82.25

OPINION NO. 82-25

A request has been received for an advisory opinion as to whether the Upper Potomac River Commission is an executive agency as contemplated by §1-201(1) of the Public Ethics Law (Article 40A, §1-201(1), Annotated Code of Maryland, the Ethics Law).

The Upper Potomac River Commission (UPRC) is a bi-county agency established by Act of the General Assembly in 1935, and functioning in Allegany and Garrett Counties. It is a body corporate that fulfills two basic functions: it operates the Savage River Dam (Garrett County) in regulating the flow of the Upper Potomac River; and it operates and maintains a waste treatment plant near Westernport, Maryland (Allegany County). One of the three UPRC members is appointed by the Governor; the other two are appointed by the County Commissioners of Allegany and Garrett Counties, respectively. The UPRC source of funds as to its Savage River Dam activities is the Allegany County government. Its waste treatment plant operations were funded initially by revenue bonds authorized in its enabling legislation and subsequently by fees collected from the users (primarily from Westvaco Corporation, a local pulp and paper operation). It has no taxing power and receives no funding support from the State treasury.

Section 1-201(1) of the Public Ethics Law defines an executive agency as "a department, agency, commission, board, council or other body in State government, which is established by law but which is not part of the legislative or judicial branch and has not been exempted by the Commission." The UPRC is established by law enacted by the General Assembly, initially in the 1935 Acts of the General Assembly, Ch. 49 (Savage River Dam authority) and subsequently in the Laws of 1957, Ch. 560 (waste treatment plant authority). It would therefore appear to be an executive agency if it is viewed as being "in State government."

Though the UPRC has some indicia of a local agency, we believe that those characteristics that link it to State authority are more significant. It owes its existence solely to the enactment of laws of the General Assembly, and is identified in the Natural Resources Article, §1-201, as a unit in the State Department of Natural Resources. It performs two peculiarly governmental functions in a geographical area covering more than one county. One of its members is appointed by the Governor. Moreover, in a 1942 case involving an issue of tort liability of the agency, the Maryland Court of Appeals held that the UPRC could not be sued in tort, as it functioned as an instrumentality of the State whose sovereign immunity had not been waived. Marion Lohr v. Upper Potomac River Commission, 180 Md. 584 (1942). We therefore believe that the agency should be viewed as "in State government" for purposes of the Ethics Law.

Subsequent to our initial consideration of this request, the Ethics Law was amended to provide in §1-102(aa) and 2-103(h) for identification of public officials under the Law, using a procedure involving the Secretary of Personnel and criteria set forth in §1-102(aa). In accordance with this procedure, recommendations were sought from cabinet departments by the Department of Personnel as to whether members of boards and commissions carry out decision-making or advisory duties that would bring them within the Law's definition of public official. Both the Departments of Natural Resources and Personnel recommended inclusion of UPRC members as public officials. In view of these recommendations and our earlier evaluation, we have therefore determined that the UPRC is an executive agency in State government, and that its members are public officials subject to the provisions of the Ethics Law. We have so notified the agency through correspondence with the Secretary of Natural Resources.1

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

Date: June 30, 1982

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1 This request also includes a request for exemption for UPRC members from the financial disclosure requirements of Title 4 of the Ethics Law. The request for exemption is not being resolved here as exemption requests are being considered in an administrative procedure consistent with the amended provisions of §2-103(h) of the Law.