93.12

Opinion No. 93-12

A request has been submitted by a County ethics commission requesting our advice as to whether Assistants in the local Sheriff's Office are public officials or employees in State government and directly subject to the provisions of the Maryland Public Ethics Law (Article 40A, Annotated Code of Maryland, the Ethics Law). The County has a local ethics law and apparently in 1992 identified 4 Assistant Sheriffs for inclusion in local disclosure. These officials and the Sheriff maintained that as they are not County employees they cannot be subject to these requirements. They point out that their positions are established under §2-309 of the Courts and Judicial Proceedings Article, and also cite a recent Court of Appeals case (Rucker v. Harford County, 404 Md. 399 (1989)). We advise that these Assistants and other employees of the Office are not officials or employees of the State directly subject to the financial disclosure and other provisions of the Ethics Law administered by this Commission, but are required to be covered by the County ethics law.

The Sheriff's Offices are established in Article IV, Section 44 of the Maryland Constitution, which provides for the election to the office of Sheriff of a person meeting certain eligibility requirements, for a four-year term. This official is to "exercise such powers and perform such duties as now or may hereafter be fixed by law." The section further provides that the "Sheriff in each county and Baltimore City shall receive such salary or compensation and such expenses necessary to the conduct of his office as may be fixed by law." Section 2-309 of the Courts and Judicial Proceedings Article of the Annotated Code implements section 44, addressing the staffing and related aspects of the Sheriff's Offices on a county-by-county basis. The section sets the Sheriff's salary as to each county but varies considerably in detail as to salary, staffing and other organizational matters.

The specific subsection of §2-309 pertaining to this County establishes the Sheriff's salary and makes provision for certain expenses and other reimbursement. It establishes four Assistant Sheriff positions and defines certain parameters of these positions. Other employees are to be hired by the Sheriff and serve at his pleasure with compensation and expenses paid by the County. Civilian employees are to be in the County personnel system, as are all commissioned full-time employees except the Assistant Sheriffs. Commissioned full-time employees are subject to the County's labor code for collective bargaining purposes as to compensation and other fringe benefits. The Sheriff and his Deputies are authorized to carry out law enforcement activities, and have the powers of arrest and service of process, and responsibility for the care and supervision of prisoners, the security of State and County courts and the transportation of legally detained persons.

The Sheriff advises that neither he nor the Office generally are in any way subject to the authority or direction of any executive agency at the State level. Nor is any person in the Office appointed by or otherwise accountable to the Governor or any other Executive Branch official in State government. The Office's space and supplies are provided by the County, and all of its procurement activities are through the County purchasing system rather than under the State procurement law. It is not apparently subject to the State Documents law or public information system, though some of its records are criminal information records that are part of a Statewide system managed by the Department of Public Safety and Correctional Services. None of the Office's employees was included in the furlough program applied to State employees in 1992. As noted above, compensation and benefits for most employees are subject to collective bargaining with the County Executive. All salaries and benefits are funded by the County.

The operative provisions in Titles 3 (conflicts), 4 (financial disclosure) and 5 (lobbying disclosure) of the Ethics Law apply to officials and employees. There are two categories of officials. State officials are defined in §1-201(hh) to include elected and other constitutional officers, including Sheriffs. Public officials are defined in §1-201(bb) to include certain judicial and legislative employees, and individuals "in an executive agency" who meet certain salary and duties criteria. Employee is defined in the Law (§1-201(i)) as "any person, other than a State or public official employed by an executive agency or the legislative branch or in the judicial branch of the State government." Executive agency, pursuant to §1-201(l)(1), means "a department, agency, commission, board, council, or other body in State government, which is established by law but which is not a part of either the legislative branch or the judicial branch."

These definitions have formed the basis of Commission determinations regarding its jurisdiction under the Ethics Law, particularly to a variety of agencies that function in various levels of government in the State. As an initial matter, the Commission took a different approach than had been followed under previous ethics programs. Prior to enactment of the current Law in 1979, the Attorney General had issued several opinions dealing with application of ethics provisions to particular officials in specific positions. Based on the definitions of the Ethics Law, however, the Commission has looked to the initial determination of whether the agency or unit is an executive agency in State government, since except for State officials, inclusion as an employee or official flows from an individual's affiliation with an executive agency.1

In considering the jurisdictional question in the early implementation of the ethics program, the Commission took into account the many Attorney General opinions as well as court opinions that dealt with particular officials and some agencies. The result of this review is a series of factors that have been applied in various combinations in evaluating particular entities or officials. They include, for example, consideration of who appoints or elects and who has removal authority; the statutory source or power of the entity and its funding source; the level of government within which the entity principally functions, and its geographical jurisdiction; the persons, groups or other governmental entities to which the entity is accountable; the nature of the functions performed as either State or local and the need for uniform Statewide or multi-countywide performance of such functions; whether the entity's officers are viewed as representing primarily State or county interests; answerability of the entity for budget purposes as either to State or local budget agencies; and the need for uniformity in ethics or other provisions at issue.

The Commission took account of these factors in evaluating the total situation to determine coverage as to particular agencies, within the general context of a decision regarding whether the agency was in State government. Its approach was to focus on those factors that related to the operational and functional aspects of the entity as a governmental agency, rather than on the duties and functions of particular officials. It also looked for guidance to the purposes of the Ethics Law as set out in §1-102 of the Law, to hold officials accountable for the conduct of State and local business. Looking to the nature of the business conducted, the parties involved, and the level of government with which the entity interfaced was thus viewed as of key importance. Attention was also directed to the substantive provisions of Titles 3, 4, and 5 of the Law to evaluate the source of potential conflicts, and the need for disclosure in view of the local or State character of the entity's activities.

In this review process, local entities that function primarily within the local government were found, despite State legislative control, to be local. As to local offices of the constitutional officers covered as State officials, the State Law has been applied to all of the employees in both the Registers of Wills Offices and the Clerks Offices, as these offices are treated as judicial and the Ethics Law specifically includes all persons who are employees of the judicial branch. Employees in State's Attorneys Offices have been viewed as performing nonjudicial functions and, consistent with application of the Commission policy and other factors, found not to be executive agencies in State government. Since the Sheriff's Office is established in Article IV of the Constitution, the possible inclusion of these Offices as judicial was considered. Based on advice of the Attorney General, and court cases and commentaries that the Sheriffs' functions were executive and administrative rather than judicial, it was concluded that the Sheriffs' Offices were not included in the State program as judicial offices. Nor, based on application of the several factors discussed above, was it concluded that the Sheriffs' Offices were executive agencies in State government.

Thus, for the almost 14 years since enactment of the State ethics program, local Sheriffs have been covered as State officials, but otherwise the Sheriff's Offices have been treated as local agencies. (Note that Baltimore City Sheriff's staff have been considered State by virtue their inclusion in the State personnel system pursuant to Article 64A, §9E.) The Ethics Commission has not taken jurisdiction for purposes of providing conflict of interest advice or enforcement action, nor has it required financial disclosure of any personnel in the local Sheriffs' Offices except the Sheriff. The Legislature has generally been aware of this approach and there has been no attempt to change it.

We do not believe that a change in this 14-year policy and practice is warranted here, either based on the court decision in Rucker or on the statutory approach to the Assistant Sheriffs in §2-309. Rucker involved an individual who was an innocent bystander injured by Deputy Sheriffs and other law enforcement officers in pursuit of a vehicle operator being pursued by the officers. Suit was filed in federal court and the Maryland issues certified to the Court of Appeals. The question was whether the State would be held liable for the actions of the Sheriff's personnel under the Maryland Tort Claims Act, which applies only to State personnel. The State defendants and the County defendant each denied liability based on the argument that the Sheriff's employees were employed by the other level of government.

The court concluded that under Maryland law, the Sheriffs and Deputies in the County were officials or employees of the State for purposes of application of the provisions of the Tort Claims Act, stating that the sources of the compensation to the Sheriff and his Deputies was not dispositive of the agency's official status. The court generally reviewed several cases involving particular agencies and officials, recognizing that they were found to be State agencies despite substantial funding from the localities. It noted, however, that "there is no single test for identifying an official or office as State or local." It relied strongly on the fact that the authority, duties and functions of a Sheriff are controlled by the common law and the General Assembly, and its conclusion depends on characterization of the issue as whether the source of authority is at the State or local level. Also, the Court in concluding that the Sheriffs and the Deputies were State officials, recognized that its "conclusion does not mean that, for some purposes and in some contexts, a sheriff may not be treated as a local government employee."

We do not believe that the substance or language of Rucker relieves this Commission of its responsibility to properly determine coverage of the Ethics Law according to its terms. Rucker involved a specific situation relating to private litigation in which an allegedly injured citizen sought to recover for damages and both the State and the County sought to deny liability. The court in this case considered the specific positions of Assistant and Deputy Sheriffs; nowhere did it specifically consider the status of the Office generally, or of other employees such as clerical, computer and other support personnel. Also, the court relied substantially on the legislative authority over the Sheriff's activities; it did not discuss what if any relationship the Office had to the Executive Branch of State government, which we believe to be a determinative criteria under the Ethics Law. The opinion functions within the context of the particular circumstances presented by the litigants in the case, and does not present a definitive unequivocal conclusion regarding the status of the Sheriff's Office for all situations.

Under these circumstances, it is our view that we cannot rely on the opinion in Rucker to resolve the question presented here. We believe that we are obligated to consider the application of the Ethics Law based on the purposes and language of the Law and taking into account the many factors previously considered in this and related situations. In doing this, we continue to believe that the approach taken and conclusions reached in our original consideration of the Sheriff's Offices continues to be appropriate. As discussed above, the Commission was aware of the constitutional and statutory source of Sheriff's Office authority and made its original determination based on application of the policy and other principles discussed above. Neither the statutory nor the functional aspects of this situation have changed. The Office functions solely within its own County, and its regulatory and purchasing activities are limited to that area. Most of its employees are in fact operating within the County system and its primary interactions are with citizens in that County. It takes no operational direction from the Executive Branch of State government, nor is it accountable for fiscal and budget matters to the State.

Given this focus of activities within the County, it is our view that the interactions that are likely to be of concern under the Ethics Law would also be focussed in the local jurisdiction. Potential employment conflicts or business interest conflicts that would most likely be of concern would be those involving local businesses or organizations rather than those interfacing with the State or with other counties. Lobbyists engaged in activities designed to influence government decisions are more likely to be those directly involved with local matters. Also, for financial disclosure purposes, we believe that disclosure of affiliations with local businesses regulated by or providing goods or services to the County would be more consistent with the purposes of the Ethics Law than would disclosure of relationships with entities doing business with the State.

Under all of these circumstances, we affirm our previous conclusion that the Sheriff's Offices in the counties are not executive agencies in State government, and that their employees, other than the incumbent in the constitutional office of Sheriff, are not officials or employees directly covered by the provisions of the Ethics Law. In our view, these individuals are to be covered by the local ethics law. In fact, in reviewing local laws over the past 14 years, we have insisted that all local employees be covered for conflicts of interest purposes and that higher level persons be covered by financial disclosure. If the County believes for its purposes that clearer County ethics law authority would be appropriate as to the Assistants, then it should seek clarifying legislation.

Mark C. Medairy, Jr., Chairman
   Shirley P. Hill
   Michael L. May
   Mary M. Thompson

Date: October 5, 1993

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1 Also, in some instances, the Legislature has specifically designated some agencies as being covered by the State Ethics Law.