An opinion request has been received from an attorney in Prince George's County regarding application of 1993 ethics law provisions to possible activities anticipated by him or his law firm, assuming he or the firm are viewed as agents in land-use matters under the Law. This request presents a series of issues setting forth several possible activities that could be potentially covered by the payment/contribution provisions of the Law.
The Prince George's District Council ethics law was enacted in 1993 primarily as an amendment to the Public Ethics Law (HB 989, Article 40A, §§6-6016-605, Annotated Code of Maryland, the Ethics Law). It deals with payments/contributions to the incumbent County Executive and County Council Members by applicants and agents involved in the processing of applications in the Prince George's County land-use decision-making. It requires submission of affidavits with an application and disclosure of ex parte communications, prohibits payments/contributions while an application is pending, and requires disqualification by Council Members in certain applications. In particular, §6-602(a) of the Law prohibits an agent from making a payment/contribution to the County Executive or a Council Member while an application is pending. Payment is defined in §6-601(l) as "any payment or contribution of money or property or the incurring of any liability or promise of anything of value to the treasurer of a candidate or of a continuing political committee." To some extent, the land-use ethics portions of the Law involve an understanding of related provisions or terms of the Maryland election law (Article 33, Annotated Code of Maryland).
The Requestor is an attorney who engages in legal work related to land-use decisions and he indicates that this would likely make him an agent as contemplated in the land-use ethics law. He has presented several groups of questions regarding the impact of the Law on his activities. In the first group of questions the issue is whether the described activities would be a payment/contribution. The questions, generally, are: whether an agent can invite potential contributors to a fundraising meeting and chair the meeting, whether an agent can send fundraising tickets to a potential contributor either on campaign stationery and expense or on office stationery and expense, and whether an agent can contribute personal time to put on a fund-raiser and attend at the expense of another. Each of the activities falls short of an actual money contribution directly to a campaign. Each also, however, involves the commitment of some type of benefit to the furtherance of the campaign of the candidate. Under the election law, such benefits have in some circumstances been viewed as contributions required to be disclosed and counted against campaign contribution limitations.
The second question group involves activities undertaken by an agent without the candidate's cooperation or interaction, to express a personal opinion in a newspaper ad undertaken at his own expense. The description of this activity seems to reflect an intention to describe independent expenditures, consistent with the constraints imposed by the election law. Though it is not clear how the election law would treat this inquiry, the land-use ethics law in uncodified section 4 provides that the Law "does not preclude any independent expenditure by any person, including any applicant, agent, or political action committee." Other questions presented by the Requestor deal with the provision of services in connection with campaign activities, including volunteer time in writing, research and poll work, and providing professional services (such as legal advice provided by a lawyer agent). We understand from the Board of Elections that under the election law free provision of professional services would generally be viewed as a contribution, while general volunteer services would probably not. Also, in a similar situation arising under Ethics Law provisions dealing with lobbyist political activities (§5-104.1), we concluded that provision of professional services that are part of the lobbyist's business/profession could be viewed as a contribution.
We have considered the language and legislative background of the provisions of the land-use ethics law and have taken into account general information provided regarding the election law principles that bear upon the interpretation of the land-use ethics law. We recognize that to some considerable extent, the impact of the land-use ethics law depends on the treatment of particular factual circumstances in the election law context. With that in mind, however, we have developed the following advisory guidance for use by individuals impacted by the land-use ethics law and engaged in activities similar to those presented by the Requestor. In addition to their inclusion in this opinion, the responses to the questions set forth here are included, in substance, in a memorandum that is available for general distribution to those involved in the Prince George's County land-use process and therefore potentially subject to this Law. The questions presented by the Requestor, with our answers, are:
1. Does a contribution/payment result if an agent signs a letter on behalf of a campaign committee supporting an incumbent County Executive or Council Member and inviting an individual to attend a meeting to plan an event to raise funds for use to finance the Executive's or Member's campaign for public office? In our view, the Law does not impact on the ability of an agent or applicant to solicit campaign contributions. Thus, the mere signing of a letter in these circumstances would not be considered to be a contribution/payment under the Law.
2. Is there a contribution/payment if an agent chairs the meeting to plan a fundraising event? We advise that the agent's chairing this type of meeting would not be considered to be a contribution/payment unless volunteering this service would be considered an in-kind campaign contribution under the election law. We understand as a general matter, that under the election law this limited type of activity would not be considered to be a contribution, unless the agent is in the business of providing this type of service.
3. Does a contribution/payment result if an agent sends tickets over his own signature to potential contributors for a fundraising event for a Council Member or incumbent County Executive, where recipients are asked to buy the tickets and the letters are typed by a campaign volunteer and mailed at the expense of the campaign? As noted above, in our view the Law does not limit solicitation of contributions. Also, though the Law does prohibit contributions/payments at certain times, we do not believe that the mere signature of a letter under the circumstances described would be considered to be a contribution/payment, unless the signer normally charges a fee for such solicitation, in which case the signature would become an in-kind political contribution.
4. Is there a contribution/payment if an agent sends tickets over his own signature to a fundraising event for a Council Member or the incumbent County Executive to potential contributors, where the letter is on the agent's stationery, typed by an employee of the agent, and mailed at the agent's expense? In our view this would be viewed as a contribution of secretarial services, supplies and mailing expenses that would be a payment/contribution under the land-use ethics law. This means that an agent could not engage in this activity while an application was pending. Also, if this were done at a time when there is no application pending, this contribution/payment activity would be disclosable on an agent affidavit in an application filed within 36 months of the contribution/payment, and would impact on the 36-month disqualification period as to Council Members.
5. If an agent helps with the logistics or otherwise gives personal time to help conduct a fundraising event for a Council Member or the incumbent County Executive, would this be considered to be a payment/contribution? Volunteer work for a campaign at a time when an application is pending is permissible only to the extent that the activity does not constitute a contribution/payment. Generally this type of activity will not be a contribution/payment where the nature of the activity or service is not something that the agent would normally provide for compensation.
6. Does attendance by an agent at a fundraising event as a guest of the campaign committee or as a guest of another non-applicant or agent ticket purchaser constitute a contribution/payment to the candidate? We do not believe that there is language in the land-use ethics law that would include within the definition of contribution/payment the attendance at a fundraising event using a ticket purchased by another person in conformity with the Law or provided free by the candidate's committee.
7. Does a contribution/payment result where the agent uses his own funds, without any cooperation or interaction with an incumbent County Executive, a Council Member, or their committee, to purchase a newspaper ad or otherwise express his personal support for the election of the Executive or the Member, and states elsewhere or in the communication that this is the view of the persons purchasing the ad? The Law expressly provides that it does not cover any independent expenditure by any person, including any applicant, agent or political action committee. Independent expenditures as described in the land-use ethics law are thus not prohibited, as long as they clearly qualify as independent expenditures under the election law, and are therefore not undertaken to subvert the intent of the Law.
8. If an agent uses volunteer time to write campaign material, do research, work polls, or otherwise assist the campaign of the incumbent County Executive or a Council Member, would this be considered to be a contribution/payment? A determination as to whether this activity would be considered to be a contribution/payment would depend on whether this is the type of activity in which the agent normally engages for compensation. If the agent does this type of activity in other situations for compensation, this would constitute a contribution/payment.
9. If an agent who is a lawyer gives free legal advice to the campaign of the incumbent County Executive or a Member without charging a fee, is this a contribution/payment? Generally this would be a contribution/payment and would be impacted by the Law's regulation of contributions/payments.
Mark C. Medairy, Jr., Chairman
Shirley P. Hill
Michael L. May
Mary M. Thompson
Date: December 15, 1993