87.19

OPINION NO. 87-19

A request has been presented concerning whether the Public Ethics Law (Article 40A, Annotated Code of Maryland, the Ethics Law) would prohibit Montgomery County from supplementing the salary of a State Department of Agriculture employee assigned to the Montgomery County Soil Conservation District. Based on the information provided by the Department and the Soil Conservation District regarding this program, we conclude that this situation presents a question for management and administrative decision by appropriate program officials, and does not present an issue under the Ethics Law.

This request was presented by the Secretary of the Maryland Department of Agriculture (DAGR), and involves a DAGR employee who serves as the District Manager of the Montgomery County Soil Conservation District (the District). Soil Conservation Districts are independent political subdivisions having significant substantive, fiscal and administrative independence. They were authorized to be established in 1937 by Act of the General Assembly that was part of a nationwide effort (encouraged by the federal government) for the establishment of independent local subdivisions to provide assistance and advice to localities and landowners in the areas of soil conservation, water conservation and protection, and related natural resources issues.

Current statutory authority for the districts is in the Agriculture Article, §8-301 et seq., Annotated Code of Maryland. Section 8-301 provides that 24 conservation districts are established, roughly contiguous with county boundaries, except in Frederick County, which has two districts. There is no district in Baltimore City. The districts are governed by boards of five supervisors, appointed as set forth in §8-302 by the county governing body or the State Soil Conservation Committee. The district is defined in §8-306 to be a political subdivision of the State, and a public body corporate and politic, exercising public powers. It has the authority to conduct surveys, investigations and research, to carry out preventive and control measures, to furnish financial aid in connection with erosion control and prevention operations, to develop comprehensive plans for conserving soil resources and controlling and preventing soil erosion within the district, and to approve or disapprove plans for clearing, grading, transporting or otherwise distributing soil.

Given the recent shift the bulk of the urban sediment control and storm water management from the Montgomery District to the County, the authority of this district is primarily agricultural. Like the other Maryland soil conservation districts, it functions as a joint effort of the State, local and federal governments. The State agencies involved in the program are the State Soil Conservation Committee and the Soil Conservation Administration of the DAGR. The Committee consists of six ex officio State officials, and five district supervisors, and assists in coordinating the work of the 24 districts. As authorized by the State budget, the Committee may employ clerical, administrative and technical employees to be assigned to the districts, and is also authorized to cooperate with local governments in providing personnel, space and other assistance to districts in performing their functions.

The Soil Conservation Administration is responsible for administering the DAGR's soil and water conservation program and implementing State policies that further the control of soil erosion and agriculturally related non-point source water pollution. It too provides resources to the 24 soil conservation districts, and provides financial assistance and State personnel to support programs that provide technical assistance to the agricultural community. The Administration has a Memorandum of Understanding with each of the districts which sets out the level of State funding, and the number and positions of State employees. It also sets forth the goals that the district will commit itself to achieving in connection with the Department of Agriculture's program in return for this support.

The Districts are also supported with funds and personnel from the county government and the federal government. Employees, clerical, technical and administrative, can be in any of four categories: State, federal, county or district. The mix varies from one district to another. The District Conservationist is always a federal employee, however, and basically has authority as to technical matters. The District Conservationist's authority is co-equal to the administrative authority of the District Manager, who can be an employee of any of the other supporting governmental entities. In some jurisdictions, he is a State employee, with his salary paid partly by the county, and in other jurisdictions, he is a county employee and the State contributes salary support. The proposed arrangement here would be unique, to the extent that it would involve a State employee whose total salary would exceed the current upper limit of the State salary, as a result of supplementation by the County.

The Montgomery County District Manager is a State employee, hired and answering generally for personnel purposes to the DAGR Soil Conservation Administration, though for substantive purposes he answers to the Board of Supervisors. His position is described as that of a Soil Conservation Specialist III, with a State salary range of $19,392 to $25,464. He has been with the Department for many years and has been at the top of his salary range for 5 years. This request arose as a result of an attempt to adjust his salary initiated by the Montgomery County Soil Conservation District Board of Supervisors. The situation presented here results from the fact that his salary seems to be below that of the District Manager in surrounding counties and also in comparison to other employees in his own district.

The suggested resolution of the District's concern about this situation is for the position to remain a State position, with the County supplementing the District Manager's salary by a specified amount per year. This request is presented to evaluate whether this would be allowable under the Ethics Law, given the potential program policy differences between the County and the State. According to DAGR staff there is apparently no significant direct regulatory authority by the District over the County. The Districts have not exercised the general land use authority granted by the statute, and the sediment control authority has not, as a general matter, been retained by this District. Moreover, §8-305 of the Law specifically provides that "any State agency, or any agency of any county, or other political subdivision of the State having jurisdiction over or charged with the administration of any State, county, or other publicly owned lands lying within the boundaries of any district, shall cooperate to the fullest extent with the supervisors of the district to effectuate the programs and operations undertaken by the supervisors pursuant to the statute."

The main concern is that there could be disagreements as to policy, and the question is whether County salary relationships would influence the individual's loyalty to his State employer. This is a particular question, apparently, with regard to legislative matters, where the agency may be opposed to legislation supported by the County or the District. The Administrator and all of the individuals with whom the issue has been discussed, however, indicate that there are seldom situations where there are direct conflicts with substantive decisions.

The question presented here is whether any of the provisions of the Ethics Law would apply to this situation to bar any arrangement that these governmental entities may make to resolve the District's concerns regarding the District Manager's salary. We have on several occasions addressed the question of acceptance by employees of payment for doing their State jobs from other entities. Particularly in the context of consulting and speaking activities, we have said that employees may not be paid by another person or entity to do their State jobs. (See, for example, Opinions No. 86-24, No. 83-4 and No. 83-9.) These Opinions have involved application of the inconsistent employment provisions of §3-103(a)(1)(ii) and the §3-104 prohibition against improper use of the prestige of one's State office.

We have also addressed situations involving relationships by employees with other governmental entities. We have said that the inconsistent employment provisions can be applied to service with other State agencies and have also said that County governments are entities with which secondary employment could be subject to the prohibitions of the Ethics Law. (Opinion No. 86-18, for example.) In our view these provisions and principles are not appropriately applied in this situation, particularly in view of the clear intention of the enabling statute that this be a cooperative effort financed and staffed cooperatively by all of the interested agencies at the various levels of government. The fact that there are other persons in comparable positions that are jointly funded is also a factor in this situation, as is the fact that this is a common approach in other joint State/County programs.

In our view the salary arrangement suggested here would be viewed as a sharing in compensation costs. It does not present the type of outside employment relationship intended to be addressed by the Ethics Law. This cost sharing plan can only be implemented with the cooperation of the District Manager's State employer. Though there could be substantive conflicts in programmatic views, these appear no different than those that occur in other similar situations and that are in part built in to the statutory framework of this program. We therefore believe that the question of salary and other support is a programmatic and administrative matter to be resolved by the employee's agency and that an agreement developed that is consistent with applicable policy and administrative provisions of this program does not present issues under the Ethics Law.

M. Peter Moser, Chairman
   William J. Evans
   Reverend John Wesley Holland
   Betty B. Nelson
   Barbara M. Steckel

Date: October 27, 1987