88.02

OPINION NO. 88-2

An opinion has been requested from an Assistant Attorney General in the Legislative Office of the Attorney General's Office concerning whether he may serve on the City of Annapolis Board of Supervisors of Elections if his duties include serving as counsel to the Baltimore City Board of Elections as well as providing legal advice to the legislature. Based on our review of his official activities as to the City Board of Elections and our understanding of the functions of the municipal elections boards, we advise the Requestor that his service as described would be allowable, but only if his official duties do not include serving as counsel to the Baltimore City Board, or otherwise involve responsibility for interpretation of the State election laws.

The Requestor has been employed since 1978 in the Attorney General's Legislative Office in Annapolis. A significant part of the work of his Office relates to the legislative function. When the Legislature is in Session the Requestor indicates that most of his time (and that of other attorneys in the office) involves responding to questions about legislation presented by members of the Legislature or their staff. The issues presented may involve the whole field of law and legislative activity, from questions regarding impeachment to sale of cemetery lots. The Office does not generally take the initiative in commenting on proposed legislation. The advice is most often by telephone, or can be by informal letter.

According to the Requestor, the Legislature usually passes between 800 to 1000 bills. All of them must be reviewed for constitutionality by the Attorney General, and it is the job of the Legislative Office to coordinate this review. Usually about one-third of the bills are actually reviewed by the Legislative Office, with the remainder distributed to other units of the Attorney General's Office. Comments and recommendations may be provided to the Governor regarding the legislation. About 20 bills presenting issues that could be a basis for a veto may be held for more complete review by the Attorney General and his direct advice to the Governor.

The deadline for signature of legislation is June 1, and after this date the Legislative Office handles other more general work, including opinions and work as counsel to some independent agencies. This includes the responsibility for providing legal support to the State Administrative Board of Elections (the State Board), as well as the Baltimore City Board of Elections. The responsibility for advising the State board has been assigned to another attorney in the Office. Since 1985, however, the Requestor has been the attorney assigned to the Baltimore City Board. This job tends to be most significant in connection with the four year election cycle, with the questions tending to come from the Board itself rather than from legislators or citizens, and also arising in the context of Board meetings.

During the 1987 election year, for example, the Requestor advised the Board on the following subjects: whether the Board could supply candidates with change of party forms to distribute to voters; the authority of the Board to rule on a proposed charter amendment on the ballot; Board action regarding a candidate whose check was returned for insufficient funds after the filing deadline; the authority of the Board to regulate campaign literature; the application of the one-year residency requirement for Comptroller and Council President positions; and advice regarding whether conviction of "storehouse breaking" is an infamous crime that would require removal of a person from the voter roll. In the context of a Board meeting, he also provided advice regarding a law suit filed against the Board on behalf of the State Republican Central Committee. This is an entity with which he might deal in his status as a member of a municipal board, and the litigation involved the party's ability to permit independents to vote in its primary, an issue that could also arise in municipal elections.

This request arises from the Requestor's interest in serving as a member of the Annapolis City Board of Elections. He says that he was approached to serve on this Board because of his expertise and experience with the State election law, since the Annapolis law is patterned very closely after the State law. The City Board, however, is independent of and not covered by the State provisions. Section 6 of the Annapolis City Code establishes a three-member Board of Supervisors of Elections. Two of its members are selected from the leading political parties of the State. They are appointed by the City Council from a list of four nominees provided by the city central committees of the respective political parties, and hold office for four years. The Board is generally responsible for all municipal elections to be held in the city or any part of it, including primary, general or special elections. It appoints and monitors the judges of elections, issues notices of elections and decides on polling places. The Requestor has been appointed to serve on the Annapolis Board as the nominee of one of the major parties.

The Requestor advises that in his regular duties with the Attorney General's Office he almost never has questions regarding election bills, as these are handled by the attorney who is assigned as counsel to the State Board. He says he has never had a question regarding municipal elections generally or the Annapolis election program in particular. A review of the election legislation introduced in the 1987 Session does not disclose any bills directed specifically at the Annapolis Board. Nor, apparently, would the Annapolis program be impacted by discussions regarding dual registration issues that arise where municipalities require separate registration in order to vote on municipal elections. The Annapolis Charter provides that registration with the County constitutes registration for municipal elections. The Board has an agreement with the County under which the County provides it with lists of registered voters prior to elections.

This request presents issues under the outside employment provisions of the Public Ethics Law (Article 40A, Annotated Code of Maryland, the Ethics Law). Section 3-103(a)(1) of this Law prohibits an official or employee from being employed by an entity that is under his authority or that of his agency, or that has contractual dealings with his agency (subsection (a)(1)(i)). It also bars any other employment that would impair the individual's impartiality or independence of judgment (subsection (a)(1)(ii)). Service such as this as a member of a local board has in prior Opinions been treated by the Commission as a secondary employment relationship even where it is not compensated, and even where it involves another level of government.1 As with the situations there, the Requestor's service with the Annapolis Board does not appear to involve an entity that is subject to his authority or that of his agency. The statutory and case law of this State establishes that the local election process is not covered by the State law which the Attorney General is charged to interpret.

We therefore do not believe that the strict outside employment provisions of §3-103(a)(1) of the Ethics Law would apply here, and the question is thus whether the inconsistent employment provision of subsection (a)(1)(ii) would apply. This is the provision considered in the three cases cited above, where we looked to the duties of the individual to determine whether there were any responsibilities that would be impacted by the private service. In the situations involving service on local planning boards (Nos. 86-16 and 83-24), the activity was allowed, while service by the Executive Director of the Regional Planning Council on local planning advisory committees was not allowed (No. 82-22).

In considering the standards we have previously applied in implementing the impairment provision of the Law, we must conclude that the Requestor's duties as counsel to the Baltimore City Board would be impacted by his service as a member of another local board operating under independent but similar statutory authority. In his State position the Requestor is one of the Attorney General's experts in a field of law that carries over substantially to the local sector. Even though the municipal board is not subject to the Attorney General's authority, it operates under a law that is patterned after and clearly very similar to the State law that it is his responsibility to interpret on behalf of the State.

In fact, the Requestor's presence on the Board has been sought for the very reason of his expertise in this area. Though he could be viewed as filling different roles as a board member in the City of Annapolis and the legal advisor in Baltimore City, we are concerned that as a practical matter the activities cannot be separated. The Requestor could be in the situation of considering similar issues in both capacities. He could thus be faced with the need to explain the different decisions of the two boards that at least on the surface may seem to be inconsistent. Given his expertise and the close subject matter relationship, we believe that his public service in one of these positions would necessarily impact on the other.

We therefore advise the Requestor that the impairment provisions of §3-103(a)(1)(ii) of the Ethics Law would apply to bar his service on the Annapolis Board of Elections for so long as he continues to be assigned duties as the legal advisor to the Baltimore City Board of Elections. If these duties are reassigned, and as long as he does not engage in election law activities in connection with the Office's legislative advice, then as a matter of the application specifically of the Ethics Law, the service would be allowable. However, should a situation develop where the Attorney General's Office is for some reason involved directly in a matter that would relate to Annapolis City elections (such as litigation involving the local board) then further guidance should be requested from the Commission.

We wish to make clear that whether the Office of the Attorney General is prepared to make this reassignment is totally a matter of its management and administrative determination. Also in this regard, we do not comment on any possible issues that could arise from the fact that the individual serves as a party nominee. Whether his service and identification with the political party position on the Annapolis City Board would render the service administratively inconsistent in terms of the nature of his duties in the Legislative Legal Office in and of itself is a matter for consideration by the Office of the Attorney General.2

M. Peter Moser, Chairman
   William J. Evans
   Betty B. Nelson
   Barbara M. Steckel

Date: January 19, 1988

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1 See, for example, Opinions No. 86-16, No. 83-24, and No. 82-22, in which issues regarding service with local government entities is discussed.

2 The Requestor should also be aware that as an official of the City of Annapolis, he could be subject to the ethics provisions enacted by the City. Questions regarding the application of these provisions to this situation should be submitted directly to the City Ethics Board.