86.16

OPINION NO. 86-16

An Opinion has been requested by the Administrator of the John F. Kennedy Highway (the Highway) as to whether he may serve on the local Planning Commission of the County where the Highway is located. John F. Kennedy Highway is a toll facility owned and operated by the Maryland Transportation Authority (MTA). In addition to the Highway, MTA maintains and operates four toll bridges, the Baltimore Harbor Tunnel and the Fort McHenry Tunnel. These facilities were constructed with revenue bond proceeds and maintained by the proceeds of tolls collected in connection with their use. The Highway begins just north of Baltimore and proceeds through Baltimore, Harford and Cecil Counties 42 miles to the Delaware State line. It has one toll plaza, and service areas with two restaurants and four gasoline service stations.

The Requestor's position as Administrator of the Highway is described as managing and directing the operation of the Highway, his duties including

responsibility for efficient, safe and uninterrupted traffic flow, accurate collection, recording, safeguarding and depositing of tolls, physical maintenance of the Highway and its bridges and interchanges and of administration, maintenance and service buildings, and the public relations incident to these operations, on an around-the-clock basis, 365 days a year.

The Requestor supervises approximately 200 employees, and is also responsible to advise the Authority on administrative, operational and maintenance matters and to participate in policy and program formulation.

This request arises from an invitation received by the Requestor to serve on the Cecil County Planning Commission. This is a local entity established by Chapter 45 of the Cecil County Code. The Commission, which has a Planning Commission Office headed by a Planning Director, has the authority to "review, evaluate and approve or disapprove plans for subdivisions in accordance with" the Code's zoning chapter and the County's subdivision regulations. Its other responsibilities are to advise and recommend regarding planning and zoning actions. The County has a separate zoning administrator and Board or Appeals, and zoning Ordinances, comprehensive plans and other land use actions are taken by the County Commissioners. The Requestor says he was invited to serve based on prior activities involving critical areas study, and also on personal acquaintance.

The County Planning Director indicates that the Commission's primary potential for interaction with MTA or the State Highway Administration would be where the Commission is reviewing a subdivision that fronts on a highway. He says that this has never been an issue as to John F. Kennedy Highway. As to situations where interaction may be required regarding sewer and water systems crossing the Highway, the Planning Director indicates that the Planning Commission establishes requirements for developers to have a sewer system, but does not have any involvement in how they do this. He does indicate that in terms of general planning his office may make recommendations as to where water and sewer systems should be placed, but that execution, including any coordination with Highway personnel, is the responsibility of the Public Works Department and the County Engineer. In the 12 years he has served as Planning Director, he indicates that he has never had occasion to interact with MTA regarding the Highway.

Based on his position description it would appear that the Requestor's job duties could bring him into contact with the County government or county service organizations. For example, he may be involved in dealings with permitting off-Highway towing operations and fire and ambulance services, and would handle inquiries and complaints from local groups and abutting property owners. His assigned duties also include establishing and monitoring agreements with the State, county and towns for water and sewer service supplied to the Highway's service areas, as well as the duty of reviewing and writing permits for utilities and counties to make crossings of the Highway.

As a practical matter, however, the Requestor says that his contacts with local officials are limited, and he has not dealt at all with county planners or the Planning Commission. For example, he may work with town officials in Aberdeen or North East where sewer lines are to be run under the Highway to a developer on the other side. Though arguably this type of project could involve some negotiation, the Requestor indicates that in reality these types of requests are not denied. Also, though he does interact with service entities such as fire and ambulance companies, these are mostly volunteer companies and this does not involve interaction with the county government. The Requestor states that he has not had to address issues related to development activities around the Highway, partly at least because the agency prefers not to have businesses or residences up too close to the Highway. His job would include evaluating offers to purchase land, and he has done this. He has never recommended sale, however, noting the MTA's general policy to retain land abutting the Highway as a buffer, or for future widening or highway beautification purposes.

The Requestor's proposed service on his county's Planning Commission raises outside employment questions under §3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law). Subsection (a)(1)(i) of this provision prohibits employees from being employed by an entity that is under their or their agency's authority or that has or is negotiating contracts with their agency. Subsection (a)(1)(ii) further bars any other employment that would impair the individual's impartiality or independence of judgment. The Requestor's service on the Planning Commission would result in an employment relationship even though it is not compensated, pursuant to our consistent holdings that service on operational boards creates the kind of obligation and duty of loyalty that results in employment for purposes of §3-103(a) of the Law.1 As there appear to be no contractual or authority relationships between the MTA and either the Planning Commission specifically or the County generally, we conclude that the strict prohibition of subsection (a)(1)(i) would not apply.

The question, then, is whether the more general inconsistent employment provision of subsection (a)(1)(ii) would apply. We have generally interpreted this provision within the context of the Law's appearance provisions (§1-201(b)), but have also looked specifically to the nature of the individual's State duties to determine how they could be impacted by the outside activity. We have in fact considered employment situations similar to this on two occasions. In the first (Opinion No. 82-22), we prohibited an employee of the Regional Planning Council (RPC) from serving on two planning advisory committees in his own county (an RPC member). The employee's duties involved providing support services to a regionally constituted planning organization. We were concerned there that the employee would on the local committees have been serving as an advisor to county officials and agencies regarding matters that would almost certainly come before his agency and could involve controversy with other county participants in the agency. He could also have been involved as an advisor on grant projects that would ultimately have to be assigned a priority in competition with grant proposals presented to the RPC by other agencies or counties. We advised that the individual's "participation in the decision-making process regarding the activities of one RPC member county is inconsistent with his duty to provide objective and impartial service to the Council as an entity."

In our view, the situation presented in the current request is more like the one presented in another similar Opinion (No. 83-24), involving the proposed service by an employee in the tax assessor's office on a local planning commission. While noting there that some common interests in real property in the county did exist between the two entities, we found no direct jurisdictional and institutional relationships between them. Given the very different functions and goals of the assessor's office and the Planning Commission, we allowed the activity, as we did not believe that involvement with the County's policy board on land issues would have been viewed as impairing the assessor function of impartial and neutral property valuation.

We believe that a similar approach can be applied here. Though the MTA does own land abutting the Highway, and there is occasional interaction with local governments, there does not appear to be significant jurisdictional and institutional overlap. The Planning Commission's authority is over subdivision plans, and the Highway does not envision development along its abutting property. The rest of the Commission's activities are advisory, and the Requestor's responsibilities are primarily operational. Nor do we believe that the facts that the Cecil County government is relatively small and that the Highway is a major transportation corridor crossing the County, in themselves present the inherent potential for conflict or appearance of conflict that was intended to be addressed by §3-103(a)(1)(ii).

Moreover, we have consulted with the Executive Secretary of the MTA (the Requestor's supervisor), who has indicated that the agency does not have a problem with the Requestor accepting this appointment. He says that the agency does not transact business with the local jurisdiction or the Planning Commission. The Executive Secretary says that he thinks it is of some value for agency employees to be active in the community, and is not concerned about the possibility that the Requestor could be viewed as a representative of the agency in these circumstances. According to the Executive Secretary, the Requestor's responsibility is to operate the Highway and this does not involve dealing with adjacent landowners or local planning agencies.

Under all of these circumstances, we do not believe that the Requestor's proposed service on the County Planning Commission is sufficiently related to his State duties with the Highway to create the kinds of conflict of interest concerns intended to be addressed in §3-103(a). We therefore advise that the Requestor's service on the County Planning Commission would not be inconsistent with the provision of §3-103(a)(1)(ii) of the Ethics Law.

Thomas D. Washburne, Chairman
   Reverend John Wesley Holland
   Betty B. Nelson
   Barbara M. Steckel

Date: July 8, 1986

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1 See, for example, Opinions No. 85-26, No. 85-19, No. 84-26, No. 83-24, and No. 82-22.