments in which the county council has substantial law-making powers. However, even Code and Charter counties' powers are limited, so that some of their laws are initiated in the General Assembly. All Public Local Laws are published in the Code, with each county assigned a separate article.

Updating Public Local Laws is, according to the Director, generally understood to be the responsibility of the respective county governments, whether the laws are enacted locally or in Annapolis. For example, Article 25B, §12 of the Maryland Code requires code counties to furnish each year a compilation of local laws enacted, amended or repealed by the county during that year. Copies of the compilation are made available to various State offices, including the DLR, and to the public at a reasonable cost. If the county does not furnish this compilation (or copies of referenda actions during the year) to DLR by March 1 of the following calendar year, the DLR certifies this fact to the State Comptroller who may discontinue State funds to the county. DLR also arranges for the county compilations to be arranged in logical and convenient order and printed in the Session Laws of the General Assembly.1

The Director indicates that the last general compilation effort was done in the 1930's by the then-Director of Legislative Reference, his predecessor's predecessor. More recent revision and update efforts have been undertaken by his immediate predecessor. He has himself been approached to undertake these editorial efforts by several counties, primarily Commissioner-type counties; he had completed the effort for one county, but has not cashed the check. He indicated that these requests are totally unsolicited, merely reflecting the past practice of reliance by counties on the Director of Legislative Reference for Public Local Law updates. He indicated that the larger of two out-of-state firms engaged in this type of work has recently withdrawn from this business, and he is not sure who would otherwise be available to undertake this type of effort. He noted, however, that he does not believe such effort is appropriately a responsibility of DLR, as it is not currently staffed for this activity.

Section 3-103(a) of the Public Ethics Law (Md. Code Ann. Art. 40A, the Law), which prohibits employment with an entity subject to the authority of one's agency, is potentially relevant here, the question being whether these activities result in such employment or an interest in an entity subject to the Director's authority or that of his agency. His employment or economic interest, however, would be with the particular county, and we do not believe that this "entity" can be viewed as subject to the authority of DLR or its Director. Even if the actual bills, as opposed to the county, could be viewed as subject to DLR authority (keeping in mind that they are amended, reviewed, enacted, etc., by the General Assembly), we do not think they should be viewed as "entities" in which the Director would have an employment or other interest as contemplated by §3-103(a). Nor do we believe that the counties' need to submit copies of compilations to DLR brings them under the agency's authority.

We also conclude that this relationship between the counties, their laws, and the activities of the DLR, would limit the impact of §3-101 of the Law on the Director's activities. Section 3-101 prohibits an official from participating as a public official (except in a ministerial or administrative manner) in matters in which he has an interest or in which certain entities with which he is connected are involved as parties. As Director of DLR, the Director is likely to be substantively involved, either directly or as a supervisor, in legislative matters which ultimately become Public Local Laws. Even though these documents may thus eventually be the raw material with which the Director would be working on behalf of his county employers, this in itself, would not bring his DLR activities within the proscription of §3-101.

We do not believe that the bills themselves constitute "matters" in which the Director could be said to have an economic interest merely because they may at one point be part of a body of information he could be called upon to edit. Nor do we believe that the bills should be viewed as matters in which a potential county employer would be involved as a party. Though the county may be interested in the outcome of legislative action relating to such bills, we do not think that they would thus be "parties" to the legislative action in the narrow sense of that term in §3-101(a) of the Law. As to the submission of a local law compilation to DLR, this could be viewed as a transaction involving the county, and possibly the very documents being prepared by the Director. However, from the legislative provisions requiring these submissions, it appears that any action by the Director would be purely ministerial in nature and thus excluded from coverage of §3-101 of the Law.

We do not wish to foreclose the possibility that some matter could arise in DLR's bill-drafting or publication activities which would or could be so directly related to the Director's private editing activities as to raise concerns under §3-101. He would, in such a situation, be required to disqualify himself from participating in the matter or discontinue his outside employment. Based on the general facts presented to us here, however, we do not believe a disqualification issue arises under §3-101.

Section 3-104 of the Law, which prohibits intentional use of prestige of office for one's own personal gain, may also be relevant to the Director's request. He indicates that all of the requests directed to him have been unsolicited, a natural result of the practice relating to the past history of Public Local Law updates. The issue, then, would be whether his acceptance of these jobs and of payment for them would be an intentional use of the prestige of his office for his own personal gain. In dealing with a similar issue under a near identical prohibition under the Code of Ethics (Art. III, §4, Title 19 COMAR), the Board of Ethics read the provisions to permit the proposed outside activity.

In this opinion, dealing with a situation in which the Director of the State Law Library was approached by two Circuit Court libraries to do surveys and other work relating to their libraries, the Board found:

There is no indication...that the Director has intentionally used the prestige of his State employment for private gain.... *The* additional work involved has been requested by the agencies which need the services because of the Director's unique knowledge and training. He has not asked for the employment.

(Opinion No. 17, Title 19 COMAR.)

Given the history of the editing of Local Public Laws, and the fact that, here too, the Director has not asked for employment, we conclude that the facts as presented do not support a finding of intentional use of the prestige of his office. However, we admonish the Director to take great care in assuring that in his dealings with county governments he refrain from making any use of this official title, or using the facilities (including clerical help, etc.) of his office, or in any way allowing his official position to become a factor in his seeking out or completing private editing contracts.

Mr. Calvert was a member of the Commission when the case was considered and decided, but resigned prior to the issuance of the formal opinion.

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

Date: October 1, 1980

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1 For related provisions dealing with other types of counties, see Md. Code Ann., Art. 25, §32A and Art. 25A, §7.