83.24

OPINION NO. 83-24

The Ethics Commission has received an advisory opinion request concerning whether an assessor in the St. Mary's County Assessments Office may serve on the County Planning Commission.

This request was presented by the Director of the Department of Assessments and Taxation (DAT), and involves an Assessor IV in the St. Mary's County Office. According to the DAT Director and the Assessor, in an office the size of the St. Mary's Office, this position is comparable to an Assistant Supervisor position. The Assessor thus supervises a team of assessors involved in assessments of agricultural and residential property in the County. He assists assessors in the field, reviewing assessments and providing problem-solving help, for example, where a field assessor has a problem with a deed or other documentation. He is also responsible for administration of the agricultural transfer tax program established in Article 81, §278F, Annotated Code of Maryland, and has limited review and assistance responsibilities regarding commercial assessments conducted by an assessment team from outside the County.

The assessments offices in the several counties are assigned responsibility under §232 of Article 81 to periodically assess the value of all real property within the jurisdiction. The purpose of the assessment is to determine the value for purposes of real property taxes levied by the local jurisdictions. The assessment is generated by actual review and on-site investigation of each individual property, and also takes into account cost data, sales analyses, and market value determinations. The Assessor also indicates that an assessment will include consideration of the zoned use of the property, generally based on the use established under the jurisdiction's master plan and zoning ordinances. If a property has a non-conforming use that existed prior to the adoption of the master plan, then the actual use is considered in the assessment process. According to the Assessor and others in DAT, this zoning and use information is taken as a given factual item by assessors, whose sole concern is the taxable value of the property rather than economic or social policies as to its use. They do not get involved in what the zoning ought to be.

This request arises out of a proposal that the Assessor be appointed to serve on the St. Mary's County Planning Commission. This entity is established by the County pursuant to Article 66B, Annotated Code of Maryland, to advise the County legislative body in comprehensive planning zoning within the jurisdiction. The St. Mary's County Planning Commission consists of seven members, one of which is a County Commissioner member. The members are paid $1,500 per year and meet two or three times per month. The Commission serves in an advisory capacity on zoning and site plans for industrial properties. The Commission also reviews the County's comprehensive plan and advises the County Commissioners regarding proposed amendments to the plan, as well as zoning changes, water and sewer decisions, recreation and park matters, and capital budget decisions. Applications regarding these matters are filed with the Planning and Zoning Office, whose Director is hired by the Commissioners and answers to both the Commissioners and the Planning Commission. A hearing is conducted by the Commission, which also receives a report from the staff, and makes its own recommendation and report to the Commissioners. The County Commissioners then hold another hearing and review all the materials, and make the decision.

According to the Director of the County Office of Planning and Zoning, the Planning Commission has final decision authority with regard to subdivision applications, and site plans for construction on commercial property. These approvals are made in open meetings of the Commission though they are not subject to the hearing process. The Commission's approval criterion is assurance that the proposed activity is consistent with the comprehensive plan adopted by the County Commissioners. In all of the commission's activities, the valuation of property and the impact of a decision on the tax base are relevant, as these are matters of significance to County development and its revenue base.

We have generally concluded that service on boards of private or public entities results in an employment relationship. (See Opinion No. 82-22.1 This situation would therefore raise issues under the outside employment provisions of §3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law). This section includes a strictly applied prohibition against employment with an entity that is under an individual's authority or that of his agency, or that has or is negotiating a contract with the agency (subsection (a)(1)(i)), and also an inconsistent employment provision barring any other employment that would impair an individual's impartiality and independence of judgment (subsection (a)(1)(ii)). Though the County Assessments Office and the Planning Commission both have the subject matter jurisdiction and other interests in the same thing, real property located in the County, it does not appear that they have any authority or contractual relationship with each other. Under these circumstances, it would thus seem that the strict prohibition of subsection (a)(1)(i) would not apply.

The issue, then, is whether the more general inconsistent employment provision in subsection 3-103(a)(1)(ii) would apply to bar this activity. We have read this provision as a complement to the strictly applied language of subsection (a)(1)(i), designed to deal with situations where contractual or authority relationships do not exist, but where there are relationships between official and private activities that would raise questions about a person's ability to carry out his official duties impartially. We have applied this provision in a situation similar to this one where an employee of the Regional Planning Council (RPC) wished to serve on two local planning boards within his home county. This activity was found to be inconsistent, since his county was one of several participants in the RPC, and the local boards were advisors to individuals who were members of the RPC, on matters that could come before the RPC.

In the situation presented here, there appears to be some relationship between the two entities, since they both have jurisdiction over and official policy responsibilities regarding real property within the County. Also, the Planning Commission apparently does consider assessed value of any given property in its policy deliberations, and the tax assessors, though performing a State function, are establishing a value for purposes of taxes levied by the County government that are the primary source of County revenue. On the other hand, the tax assessment and planning functions are different; the Planning Commission's duties are primarily advisory; and the direct jurisdictional and institutional relationships present in Opinion No. 82-22 do not appear to be present here. These factors are significant in view of the fact that subsection (a)(1)(ii) deals with employment that would impair an individual's impartiality and independence of judgment.

Taking all of these circumstances into account, and considering that the DAT Director does not believe that his type of intergovernmental service could create problems in DAT carrying out its mission in the County, we cannot conclude that involvement with the County's policy board on land use issues would necessarily be viewed as impairing the assessor function of impartial, and neutral, property valuation. Under these circumstances, and given the fact that this situation involves two public agencies having very different functions and goals, we conclude that the Assessor's service on the County Planning Commission would not be barred by §3-103(a)(1)(ii) of the Law.2

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

Date: July 27, 1983

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1 Except as otherwise specifically cited to the Maryland Register, Opinion citations are to Ethics Commission Opinions published in COMAR Title 19A.

2 The Assessor should also be aware that as a member of the Planning Commission he would be subject to the St. Mary's County Ethics Law. We wish to make it clear to him that approval of this activity by the State Ethics Commission would not necessarily bind the local Ethics Commission in applying its law to this situation.