83.15

OPINION NO. 83-15

An opinion has been requested as to whether certain employees in the Department of Assessments and Taxation (DAT), paid in accordance with a county salary schedule, should be included as public officials required to file financial disclosure statements under Title 4 of the Public Ethics Law (Article 40A, Title 4, Annotated Code of Maryland, the Ethics Law). This request was originally presented in 1980 by an employee of the Montgomery County Office of DAT, whose annual salary at the time exceeded the base of a State grade 18.

By statute enacted in 1973 the local assessment offices, which until then had been autonomous local agencies, were made State agencies answerable to and part of the newly-created State Department of Assessments and Taxation (Article 81, §246B, Annotated Code of Maryland). Supervisors of Assessments, assessors, and other employees were, as a general matter, declared to be employees of the State of Maryland. However, apparently to take account of prevailing economic circumstances in the larger subdivisions, provision was made for individual employees to elect to remain in their local system for pay and benefit purposes. This option was allowable only for employees on board within a specified time in relation to the effective date of the Law. This county option was originally selected by employees in four subdivisions--Prince George's County, Anne Arundel County, Montgomery County, and Baltimore City. Through attrition since the Law became effective the number of county-paid individuals has decreased. For example, at the time of submission of this request only 3 supervisors continued under county pay; only one employee in Anne Arundel County was in the county system; of 25 assessors in Prince George's County, 18 were State and 7 were county; and in the Employee's section in the Montgomery County office he was one of 2 county employees in an office of 6.

According to DAT's Personnel Officer, these individuals are treated the same as other State employees for all purposes except computation of pay and benefits. The office has on several occasions sought and received Attorney General opinions confirming, for example, that for hiring procedures, State holidays, and grievance and disciplinary purposes the county option employees in local offices are State employees. As to computation of pay and benefits, DAT is provided by the counties with their respective salary plans. The actual salary assigned to an individual employee (based on the specific position filled by the employee) is extrapolated from the local plan, and provided to the State payroll and personnel departments.1 The State Department of Personnel (DOP) enters this salary in its data base for State employees, coding it as an "annual slope" salary.2

At the time this request was submitted the Ethics Law defined "public official" to include persons serving in the executive branch of State government who were classified or compensated at or above the salary assigned to the base level of a State grade 18. Based on DOP's treatment of "slope" salaries as "flat rate" salaries under Commission instructions, the Employee (and others similarly situated) was identified as required to file financial disclosure. The Employee's annual salary at the time ($19,843) exceeded the base of State grade 18 ($19,619). He was under the Montgomery County System a Draftsman III, local grade 16, a position corresponding to the State position of Assessment Cartographer, State grade 10. The salary range for a State grade 10 for the determinative period was $10,903 to $13,265. Thus, none of DAT's employees filling State system positions comparable to the Employee's were public officials required to file financial disclosure.

We considered this request in 1980, tentatively concluding that the Employee and other DAT personnel in his situation would not be treated as public officials, since their actual positions within the State system were not included within the disclosure system. At the time of our consideration, however, legislation was being considered to amend the definition of "public official." This legislation, subsequently enacted in the 1981 Legislative Session (Ch. 796, Laws of 1981), added to the compensation criteria additional standards relating to job duties and responsibilities. It also established an identification procedure involving review and recommendations by the Secretary of Personnel. The Commission and DOP have worked together to evaluate all positions in the State that involve classification or compensation over a State grade 18, to determine if these positions also involve the types of duties set forth in the amended statutory criteria.

This evaluation has included analysis of the particular situation and issues raised by the Employee in his initial request, as he and others in the affected local DAT offices continue to be identified as receiving compensation in excess of the current minimum ($22,883). Considering these DAT positions, primarily Assessors and Cartographers, the DOP Assistant Secretary working with the Commission on this effort indicated:

In our opinion, these positions should be exempted from financial disclosure to provide a uniform treatment for these positions. The salaries above the threshold exist because of the peculiar conditions associated with transferring these positions into State government from local government. Essentially, this has created temporarily, artificial salary levels. Because the "real" salaries for positions are below the threshold, we believe that all of these positions should be exempted from financial disclosure. I have discussed this recommendation with...[the] Director of the Department of Assessments and Taxation, and he concurs with this view.

We agree with this evaluation. In our view the reference in the Ethics Law to the State grade 18 was intended to reflect the legislative conclusion that positions at or above this level involve duties affecting State policies and decision-making that warrant disclosure by the incumbents. The amendments to the Ethics Law were designed in part to establish a mechanism for deleting from the disclosure program positions that do not meet this expectation, whose salaries reflect other considerations, and whose duties do not involve the type of policy and decision-making responsibilities thought to require disclosure. The Employee here fits within this categorization. His salary reflects legislative judgments regarding how to best transfer a program from local government to the State. His duties are the same as those of other DAT personnel at State grade level 10, well below the Ethics Law's grade 18 criteria and at salary levels significantly below that of the Employee. Under these circumstances, we concur with the DOP recommendation and conclude that the Employee is not a public official required to file financial disclosure. We have so notified the Director of the Department.

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

Date: May 6, 1983

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1 Benefits for these employees are also covered by the State, which, based on the local benefit plan, reimburses the locality for the employer contribution under such plans.

2 The "slope" categorization is a DOP mechanism reflecting a wide informal salary range within which any specific salary is allowable. It does not include established or automatic steps.