81.03

OPINION NO. 81-3

A retired employee (the Requestor) who was carried on the State payroll in calendar year 1980 only to use up his annual leave has inquired as to whether he must file a financial disclosure statement for calendar year 1979 as required by §4-102 of the Maryland Public Ethics Law (Article 40A, §4-102, Annotated Code of Maryland, the Ethics Law).

The Requestor is a retired employee of the Department of Fiscal Services. He retired from State service with an official termination date of January 30, 1980. However, he indicates (and his former personnel office confirms) that he actually left his State position on November 11, 1979; he was carried on the rolls through the end of January in order to use up his annual leave.

Section 4-102 of the Public Ethics Law requires filing of financial disclosure statements by officials "holding an office. ..on or before the 15th day of April of each year during the person's term of office...." In implementing the financial disclosure provisions of the Ethics Law, we have consistently taken the view that this provision applies to persons serving at any time during the applicable calendar year. Individuals have been identified as covered for the April 15, 1980 report based on their employment status as of January 1, 1980.

The issue presented here is whether being carried on the rolls as a technical matter constitutes "holding an office" as contemplated in §4-102. We believe that it does. The Requestor was a compensated public official for the entire reporting period of calendar year 1979. Further, for all legal personnel purposes, he was a State employee until January 30, 1980. He could have changed his mind about his retirement, since it was not final until that date. Moreover, personnel in the Requestor's former office indicate that they viewed him as being "employed" through his actual retirement date; they indicate that had a problem developed with one of his audits or if a miscalculation in his leave had been discovered they would have expected him to provide whatever services were necessary.

We realize that in this situation the Requestor did not change his mind and in fact did not engage in any activities for his State employer during 1980. However, we believe that the legal and official termination date for Department of Personnel purposes should be the controlling date here. In implementing a reporting program such as the financial disclosure program it is important that evenhanded and consistent standards be applied so that all persons subject to the Law are treated the same. We believe that the official personnel dates defining a person's employment period present an objective and clearly applicable standard that is appropriately applied here. Further, we find that application of this criteria to a former employee in this situation is consistent with the purposes of the Law's disclosure provisions. Though the Law is designed in part to allow monitoring of the interests of persons currently in office, we believe it is also designed to review past holdings and past conduct to determine whether violations of the Law have occurred.

We therefore conclude that the Requestor held an office during 1980 as is set forth in §4-102 of the Law. As he held a position as a public official he is required to submit a financial disclosure statement covering calendar year 1979.

Mr. Calvert was a member of the Commission at the time this request was heard but resigned prior to issuance of this Opinion. Mr. Finney does not concur in all aspects of this Opinion.

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

Date: March 10, 1981