An advisory opinion has been requested concerning whether members of the Board of Supervisors of Elections of Baltimore County are exempt from financial disclosure under the Public Ethics Law by virtue of their being "local officials" pursuant to §6-202 of the Public Ethics Law (Article 40A, §6-202, Annotated Code of Maryland, the Ethics Law.

The Boards of Supervisors of Elections are established by general public law in Title 2 of Article 33, Annotated Code of Maryland. They are treated as State agencies connected with the State Administrative Board of Election Laws. See 58 Opinions of the Attorney General 285 (1973) and 58 Opinions of the Attorney General 343 (1973). Their members are appointed by the Governor and their employees are, as a general rule, considered to be State employees under Article 64A, Annotated Code of Maryland. The boards have thus been consistently treated by the Commission as executive agencies in State government pursuant to §1-201(1) of the Ethics Law. Thus Board members would, as appointees in an executive agency, be public officials required to file financial disclosure statements unless their Board is exempted by the Commission under §2-103(h) of the Law. Employees are also subject to the provisions of the Ethics Law.

In addition to being treated as executive agencies as a general matter, the Boards of Supervisors of Elections have also been reviewed in the context of the amended definition of "public official,"1 and their members have been determined to be public officials under the Ethics Law criteria. However, Baltimore County is in a unique situation as a result of the provision in §6-202 of the Ethics Law that members of boards and commissions funded in whole or in part by Baltimore County shall be local officials for purposes of financial disclosure. This provision was included in the prior financial disclosure law (Article 33, §29-10(b), Annotated Code of Maryland) and pursuant to it, members of Baltimore County's Election Board have submitted financial disclosure statements under the County's disclosure provisions. We are informed by the County Solicitor's Office that the disclosure requirements are extensive.

Section 6-202 of the Ethics Law provides that:

Notwithstanding any other provision of law, in Baltimore County the following officials shall be treated as local officials for the purpose of any financial disclosure requirements enacted by the Baltimore County Council:
* * * * *
(iv) Paid and unpaid members of boards of all State agencies funded in whole or in part by Baltimore County.

This provision was first enacted in 1975 as an addition to the non-mandatory local government provisions in the prior financial disclosure law. It was added to the Law apparently in response to an Attorney General's Opinion holding that members of Boards of Supervisors of Elections, because they were State officials at least potentially subject to disclosure in the State system (they were never actually brought into the program), could not also be local officials subject to disclosure under a county system. The Attorney General reasoned that:

persons holding "State positions"...as gubernatorial appointees, are not to be included within the phrase "local officials" by virtue of the authority given the Governor under Sections 29-11 to require financial disclosure of them. To hold that any person might be covered by more than one of Sections 29-3, 29-9, 29-10 and 29-11 would be to subject him or her to potentially inconsistent disclosure requirements, a result which we do not believe was intended. 58 Opinions of the Attorney General 343 (1973).

The provision was simply re-enacted when the Ethics Law was passed in 1979. Though the former law addressed by the Attorney General involved merely a potential for coverage of Election Boards as State officials, the new law specifically identifies the Board members of State agencies as public officials required to file with the State. However, there is no indication that the potential for conflict between the new law and the pre-existing Baltimore County provisions was addressed. Without evidence of a contrary intention, re-enactment of the prior law must be viewed as adoption and acceptance of the rationale and reasoning that originally supported the provision's exclusion of these officials from the State law. Moreover, the plain language of §6-202 states that officials of Baltimore County-funded boards, such as the Supervisors of Elections, are local officials for the purposes of the local disclosure law.

We therefore conclude that, though the Board is an executive agency in State government, its members are, pursuant to §6-202, local officials required to file local, not State, financial disclosure. In addressing this issue, the Commission questions whether this special treatment accorded Baltimore County is still appropriate. We believe that this approach is inconsistent with the general goal of uniform application inherent in the Ethics Law, and that it can result in difficult substantive and administrative problems. Not only are Baltimore County elections supervisors filing disclosure inconsistent with other Boards of Elections, they are also filing inconsistently with their own employees, who, as employees of an executive agency in State government, must file State disclosure if they meet the definition of public official in §1-102(aa) of the Ethics Law.

Also, we believe that the conflict of interest and financial disclosure provisions are intended to be complementary parts of a cohesive ethics program. Nevertheless, under §6-202, members of the Baltimore County Elections Board (as well as other similarly situated boards) will be filing under a local disclosure system, though they continue to be subject to the State conflict of interest provisions (Title 3 of the Ethics Law). We believe that these difficulties are unnecessary, as they reflect adherence to a rule designed to deal with a problem (exclusion from the State Law and potential lack of coverage under a non-mandatory local program) which no longer exists. We therefore recommend that the Legislature reevaluate this special Baltimore County provision to determine whether it continues to be appropriate.

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

Date: June 30, 1982


1 Sections 1-102(aa) and 2-103(h), as amended, Laws of 1981, Ch. 796.