88.03

OPINION NO. 88-3

A residential and agricultural tax assessor in a local office of the Department of Assessments and Taxation has requested an advisory opinion as to whether he may run for and hold a municipal office. Based on information regarding the individual's current assignment and duties, we advise that the Requestor's proposed political activity and public office would not be prohibited by the provisions of the Public Ethics Law (Article 40A, Annotated Code of Maryland, the Ethics Law).

At the time the request was submitted the Requestor was a tax assessor in Worcester County. He was a resident of Ocean City, a major municipality in Worcester County, and wanted to run for public office in that city. He has subsequently been transferred to the Wicomico County Assessments Office. He continues to be interested in local office in his home city. In his new position, the Requestor is an Assessor III assigned to do residential and agricultural assessments. This work basically entails the "mass appraisal" assessment process that has been the subject of several prior Commission Opinions.1 In this process, the assessor's job is to identify, based on a physical review of the property and sales transaction information, the full market value of each piece of property. The assessed value is then determined by application of a growth factor that is established by the State Assessments Office. The assessed value then becomes the basis upon which local governments, both county and city, define the tax rate.

The Requestor here is one of 5 residential/agricultural assessors in Wicomico County. He does not do commercial assessments. The office also includes one person primarily responsible for commercial assessments, the County Supervisor of Assessments, and an Assistant Supervisor of Assessments. The Requestor says that as a practical matter as a staff level assessor he has limited dealings with local officials. The local officials are, of course, interested in the tax assessment, as it defines their taxable base. Also, the records developed in the Assessments Office define the property lines and identify the property holders in a contemporary and up-to-date way, and the assessments staff is therefore a source of technical information about the property lines and ownership. The Requestor advises however, that though he has on occasion been called by a local official with a question about the property owner of record, or other miscellaneous questions, he does not generally participate in meetings or policy discussions with local officials.

The Requestor is interested in running for public office in the City of Ocean City. This is a City with a permanent population of approximately 5,000, located in Worcester County. It is not the county seat but is the largest incorporated municipality in the County, and has a substantial population increase in the summer months. It has a charter government with an elected Mayor and an elected Town Council of seven members, one of whom is the President. Given its significant summer tourism industry, the City regularly faces significant growth and development issues. The Requestor indicates that the local elections are non-partisan, and that he is considering filing in September for the regular Council election in the Fall of 1988. He also has suggested that he may want to run for Mayor or other office, and has asked several specific questions regarding the conduct of his campaign and his activities in office should he be elected.

The issues presented here relate primarily to application of the outside employment prohibitions in §3-103(a) of the Ethics Law, as well as the relationship between the provisions of the Ethics Law and the State Election Law (Article 33, Annotated Code of Maryland). We have considered this issue on several occasions in the past and have issued three formal advisory opinions. (Opinions No. 80-2, No. 82-34 and No. 85-13.) Basically, these Opinions reflect the Commission's conclusion that the Ethics Law and Election Law should be read together consistently to give each its effect. Under this principle, in our Opinion No. 80-2, we concluded that in the absence of specific reference in the Ethics Law, it would not be read to supersede the specific provision in the Election Law that officials and employees of the State may engage in political activity.

Opinion No. 80-2 also noted, however, that if a person were to be elected, service in the position could be considered as employment that would have to be evaluated within the context of §3-103(a) and in view of the individual's specific job duties and responsibilities. Subsequent Opinions No. 82-34 and No. 85-13 reflect the application of this principle to the situation of election to the House of Delegates (No. 82-34), and to election to a county council which was found to be inconsistent employment for a PSC hearing examiner (No. 85-13). Based on these formal opinion reviews, the Commission and its staff have provided advice informally to many individuals regarding their interest in running for public office. Informal advice, for example, was recently provided to an auditor in the Office of the Comptroller who wanted to run for a seat on the Baltimore City Council. This individual was a non-supervisory field auditor, who did not have control over his own assignments or the ability to impact on audits other than his own. Moreover, the Office of the Comptroller had advised that a conflict situation would not exist if he were assigned to another jurisdiction, and further, that this was an administrative approach that was acceptable to the agency. The individual was advised that his plans would not be prohibited by the Ethics Law, given his current geographic assignment, assuming that he did not audit persons having a special relationship with his proposed city office.

The State Director of Assessments and Taxation expressed concerns about the Requestor's initial interest in running for office in Ocean City while he was still an employee of the Worcester County Assessments Office. He has, since the initial submission of the request, transferred this individual to the Assessments Office in Wicomico County. He advises that the Assessments Offices function within strict geographical boundaries. As long as the Requestor continues to be assigned in Wicomico County, the Director does not see any way that his political activities in another jurisdiction would impact on or be impacted by his official duties. Apparently an assessor in the Requestor's position would have no way of influencing any assessment determination in Worcester County or the City of Ocean City. Though he does not as a general administrative matter like the idea of his assessors being engaged in politics, the Director has advised that in the current situation it would probably be acceptable.

In reviewing the circumstances presented here, we believe that the reasoning in prior Opinions when applied to this situation would allow the Requestor to run for office in Ocean City and to serve if he is elected. As long as his employment continues to be in a jurisdiction other than the county where he would hold elected office, and as long as he does not have constituents whose property is subject to his jurisdiction in Wicomico County, we do not believe that a relationship would arise that would present issues under the employment or other provisions of the Ethics Law. His situation in this circumstance becomes very like that of the auditor whom we advised by informal letter.

Our advice, of course, assumes that the Requestor would comply with the requirements of the Election Law that prohibits engaging in political activities during working hours. It also assumes that if elected, he would not use his State office to carry out City functions and that he would not assess the property of persons having a special relationship to his City activities. Also, if his work assignment were to be changed, we believe that there are sufficient questions presented under the inconsistent employment and prestige of office provisions of §3-103(a)(1)(ii) and 3-104 of the Ethics Law, and that further guidance should be requested.2

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

Date: February 22, 1988

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1 For a full and detailed description of this process, see Opinion No. 82-27.

2 The Requestor should also be aware that this Commission is in a position to advise him regarding the application of the Ethics Law. Questions regarding leaves of absence, annual leave or other personnel issues must be directed to his agency and the State Department of Personnel.