88.22

OPINION NO. 88-22

An opinion has been requested concerning whether area representatives advising with the Maryland Historical Trust are public officials covered by the Ethics Law, and if they are, whether they or entities with which they are affiliated may participate in certain Trust grant and loan programs. We advise the Trust that these individuals are not public officials covered by the provisions of the Law.

This request is presented by the Director of the Division of Historical and Cultural Programs in the Department of Housing and Community Development (DHCD), who also serves as the Executive Director of the Maryland Historical Trust (MHT or the Trust). The Maryland Historical Trust was established pursuant to Article 41B, §5-601 et seq., Annotated Code of Maryland in 1961 as a body corporate, an instrumentality of the State of Maryland located in the predecessor agency of the Department of Housing and Community Development. Its statutorily defined purpose is for "preserving, protecting, and enhancing districts, sites, buildings, structures, and objects significant in the prehistory, history, upland and underwater archeology, architecture, engineering, and culture of the State, and to encourage others to do so and to promote interest in and study of such matters."

The Board of Trustees includes 15 persons, three serving ex officio and 12 appointed by the Governor for 4-year terms, with the advice and consent of the Senate. Selection of members is directed to reflect as much as possible a broad geographic distribution within the State. The position of area representative is not a statutory position. It was created by the Trust in its By-laws in the early 1970's, with the purpose of expanding the geographical representation on the Trust to areas not covered by Trust members. The By-laws provide for appointment on an annual basis by the members of the Trust of up to eight additional persons. The individuals serve on Trust Committees, and participate in meetings of the Trust itself. They may vote and participate fully in committee meetings, and also fully participate in Trust meetings, except that they may not actually vote on official actions taken by the Trust.

Area representatives are generally selected from the membership of county advisory committees organized pursuant to the Trust By-laws. These groups provide advice and recommendations on local issues, including recommendations regarding grants. Usually when there is an opening for an area representative, a nominee is presented from this group. Selection of the representatives is solely within the discretion of the members of the Trust. Area representatives sometimes eventually become members of the Trust. According to the Director, about half of the recent appointees to the Trust have been area representatives.

This request arises from inquiries as to whether area representatives may participate in certain financial assistance programs managed by the Trust. Though we believe that the agency may as a matter of management policy want to establish its own ethics guidelines for these persons, we do not reach this question as a matter of the Ethics Law, as we believe that area representatives are not employees or officials within the jurisdiction of the Law or this Commission. Since these individuals are clearly not employees, the fundamental question is application of the definition of public official in §1-201(aa) of the Law. This section provides, in pertinent part, that a public official is any individual in an executive agency who is appointed to a board or commission, and who, as determined by the Ethics Commission, either has decision-making authority or serves as a principal advisor to one with authority in making State policy or exercising the functions listed in paragraph (ii)(B) of the section.

Executive agency is defined in §1-201(l) of the Law to include a "department, agency, commission, board, council, or other body in State government, which is established by law...." In an Opinion issued in 1980 (Opinion No. 80-049, 65 Opinions of the Attorney General 352 (1980)) the Attorney General advised the Commission that established by law is different from established pursuant to law and advised that entities established in a statute, regulations or a qualifying executive order are established by law, but that entities established pursuant to the general administrative authority of an agency are not. In our view, area representatives are not "appointed" to the Trust for purposes of this statute. The MHT itself has been reviewed by the Commission and determined to be an executive agency for purposes of the Law. We believe, however, that the group or unit in the Trust that consists of area representatives, even though it functions as an advisor to the Board, should be viewed as a separate group established pursuant to law rather than by law as contemplated by the Ethics Law.

Based on the statutory and administrative background of the inclusion of area representatives in the Trust's organization, and the definitions in the Ethics Law and interpretations of the Attorney General we advise the Trust that these individuals are not public officials under the Ethics Law or subject to the conflict of interest or other provisions of the Law. It should be noted, however, that the Department's officials are subject to the Law, including §3-104, which prohibits the use of the prestige of one's office for one's own economic gain or that of another. The Department and its staff should therefore take care that area representatives are not given any special treatment or personal advantage in receiving grants or otherwise participating in agency programs.

M. Peter Moser, Chairman
   Rev. C. Anthony Muse
   Barbara M. Steckel

Date: October 25, 1988