90.05

OPINION NO.90-5

An opinion has been requested regarding whether an Assistant Secretary in the Department of the Environment (MDE) may serve on a local Board of Health. Based on the description of the Board's activities and the situation as it currently exists, we advise that this service would not be barred by the provisions of the Public Ethics Law.

This request is presented by an official who serves in the Department of the Environment as Assistant Secretary for Toxics, Environmental Science and Health. She manages one of several programs in the Department. Other programs include the Air Management Administration, the Hazardous and Solid Waste Management Administration, the Water Management Administration, and the Sediment and Stormwater Administration. The Requestor oversees several programs that provide scientific and medical expertise regarding toxic waste and pollutants to the Department and to the public and private sectors. Her unit develops asbestos inspection and abatement criteria and also deals with lead poisoning issues. Information about industrial use of toxics and potential diseases and environmental impacts is collected and used by counties in a variety of ways, including the development of emergency response plans. The Assistant Secretary also oversees a health registries system for toxic substances, birth defects, cancer and occupational diseases, and, through the Center for Radiological Health, regulates all radiation sources in the State.

The Requestor advises that the programs she manages are Statewide programs that involve direct action with the persons involved without an intervening delegation to a local health department. Her unit makes no grants and its only regulatory authority is in the radiation area. The Requestor indicates that her office, for example, in the toxics area, develops policy and sets standards that could impact on the County, but the County is not involved in their development or permitting. The local department (which is a State agency) does interact with the Requestor, in a resource and consultant capacity. For example, the Requestor has apparently been to the Department to assist in investigations and reports regarding toxics in schools. The local Health Officer also advises that the Requestor or her staff may work with the local department in dealing with hazardous substance spills, underground storage tanks, or action involving improper disposal of hazardous materials. It should also be noted that the local department includes environmental functions and that in this regard the Health Officer is accountable to the Secretary of the Environment, who is the Requestor's immediate supervisor.

This request involves consideration of application of the Public Ethics Law (Article 40A, Annotated Code of Maryland, the Ethics Law) to the Requestor's appointment to serve on the County Board of Health. This Board is a citizen board established pursuant to the Health-General Article, §3-201, and is considered to be a local government entity under the Ethics Law. Section 3-202 of this Article provides that the Board will coordinate its activities with the local department, and will report on the sanitary conditions of the County whenever it deems it to be appropriate. Section 3-202 also provides that each county Board of Health may adopt and enforce rules and regulations on any nuisance or cause of disease in the county. The Board in this County includes four public members, two health professionals and one environmental health professional, all appointed on the nomination of the County Executive with the approval of the County Council. The Requestor, who is a medical doctor, was appointed as an environmental health professional, based on the recommendation of the Health Officer.

According to the Health Officer, the Board hears appeals of decisions the local Health Officer (a State official in a cabinet department) makes under the local code, particularly under the nuisance code and in cases involving animal shelter and kennel permits. The Health Officer indicates that the Board's appeal authority relates solely to Departmental actions under the local health code, and therefore would not involve any of the activities where the Requestor works with the Department in her official capacity. She indicates, however, that she does work with the Requestor in a variety of areas (as discussed above), and also that the Board can function as an advisor or advocate as to a broad range of health issues impacting on the County. The local Department may work with the Requestor's unit of MDE in collecting samples and in doing public information work in the hazardous and toxic substance areas, but as these involve State programs not delegated to the local Department, they would not be expected to come before the Board.

This request raises issues primarily under the outside employment restrictions of §3-103(a) of the Ethics Law. This section prohibits an official or employee from being employed by an entity that is under the authority of or has contractual dealings with her agency (subsection (a)(1)(i)), and from having any other employment relationship that would impair her impartiality or independence of judgment (subsection (a)(1)(ii)). Though State entities are not treated as entities for purposes of application of the strict prohibition of subsection (a)(1)(i), we have held that units of local government can be entities covered by this provision. Also, even though service is not compensated, the Board is not a purely advisory body; is an entity that exercises authority. §3-104, which prohibits a person from using her State position improperly in a relationship with other entities, could also be an issue in these types of situations.

We believe that there are actual and potential relationships between the Requestor's State agency and the Board that could bring this situation within the limitations of the Law. However, as the circumstances are currently described by health officials, and based on the views expressed by the MDE that the affiliation does not present any institutional issues as long as the Requestor abstains from any particular matters that involve the Department, we conclude that the service can be allowed. In this situation the Requestor's program activities are separated from the regulatory and contractual relationships between MDE and the County. Also, she would not appear to be carrying out functions in her Board position that would impact on her conduct of her official duties.

Our advice that this service is allowed assumes that the Requestor would not participate if any specific matter were to arise involving her agency, and would disqualify herself as to any advisory activities that address issues specifically within her MDE program's purview. If this disqualification becomes too pervasive for her to function effectively as a member of the Board, or if an adversary relationship were to develop between the Board and the State, then she would need to evaluate her continued service, both from a County point of view and also as to whether continuing would impair her functioning in the context of her State position.1

William J. Evans, Chairman
   Robert C. Rice, Ph.D.
   Barbara M. Steckel

Date: March 29, 1990

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1 The Requestor should be aware that this Opinion addresses only the application of the provisions of the of the State Ethics Law to this situation. Request should be made directly to the County Ethics Commission for advice regarding application of local provisions to these circumstances.