82.22

OPINION NO. 82-22

An Opinion has been requested as to whether the Executive Director of the Regional Planning Council (the Requestor) may serve on a local advisory committee that is involved in activities that are subject to his agency's consideration.

The Requestor is a resident of Harford County and indicates that he has been invited to serve as a member of two local advisory committees, the Planning Advisory Board of Harford County and the Economic Development Committee of Harford County. Neither appointment would involve compensation, and the Requestor expresses his interest in accepting one of the appointments as "fulfillment of his civic duty." Both entities are advisory organizations providing advice and recommendation to the County Executive and county planners.

The Regional Planning Council (RPC or the Council) is a planning agency covering Baltimore City and Anne Arundel, Baltimore, Carroll, Harford, and Howard Counties, and is described in the Maryland Manual as "in effect a council of local governments with State participation. " Maryland Manual, 1981-82, p. 273. The RPC was established by Act of the Legislature and its authority and responsibilities set forth in Article 78D, Annotated Code of Maryland. It is composed of 23 members representing the respective counties, several State agencies and four members appointed by the Governor. Consistent with §4(d) of Article 78D, the Council's membership includes the County Executive of Harford County, as well as a member of the Planning Advisory Board of Harford County.

The RPC responsibilities include preparation and adoption of a suggested general development plan, which may be adopted by any unit of government within the area; conducting research and studies; providing advice and recommended standards to units in the area; and developing recommended capital improvement methods. Any development in the area affecting more than one unit must be reviewed by the Council, though the unit agency or body responsible for the proposed development may proceed without RPC approval. The Council appears to have no regulatory authority, though it does make grants to local entities. The RPC also is responsible for conducting reviews under federal OMB Circular A-95.

In addition to its substantial planning, review and advisory responsibilities, the RPC plays a significant role in regional transportation planning. The Requestor indicates that to some extent the Maryland Department of Transportation is bound by determinations of the RPC in making transportation construction awards. The Council also manages a regional housing program, and is responsible for grants and planning regarding areawide water quality activities; it also has economic forecasting responsibilities and manages a minority real estate training program. The Requestor states that the counties represented on the Council may have disagreements as to planning matters within RPC's jurisdiction, and that the Council often functions as a clearinghouse for resolution of these disputes. The Council also has substantial responsibility for prioritizing and issuing planning and other grants among the various counties. The Requestor indicates that this process does not necessarily involve a simple formula, but evaluation of many factors and exercise of substantial discretion.

The primary question here is application of the outside employment provisions of §3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law). This section prohibits an official or employee from being employed by or having an interest in an entity that is under the authority of or has contractual dealings with his agency. Subsection 3-103(a)(1)(i). It also bars any other employment relationship that would impair the official's or employee's impartiality or independence of judgment. Subsection 3-103(a)(1)(ii). As the Requestor's service on either of these boards would be without compensation, it is unlikely that he would be viewed as having an "interest" in them for purposes of §3-103(a). However, we believe that his relationship with such an entity should be viewed as employment for purposes of §3-103(a). We have generally taken a broad view of the concept of "employment," concluding that non-compensated service on a private board or commission could be viewed as employment where the service necessarily called for some loyalty, commitment, or fiduciary responsibility. Opinion No. 80-4 and Opinion No. 82-2. Thus, we conclude that the Requestor's service on and duty of loyalty to these entities would be an employment relationship as contemplated in §3-103(a).

Considering application of the two limitations of §3-103(a) to this situation, we do not believe that either of these entities should be viewed as under the authority of or having contractual dealings with the RPC. The Requestor indicates his belief that both of these boards fulfill purely advisory functions and do not directly receive grants or fulfill responsibilities subject to RPC's authority. They do provide advice to local executives and planning agencies that have substantial grant relationships with RPC and that also are in some cases bound by RPC decisions regarding activities within their jurisdiction.

However, even if the advisory status of these boards takes them out of the authority and contractual provisions of §3-103(a)(1)(i), we believe that the Requestor's affiliation with them must be viewed as an employment relationship that would impair his impartiality or independence of judgment under §3-103(a)(1)(ii). He would, on either of these Boards, be serving as an advisor to county officials and agencies regarding matters that would almost certainly come before the RPC and could involve controversy with other counties. He could also be involved as an advisor on grant projects that would ultimately have to be assigned a priority in competition with grant proposals requested by other agencies or counties. Also, as a member of the Planning Advisory Board, the Requestor would be working with one individual who is in turn a member of the RPC, and providing advice to the Harford County Executive, also an RPC member.

The Commission has considered the application of §3-103(a)(1)(ii) in several contexts. See our Opinions No. 81-28, No. 81-41, and No. 81-45. We have generally viewed this section as a complement to Sec 3-103(a)(1)(i), to deal with situations where the contractual and authority relationships do not exist, but where a clear and serious concern exists as to the ability of the official or employee to engage in the outside activity and still maintain his impartiality and independence of judgment.

We believe that the circumstances presented here come within the proscription of §3-103(a)(1)(ii). Though these local boards may not be under the authority of or contract with the RPC, they both appear to function as significant advisors to officials that serve on the Council as to matters that are likely to come before it. Though we understand the Requestor's interest in providing service and expertise to his community, we believe that his participation in the decision-making process regarding the activities of one RPC member county is inconsistent with his duty to provide objective and impartial service to the Council as an entity. We therefore advise the Requestor that his service on either of these entities would be a violation of §3-103(a)(1)(ii) of the Ethics Law.

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

Date: May 26, 1982