94.02

Opinion No. 94-02

An advisory opinion has been requested as to whether the Deputy Executive Director of the Historic St. Mary's City Commission (HSMCC) may serve, if elected, as a member of the St. Mary's County Commissioners. We advise that, based on the facts presented, this service would not be prohibited, though depending on the facts as they develop in the future, situations could be presented that would require disqualification or possibly resignation from one or the other of these positions.

The Historic St. Mary's City Commission was organized in 1966 to preserve, study and interpret the site of Maryland's first capital in the context of the Chesapeake Bay region from prehistory to the present. It is a unit of the State Department of Housing and Community Development (DHCD). The HSMCC operates on an 812 acre rural site abutting St. Mary's College. Its primary activities include historical and archeological research, conducting education programs, and the operation of an outdoor museum which receives approximately 75,000 visitors per year. The agency is currently involved in several large capital development projects aimed at reconstructing the old capital city, which is classified as a national historic landmark. It is the site of the Maryland DOVE, and also is the primary sponsor of Project Lead Coffin, which involves the archeological investigation of three 17th century lead coffins found on the site in 1992.

The Requestor is the Deputy Executive Director of the HSMCC. His stated functions include assisting and supporting the Executive Director in implementation of agency program goals and policies. His functions include management of administrative and plant operations, coordination and management of the agency budget, development of the capital development master plan, and working with federal, State, and local officials in the conduct of the agency's business. He supervises the maintenance and security offices, serves as the procurement officer, and is involved in agency budget and fiscal projects. Although the Requestor's position description suggests some role regarding local government, he and the Department indicate that this is not in fact a significant activity.

The Requestor indicates that he plans to file for candidacy for election in the 1994 election as a Commissioner of St. Mary's County. St. Mary's is a Commissioner-type county in which the Commissioners are the highest elected officials and are responsible for legislative and executive functions involved in the governance of the 76,000 resident County. The position is a part-time position compensated at the rate of $21,000 per year. The County has appointed a County Administrator who functions as the day-to-day operational manager of County government. This individual apparently has substantial responsibility as to the process of County activities, but has no independent authority to approve or sign grant applications or agreements. Only the County Commissioners have grant agreement authority and accountability.

In evaluating this request, we have reviewed the potential for relationships between the HSMCC and the County with the Requestor, his agency supervisor, the Director for Historic and Cultural Programs, and the County Attorney. Though the agency is located in the County, all three state that there is in fact very little interaction between the two. As a State agency, the St. Mary's City site is not subject to any zoning, building, or related County regulation. It has its own septic system and water supply and apparently relies significantly on the security program of the neighboring St. Mary's College and on the State Police for its public safety functions. The site borders State Route 5, a main highway artery in the County which is plowed and maintained by the County, but there are no road maintenance, snow plowing, or related functions carried out by the County on the HSMCC site. The Requestor's supervisor indicates that the original plans for St. Mary's City have been significantly scaled down in recent years, thus limiting the likelihood of controversy between the agency and surrounding population.

The County's two areas of continuing action with the HSMCC and with its parent State agency (DHCD) involve tourism programs and DHCD block grant funding programs. The County's Director of Economic and Community Development indicates that the County employs a tourism specialist whose duties include working with HSMCC in marketing and developing joint projects and conferences. The Requestor has advised, however, that he has little direct involvement with this aspect of his agency's activities. At the State level tourism activities are within the Department of Economic and Employment Development rather than DHCD. The other interaction between the County and DHCD is in the context of block grant activity and low income housing funding through DHCD's Community Development Administration (CDA). The County Commissioners do have a formal role in the processing of these grants. These funds have tended to be used for infrastructure development projects such as water and sewer systems, and a grant is currently being processed for a redevelopment project in Lexington Park, the County's largest city.

We have in the past issued several opinions dealing with political activity by State employees and public officials, including Nos. 80-2, 85-13, and 88-3. These opinions reflect the view developed early in implementation of the Ethics Law (Article 40A, Annotated Code of Maryland) that political activity, including running for and serving in a political office, is not per se prohibited by the Law. This is based in part on the existence in the Election Law1 of specific provisions stating that employees and officials may engage in political activity within certain constraints. We concluded in Opinion No. 80-2 that in view of the existence of this provision and the absence of anything in the Ethics Law specifically overruling it, the Ethics Law would not be read to bar otherwise allowable political activity. We recognized, however, that serving in elected local office, if elected, would be considered as secondary employment for purposes of the Law, subject to application of the employment restrictions of §3-103(a). Subsequent formal and informal opinions have involved carefully evaluating this particular type of secondary employment, which is unusual in many ways. Employment has in some situations been prohibited where there were significant special relationships between the State and local duties of the requestors, and allowed where these relationships did not exist and where there was no impairment.

Though we recognize that there are actual or potential relationships here that could bring the Requestor's County service within the Law's §3-103(a) employment prohibition, we also understand that employment as an elected official is a special form of employment that is not specifically prohibited by State statute. It is our view that each such situation must rest upon the specific facts and circumstances of that situation. In the circumstances here, we believe that the relationships as described to us are sufficiently limited to support a conclusion that the Requestor's service as a County Commissioner would not be prohibited by the Ethics Law's employment or other provisions. First, although the program is important to the State, it is actually as a fiscal and operational matter a small State program. Moreover, it is stated by those involved to function as a State entity with relative autonomy within the County's geographical boundaries.

For example, HSMCC is apparently not subject to County regulatory authority in the zoning or land-use area and receives no services from the County that would be reflected in contractual relationships between it and the County. In security and public safety areas, the agency appears to rely on the security force of the neighboring St. Mary's College or on the Maryland State Police, and regulatory functions relating to environmental requirements involving capital construction are within the authority of the State Department of the Environment rather than local environmental programs. Though the HSMCC has dealings with the County's tourism program, these interactions are voluntary and appear to involve no funding relationships. Also, the Requestor has advised that tourism activities do not represent a significant aspect of his work for the HSMCC.

We also note here that the primary interaction between Requestor's Department, DHCD, and the County, is through the agency's block grant funding, with which we are advised the Requestor and his unit have no involvement whatever. Even as a County function this activity represents a very small part of the total activities and responsibilities of the County Commissioners, and we would expect the Requestor to disqualify himself from participation in any matter directly related to this activity or any activity relating to his Department. Apparently based on this lack of block grant funding responsibilities in his official duties, and taking into account the other HSMCC/County relationship discussed above, the Requestor's agency has stated that it believes there would be no conflict or appearance of conflict presented by his service in this local elected office.

Under all of these circumstances, it is our view that the Requestor's elected service would not be prohibited by the Public Ethics Law. He must, or course, take care that there is no mixing of the two roles in any way. In addition to disqualifying himself from County matters involving his Department, he should not participate in any HSMCC matter relating to the County if such matters arise. He also needs to ensure that there is no mixing of the two roles in fundraising or other similar activities, and particularly take care in the context of his campaign actitities not to rely in any way on his State position or engage in campaign activities in the context of his State job. He should also know that this result is based on the factual information as presented to us in this request. If the information is different or if issues arise as the relationship develops, he needs to know that he may have to leave one or the other of these positions.

We also want to make it clear to the Requestor that this review relates only to the application of the Ethics Law in Article 40A. This Commission does not address or resolve questions under Article 35 of the Maryland Constitution, questions presented under the local St. Mary's County ethics law, administrative and personnel laws or rules, or any concerns that might arise under the federal Hatch Act if the HSMCC receives federal funding.

Mark C. Medairy, Jr., Chairman
   Michael L. May
   Robert J. Romadka

Date: June 2, 1994

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1 Recently recodified in the State Personnel and Pensions Article, §3-203 to 3-2105, Annotated Code of Maryland.