81.14

OPINION NO. 81-14

An individual (the Requestor) has inquired of the State Ethics Commission as to whether he may serve on the Judicial Compensation Commission (the Commission) if his widowed mother is a beneficiary of one-half of her husband's judicial pension, the amount of which is impacted by recommendations of the Commission.

The Requestor is a practicing attorney who has been appointed and qualified as a member of the newly created Judicial Compensation Commission. The Commission is an advisory body directed by statute to

study and make recommendations with respect to all aspects of judicial compensation, to the end that the judicial compensation structure shall be adequate to assure that highly qualified persons will be attracted to the bench and will continue to serve there without unreasonable economic hardship. (Courts and Judicial Proceedings Article, §1-708, Annotated Code of Maryland.)

Written recommendations as to judicial salaries and pensions are to be submitted to the Governor and the General Assembly at specified intervals set forth in the enabling statute. Recommended salaries become binding on the Governor (for budget submission purposes) unless the General Assembly takes affirmative action to modify them. Recommended pensions, however, are introduced as legislation and become effective only if passed by both houses. All recommendations of the Commission, however they are reflected in the Governor's proposed budget, are subject to the discretionary action of the General Assembly, within constitutional restraints.

The Requestor's mother is a widow who receives judicial pension benefits as a result of her late husband's service on the Maryland Court of Appeals and the First Judicial Circuit. She has been receiving this pension and has regularly benefited from incremental increases in it since her husband's death in 1952. The Requestor indicates that his mother is not dependent on him; she owns her own house, has independent income, and he does not provide support to her. Nor does she provide financial support to him in any way.

The major issue raised by this request is the application of §3-101 of the Public Ethics Law (Article 40A, Annotated Code of Maryland, the Ethics Law).1 This section prohibits participation, in a non-ministerial way, in any matter in which an official, or his parent, has an interest. Though the Requestor himself does not appear to have an economic interest in a judicial pension, §3-101 specifically includes interests of parents. As a beneficiary of the judicial pension system, his parent would appear to have a continuing economic interest that could be impacted by the actions of his Commission. However, despite the fact that a precise and careful statutory scheme has been set up for establishment of recommended salaries and pensions and legislative action on them, we do not believe that the Commission's action is the type of legislative activity that should be viewed as a "matter" under §3-101.

In Opinions 80-17 and 81-5, we considered the application of §3-101 to general policy, regulatory and legislative actions. Though both of those cases presented more generalized fact situations, they suggest a general approach to identifying the kinds of "matters" that would be affected by the §3-101 disqualification provisions. Consistent with these Opinions, we believe in this situation that the legislative proposals generated by the Commission should not be considered as matters within the purview of §3-101. The fact that the General Assembly has such substantial intervening authority in taking final action on legislation would appear to insulate parties such as the Requestor from responsibility for the final legislative product. Given the ultimate authority of the General Assembly over legislation, we view his participation in development of a legislative proposal as sufficiently removed from the decision that will affect his mother's pension to warrant a determination that it is not prohibited by §3-101. (See also Opinion No. 80-22 which also addresses the issue of participation in legislative matters.)

We therefore conclude that the Requestor's participation in the Commission's deliberations and activities under the present statutory scheme would not in itself result in a violation of the participation provisions of the Ethics Law. We wish to make clear, however, that we do not conclude, as a general proposition, that legislative matters are always outside the scope of §3-101's disqualification provisions. Certainly we recognize that there may be circumstances where legislative actions would substantially impact identifiable economic interests. In these situations direct and active participation by legislative employees, members of the Governor's legislative staff, or executive branch officials and employees whose private interests would be affected by the legislation, could be viewed as the type of conduct intended to be prohibited by §3-101. Nor do we wish to imply that there are no circumstances where the requestor's Commission activity could violate the Ethics Law. In more particularized matters dealing with his mother's individual interests, for example, he would have to refrain from participation.

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

Date: April 6, 1981

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1 Other potentially relevant conflict of interest provisions here are sections 3-103(a) and 3-104 of the Ethics Law. However, as the Requestor would not appear to have an ownership or employment interest in his mother's pension, it seems unlikely that §3-103(a) would apply. (Section 3-103(a) prohibits ownership of or employment with an entity regulated by or having contractual relationships with one's agency.) Also, we do not believe that the §3-104 prohibition against use of prestige of office is at issue here, since finding that his office was intentionally used for private economic gain would probably be unlikely.