83.14

OPINION NO. 83-14

An opinion has been requested concerning whether a senior employee of the Board of Supervisors of Elections of large metropolitan county (the Board) is a public official required to file a disclosure statement under Title 4 of the Public Ethics Law (Article 40A, Title 4, Annotated Code of Maryland).

This request was first presented and considered in 1980, at the time when the Ethics Commission was in the process of implementing the State's financial disclosure program as it was originally enacted in 1979 (Ch. 513, Laws of 1979). The Requestor is the Chief Clerk for his Board, and pursuant to §9G(f) of the State merit system law (Article 64A, §9G(f), Annotated Code of Maryland) is considered to be part of the County's merit personnel system. Section 9G provides generally that permanent employees of the Boards of Supervisors of Elections "shall be in the classified service of the State and subject to the jurisdiction of the Secretary of Personnel." However, subsection (f) further provides that any county whose employees are covered by a merit system could apply to have its Board's employees continue in that system. Several counties, including the Requestor's, did apply and their plans were approved. Under this system the Requestor was in the County's merit system and, at the time of his request, was included in the County's financial disclosure program. The Requestor thus maintained that he was a County employee filing with the County and should not also be required to file disclosure with the State.

At the time of this request, Title 4 of the Ethics Law required annual disclosure by all public officials, generally defining "public official" to include persons serving in the executive branch of State government at a classification or salary at or above the base of a State grade 18. As the Requestor's salary exceeded this base rate, he was identified as a public official covered by Title 4. In our original consideration of this request we concluded that the Requestor's Board is an agency in State government and that since he met the statutory compensation criteria, his identification as a public official was proper. In order to avoid a dual County/State filing situation, however, Commission staff were directed to coordinate with County officials to determine if an adjustment could be made to avoid inequitable application of both laws to the Requestor.

Prior to completion of this process and issuance of an opinion in this request, however, the Ethics Law was amended to modify both the definitions of "executive agency" and "public official." (Ch. 796, Laws of 1981.) The definition of "executive agency" was modified to clarify that it includes any department, agency, commission, board, council or other body in State government which is established by law, and is not in the legislative or judicial branch. "Public official" was redefined to include job duties and responsibilities criteria along with the existing salary/compensation criteria. These amendments also added to the Law a procedure for identifying public officials, incorporating a mechanism for review and recommendation from the Department of Personnel (DOP).

We continue to believe that the Requestor's employment is with an executive agency as contemplated in §2-101(1) of the Ethics Law. His Board is established by general public law (Article 33, Annotated Code of Maryland) and functions subject to the direction of a State Administrative Board of Election Laws (the State Board) as part of a uniform Statewide election system. The Attorney General's office has in several opinions found the Elections Boards to be State agencies,1 indicating, for example, that local boards are required to follow the State holiday system and remain open on a day that would be a county holiday. (See Advice of Counsel, Diana G. Motz, Assistant Attorney General to Willard A. Morris, July 22, 1977.) We recognize that some county Boards opted under §9G for their employees to continue in the local personnel system. We believe, however, that this most likely reflects a legislative recognition of economic circumstances prevailing in some of the State's larger and more metropolitan counties. We do not believe it was intended to change the fundamental character or status of these entities as agencies of State government, carrying out a State function.

We therefore conclude that the Requestor, like the employees of other county Boards, is employed at an executive agency in State government as contemplated in §1-201(1) of the Ethics Law, and is a public official under §1-201(aa) if he meets the compensation and duties criteria set forth in the amended definition of "public official." Following passage of the 1981 amendments to this definition, the Ethics Commission developed a system for coordinating with DOP to evaluate application of these criteria and identify persons who are public officials under §1-201(aa). Under this system, the Department of Personnel communicated with agency officials in all State agencies (including Boards of Elections) requesting evaluation of job duties and responsibilities for personnel paid at the base of a State grade 18, to determine if they meet the other criteria of §1-201(aa). These criteria include, in part, that the official:

(1) is charged, individually or as a member of an executive agency, with decision making authority or acts as a principal advisor to one with such authority,

(a) in making State policy in an executive agency, or

(b) in exercising quasi-judicial, regulatory, licensing, inspecting, or auditing functions, and

(2) whose duties are not essentially administrative and ministerial,....

Following this procedure the Administrator of the State Board made recommendations to DOP regarding persons in the State elections program. The Requestor, whose position is described as "highly responsible administrative work in providing staff support and policy and program development to the Board...," was recommended for inclusion. The Department of Personnel subsequently transmitted a recommendation to the Commission, including the Requestor and identifying him as a principal advisor to a regulatory board.

We concur in these recommendations. The Requestor is a substantially compensated employee of a part-time citizen board involved in the important and sensitive process of running the elections in the State. He is the senior permanent full-time manager of the agency, and his job is described as "highly responsible," as involving provision of "policy and program development" support to the Board, and as having "wide latitude for independent judgment within the established policies of the Board." Under these circumstances we believe that the Requestor must be viewed under §1-201(aa) as an individual serving as a principal advisor to one who makes State policy and has regulatory authority, and that his duties are not essentially administrative and ministerial. We therefore conclude that the Requestor is a public official who is required to file State financial disclosure under Title 4 of the Ethics Law.2

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

Date: April 21, 1983

——————

1 Some of these early Attorney General opinions were under ethics provisions that dealt with individual positions and officials, and resulted in determinations that some employees could be covered by local systems even though board and commission members or other agency officials were treated as officials of the State. The Ethics Law, however, deals with agencies rather than particular officials. The Attorney General has consistently found local Boards to be State agencies, and under the Ethics Law, if an agency is a State agency, then all of its officials and employees are subject to the Ethics Law. (See 58 OAG 285 (1973) and 59 OAG 349 (1974).)

2 Since our original consideration of this request, the Commission and its staff have been working with counties and municipalities responsible for enacting local ethics provisions under Title 6 of the Ethics Law. All counties, including the Requestor's county, have submitted laws that have been reviewed by us. In this process we have consistently advised counties that their laws may not include officials or employees in State agencies that are covered by the State Law, and we have not approved any laws that purport to include such personnel. The law in the Requestor's county has been approved; it does not include his position. Though we are aware of some logistical problems in the county's first year of its new filing program, we understand that the county will take whatever steps are necessary to avoid imposition of a dual filing requirement on the Requestor.