80.28

OPINION NO. 80-28

An opinion has been requested as to whether the Tri-County Council of Southern Maryland (the Council) is an executive agency and its members subject to the financial disclosure provisions of Title 4 of the Maryland Public Ethics Law. (Article 40A, Annotated Code of Maryland, the Ethics Law).1

The Council is established in the public general laws of Maryland (Article 20, Annotated Code of Maryland) as a "tax exempt public body corporate and politic which operates as a cooperative planning and development agency" covering Calvert, Charles and St. Mary's Counties. The Council's membership includes elected officials from each county as well as three members recommended by the respective County Commissioners and one appointed by the President of the Southern Maryland Municipal Association. It also includes nonvoting members appointed by county economic development and planning and zoning commissions and by the State Departments of Planning and Economic and Community Development.

The Council's mission is to "foster the physical, economic and social development of the area. ... It initiates and coordinates plans and projects for the development of human and economic resources of the Southern Maryland region as a Southern Maryland planning and development agency." In addition to a primary responsibility to prepare and adopt a general development plan for the region, the Council is authorized to borrow money and apply for and accept grants and loans from Federal, State and other entities; to review grant-in-aid applications to government agencies from governmental subdivisions within the region; to review local plans and projects that have impact outside the particular subdivision; to participate with other entities in coordinating research; to collect and disseminate statistical information; and to provide planning assistance to local governments and instrumentalities. The responsibilities are similar to those of a counterpart agency in the Baltimore metropolitan area, the Regional Planning Council. The Council's activities are funded partially from the State Treasury and partly by the participating counties, and the enabling statute provides that the Attorney General shall be its legal advisor.

The provisions of the Ethics Law apply to all public officials, including individuals that are appointed to serve on executive agencies. The term "executive agency" is defined in §1-201(k) of the Law 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".2 The Council is an entity established by general public law of the General Assembly; it fulfills a function that transcends single county or local boundaries. It is funded in part by funds from the State Treasury and the chief legal officer of the State government, the Attorney General, is assigned to be the Council's lawyer. Further, the Council carries out the important State function of administering a multi-county planning and development program. Taking all these circumstances together, we believe that the Council must be viewed as an agency in State government as contemplated in §1-201(k) of the Ethics Law.

This view is consistent with the approach taken by the Attorney General regarding the State status of the Regional Planning Council (RPC),55 Opinions of the Attorney General 112 (1970). This opinion dealt with the treatment of RPC as a State agency in the context of the ethics provisions that preceded the adoption of the current Ethics Law. Noting that the RPC's jurisdiction "transcends purely local considerations," the Attorney General found it to be a State agency and its members subject to the ethics laws.

The membership of the RPC includes several individuals appointed by the Governor, and its enabling statute specifically brings its employees under the State merit personnel system. Despite these differences, we believe that the general approach of the RPC opinion should be applied to the Council. The Ethics Law is directed to the conduct of officials performing State functions where the public is entitled to expect certain standards of conduct and levels of disclosure. The RPC and the Council have very similar responsibilities and duties in two multi-county areas. The citizens of each area should be able to expect all persons officially involved in the entities' efforts to be held to the same ethics standards, rather than the differing standards that may be established by respective participating counties.

It is thus our conclusion that the Council is an executive agency in State government and that its members are subject to the financial disclosure provisions of Title 4 of the Ethics Law unless the Board (or individual members) is exempted pursuant to the Commission's exemption authority in §2-103(h) of the Law. The exemption of Boards and Commissions or their individual members is being considered in a separate procedure dealing with issues that have impact for all such entities.

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

Date: December 22, 1980

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1 The Council also requested exemption for its members under §2-103(h) of the Law and advice concerning filing requirements for its members, which requests are being considered in the context of the Commission's across-the-board review of the application of Title 4 of the Law to Boards and Commissions.

2 The Commission does not contemplate any total exemptions that would completely exclude any entity from this definition. Consideration of financial disclosure exemption requests from Boards and Commission is being conducted in a general across-the-board review procedure. The Council's request for exemption will be handled in that context if it is found to be an agency in State government.