86.28

OPINION NO. 86-28

An opinion has been requested as to whether a Public Defender attorney (the Requestor) located in Princess Anne, Maryland may lease two units of space in a personally owned office building to the Department of General Services (DGS) for use by the Juvenile Services Administration (JSA) and his own Office of the Public Defender, respectively.

The Requestor has been employed as the attorney in the Office of the Public Defender for Somerset County since 1973. His job as County Public Defender involves the provision of legal defense services to indigent defendants in criminal cases, including both adults and juveniles. He indicates that his involvement is as a court attorney and that as to juveniles, his representation is generally required only at the disposition stage of adjudication before a juvenile court judge. The Public Defender's office in Princess Anne currently operates out of office space in a building owned by the Requestor and used by him for his private law practice. Space in this building is also currently leased to the Juvenile Services Administration (a unit within the Department of Health and Mental Hygiene). This request arises out of the simultaneous interest of JSA in acquiring more space, and the determination by the Public Defender to establish a separate Public Defender's Office in Somerset County, expanding the space slightly in anticipation of additional litigation expected when a new State prison opens in the County.

According to the Deputy Public Defender, the agency has in the past sometimes functioned from the private law offices of the local public defenders, especially in rural areas where staff and workload were limited. As caseloads have increased, however, this practice has been phased out, and the Requestor and two others are the only local Public Defenders working out of private offices. The Deputy indicates that rental space is being actively sought for one of the others, and also that this would have been anticipated in Somerset County even without the proposed staff expansion. He says also that in the past space in some jurisdictions has been leased from the local Public Defender. This has caused some problems, however, and the Deputy indicates that the Office would prefer not to deal with its own employee if there are other alternatives. Most offices are located in State or county multi-service centers, and there are currently no private leases with Public Defender employees.

Somerset County was recently selected as a site for a new State prison. The Deputy Public Defender says that the resulting increased court caseload would create staff problems for his own office, given the amount of time involved in interviewing and consulting with prison inmates involved in matters in the local criminal courts. The decision was therefore made to employ a full-time investigator who would do interviews and document collection and free the attorney to concentrate on court work. This addition of one staff person, along with the general interest in discontinuing use of private office space, resulted in a determination to seek rental space in Princess Anne. The space needs were apparently defined by the Deputy and the agency's administrative officer along with the State Public Defender. They used State space needs formulas that define the square footage of space allowable for personnel positions or activities. The space needs thus defined were put in a letter to DGS requesting it to acquire leased space for the agency.

The Public Defender space request arose at about the same time that the JSA lease in the Requestor's building was about to expire. This lease began in 1978 or 1979 with an initial 2-year lease that has since been extended and renewed. The current JSA lease expires December 1, 1986; the agency has determined that additional space is needed and requested DGS to procure a lease for such space. The Requestor has bid on this procurement, offering a larger piece of space in his building recently vacated by a private accounting firm, and has also bid on the Public Defender space procurement, offering the space to be vacated by JSA. The proposals were being evaluated at the time the Opinion was considered, with award expected within a few weeks of that time as to the JSA space. Given the status of the prison construction, DGS advised that there is less urgency regarding the Public Defender space.

Section 3-103(a)(1) of the Public Ethics Law (Article 40A, §3-103(a)(1), Annotated Code of Maryland, the Ethics Law) prohibits an official or employee from being employed by or having a financial interest in an entity that contracts with his agency (subsection (a)(1)(i)). It also bars any other employment relationship that would be viewed as impairing the individual's impartiality or independence of judgment (subsection (a)(1)(ii)). Neither of the lease arrangements discussed here would involve a contractual arrangement directly with the Requestor's agency, since they would both be with DGS. The strict financial interest and employment provisions of §3-103(a)(1)(i) would therefore not apply here. The more general impairment prohibition of subsection (a)(1)(ii) is relevant, however. We have consistently held, in both the financial disclosure and conflict of interest areas, that the holding and management of real property for investment purposes results in the existence of a business entity in which the individual has both an employment and interest relationship. (See, for example, Opinions No. 85-3 and No. 84-27.) The Requestor therefore has an employment status as manager and lessor of his building, which would be barred by §3-103(a)(1)(ii) if it were viewed as impairing his impartiality and independence of judgment.

We have in the past applied this provision where there have been relationships between the private and official activities that would raise serious concerns about the person's ability to carry out his official duties impartially. In applying these principles to lease situations, we have said that such relationships are allowable as long as they do not involve the employee's own agency. (Opinions No. 81-40 and No. 80-12.) We have also on several occasions prohibited real property leases that involved dealings with the individual's own agency. (Opinions No. 80-11 and No. 85-12, for example.) As to the proposed lease of space for use by the Public Defender's Office, we believe that the inconsistent employment provision as interpreted by us would apply to bar this relationship. As the manager of the office, the Requestor would be the key person responsible for interacting with a landlord on a day-to-day operational basis. He would be responsible for assuring that the office facilities are adequately maintained and managed for the office's benefit in accordance with the terms of the lease. He would also be responsible to advise agency managers about the adequacy of the space when lease renewal or resolicitation is being considered.

In our view, the Requestor's duties would thus involve the lease arrangements for office space. In addition to the above concerns presented under §3-103(a)(1)(ii), this situation could therefore also present issues under other provisions of the Ethics Law. These include the §3-101 provision prohibiting official participation in a matter in which the individual has an interest, the §3-104 bar against use of prestige of office for one's own economic benefit or that of another, and the limitation in §3-105 against employment with an entity that has State contracts that are within the person's official duties. Moreover, we believe that leasing space to the State for use as one's own agency office presents the kind of appearance problem that is discussed in the legislative statement of policy in §1-102 of the Ethics Law. Though we do not question the integrity of the Requestor, or that he has his agency's convenience and interest as a goal, we must conclude that this relationship is one that presents the types of appearance and other concerns that are addressed in §1-102 of the Law and intended to be prohibited by §3-103(a)(i)(ii) and other provisions of the Law. We therefore advise the Requestor, his agency, and DGS that the lease of space by him to the State for use by his office would be prohibited by the Public Ethics Law.

As to the proposed lease of space to JSA, however, we reach a different conclusion. This agency is a unit in the Department of Health and Mental Hygiene, and is not affiliated with the Public Defender's Office. Its activities are not within the jurisdiction or authority of the Public Defender. His agency advises that there is not an adversary relationship between the Public Defender and JSA, and that the prosecutor in juvenile cases is the State's Attorney. We note, also, that this is an arrangement that has existed in the past and that both the Public Defender's Office and JSA managers advise that no issues or problems have arisen from it. In considering these views and the total circumstances of the situation, we cannot conclude that the JSA lease relationship proposed here would impair the Requestor's official duty to impartially carry out his Public Defender responsibilities. We therefore advise him and DGS that a lease as proposed between the State and the Requestor as to JSA space would not, as the situation is described to us, be inconsistent with the Ethics Law, though lease of space for his own agency would be prohibited.

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

Date: November 6, 1986