82.24

OPINION NO. 82-24

An opinion has been requested concerning the extent to which the post-employment provision of §3-103(b) of the Public Ethics Law (Article 40A, §3-103(b), Annotated Code of Maryland, the Ethics Law) limits the activities of a former State tax assessor now employed by the Rouse Company.

This request is presented on behalf of the Subject, formerly an assessor in the Howard County office of the State Department of Assessments and Taxation (DAT). This Department was established in Article 81, §231A, Annotated Code of Maryland, with general statewide responsibility to conduct assessments of real property in the State. The program for assessment of real property is a decentralized function carried out primarily in State assessment offices located in the 23 counties and Baltimore City. The real property assessment is generated by actual review and on-site investigation of each individual property, and involves commercial and investment as well as residential property.

The assessment process carried out by DAT involves what agency staff describe as "mass appraisal." DAT assessors individually prepare sales analyses, market value determinations, cost data, and assessment for each and every piece of real property within the State. The development of an assessment involves an individual site review, but because of the tremendous volume of units involved this is often brief. In the interest of assuring uniformity the DAT assessors are generally bound by DAT guidelines such as cost manuals and formulas, though some aspects of the process involve the use of judgment and individual expertise.

In addition, all assessments generated for a particular calendar year are based on adjusted market and other data of the preceding calendar year; all assessments reflect a value of the property as of the same date as all other property. For example, all assessments to be issued as of January 1, 1983 will reflect the assessed value of the property as of January 1, 1982, and be developed based on market and cost data for calendar year 1981. Thus, each property assessment is based on facts relevant as of a particular "date of finality." Assessments are effective for three years, with each assessment taking account of anticipated increased value over the assessment period. Objections to a particular assessed value may be made during each year that the assessment is in effect.

The Subject is a former tax assessor assigned to DAT's Howard County Assessment Office. His job responsibilities included assessing and supervising others in assessing commercial and industrial property; he did no residential assessments. His geographical area of responsibility was Howard County, an area in Maryland where the Rouse Company (developer of Columbia) has substantial property interests; in his official responsibilities, the Subject was responsible for assessment of Rouse Company property. He is currently employed as a real property tax representative for the firm and it is anticipated that he would be involved in representing the Rouse Company's interests in the tax assessments of its Howard County property. The company owns shopping centers and developments all over the country, and has approximately 50 commercial properties in Howard County; it is anticipated that the Subject would ultimately commit a substantial amount of his time to Rouse's Howard County properties.

The issue here is application to the Subject of the post-employment provisions of §3-103(b) of the Ethics Law.1 This section provides that

a former official or employee... may not assist or represent another party other than the State for compensation in a case, contract, or other specific matter involving the State government if that matter is one in which he significantly participated as an official or employee.

As the Subject is a former official and he proposes to assist another party (the Rouse Company) in matters involving the State (tax assessment actions), the prohibition of §3-103(b) would apply here to the extent that the matter is a specific one in which he participated significantly as a State employee.

We have considered the concepts of "matter" and "participation" in connection with application of §3-101 of the Ethics law and have generally followed the definitions applied under the Code of Ethics (predecessor to the Ethics Law, see Title 19 COMAR). Thus we have viewed the term "matter" to include "any proceeding, application, submission, request for ruling, or other determination, contract, claim, case, or other such particular matter...." "Participation" has been read to include acting or failing to act in one's official capacity, "personally and substantially, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise." Opinion No. 80-17.

Also, following the language of §3-103(b) calling for "significant" participation in a "specific" matter, we have applied this prohibition where the official participation involved considerable responsibility and authority, and where there was near identity between the matters involved. Opinion No. 81-15 (8 Md. R. 918 (May 15, 1981)). The prohibition was found not to apply where the former employee was only tangentially involved in a general grant program and his subsequent employment involved specific grants developed by an implementing grantee. Opinion No. 80-1.

Applying these principles, we conclude in this situation that the "specific matter" here is a particular assessment of a particular piece of property for which the former employee was responsible either directly or through supervisory duties. Thus, the Subject's assistance to Rouse is barred as to any proceeding involving a particular assessment in which he participated either directly or as a supervisor; this would include any appeal during the second or third assessment year, and any judicial or other proceeding growing out of a particular assessment action, however long ago the assessment was done. Following the approach taken in earlier opinions, however, we believe that the Subject's participation in matters relating to an actual assessment in which he was not involved is allowable, even as to property with which he had been involved at some time in the past. This conclusion is consistent with statements of the State Supervisor of Assessments that subsequent assessments, since they have different finality dates, are unlikely to be in any way related to a prior assessment.

The opinion request in this case suggests the establishment of three criteria for applying the §3-103(b) prohibitions to the Subject's Rouse work: that the assessment be currently in effect, that it be one for which the Subject was responsible, and that it involve Rouse Company property. The suggestion was that, as to any assessment that does not meet all of these three criteria, the Subject would be able to "participate fully in regard to such assessments and any and all matters arising (directly or indirectly) in connection therewith." We believe that this approach includes extraneous criteria, and also is too broad. We wish to clarify that neither the timing of an assessment nor the status of the property ownership are determining factors in evaluating application of §3-103(b). The key is whether the Subject was involved in or responsible for the assessment which is the subject of Rouse Company concern.

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

Date: May 26, 1982

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1 We have not in this Opinion addressed the issue of whether the Subject had a participation problem under §3-101(a)(4) of the Ethics Law, arising from work on Rouse property while he was negotiating employment, as he has indicated that he was not involved in any assessments of Rouse Company properties while he was negotiating employment with the company.