94.03

OPINION NO. 94-3

An opinion has been requested as to whether a County Executive running for Governor with a candidate for Lieutenant Governor constitutes a slate for purposes of the Prince George's land-use ethics provisions of the Ethics Law (Article 40A, §§6-601—6-606, Annotated Code of Maryland). As a slate there would not be a restriction against applicants and agents making contributions to the slate while an application was pending. We advise, based on advice of the Attorney General and our interpretation of the Ethics Law provisions, that these two candidates would constitute a slate for purposes of these provisions, assuming that the Lieutenant Governor candidate is not a member of the County Council.

The Requestor is a private attorney in Prince George's County (PG County) whose practice includes significant land-use and zoning activities. He indicates that he and his colleagues appear frequently before the PG County Council in zoning matters on behalf of clients who are applicants for zoning actions as that term is understood in the land-use ethics provisions added to the Ethics Law in 1993. He and the firm would therefore be viewed as agents as that term is defined in §6-601(b) of the Law. The Requestor advises that he is considering serving with the gubernatorial campaign of the PG County Executive. This could include making and soliciting contributions as well as providing in-kind services that would be viewed as contributions for purposes of the Maryland Election Law. He has requested advice as to whether the contribution restrictions of the land-use ethics provisions would apply to these activities if they involve support of a slate composed solely of the candidates for Governor and Lt. Governor.

Sections 6-601 through 6-606 of the Ethics Law include land- use ethics provisions added to the Law in 1993. They deal with payments/contributions made to PG County Council Members and the County Executive by persons involved as applicants or agents in the zoning process in the County. The law prohibits participation by Council Members under defined circumstances and also requires disclosure of contributions and ex parte communications. It also, in §6-602(a), prohibits an applicant or agent from making a payment/contribution to a Council Member or the County Executive while an application is pending. The Commission has generally taken the position that the land-use ethics provisions apply to incumbents in a position even if they are candidates for other positions. The contribution prohibition in §6-602(a) would therefore apply to contributions made to an incumbent County Executive who is a candidate for another office, and a contribution to him from an agent while an application is pending would be prohibited by this section.

The land-use ethics provisions, however, include language codified in the Election Law, Article 33, §26-9(f), which excludes contributions made to a slate from the provisions of the Law. Specifically, §26-9(f) provides that the land-use ethics provisions do not apply to "any payment or transfer to a slate, unless the slate is composed solely of candidates or members." Slate is defined in §26-9(f) as "a group, combination or organization of candidates created pursuant to the provisions of [Article 33]."

Elsewhere in the Election Law, slate is defined as "a political committee of two or more candidates who join together to conduct and pay for joint campaign activities." (§1-1(a)(17A.) We have informally considered questions involving slates in several circumstances, generally advising that the land-use ethics contribution provisions would not apply where the contribution is to a slate that includes valid candidates in addition to members of the County Council or the County Executive.

Under this language and its interpretation, if the Governor and Lt. Governor candidates constitute a slate, then the land-use ethics contribution provisions would not apply, assuming the Lt. Governor candidate is not a Member of the Council. The question of whether these two running together would constitute a slate arises as they are the only two candidates, and because under Maryland Constitutional and statutory provisions, candidates for Governor and Lt. Governor must run together as a unit. More specifically, the Constitution at Article II, §1B, provides for the gubernatorial candidate at the time of filing to designate a Lt. Governor candidate, and that in any election "the candidates for Governor and Lieutenant Governor shall be listed jointly on the ballot, and a vote cast for the candidate for Governor shall also be cast for Lieutenant Governor jointly listed on the ballot with him. ..."

In a letter opinion provided in response to a Commission request, the Attorney General considered the definition of slate in §1-1(17A) of the Election Law, as that term has been applied in implementation of the Election Law. Reviewing this and other definitions in the election law, as well as previous opinions of his Office, the Attorney General indicated that the Office "has consistently taken the position that each person running for Governor and Lieutenant Governor is a candidate." The Attorney General advice thus concludes that, "inasmuch as both running mates are considered to be candidates, it logically follows that under the plain language of Article 33, a pair of running mates for the office of Governor and Lieutenant Governor is not prohibited from filing as a slate as that term is defined in Article 33. ... Thus, while this filing option is rarely used, it is available to candidates who choose to use it." (Letter of Attorney General J. Joseph Curran to John E. O'Donnell, May 20, 1994.)

A review of the practical impact of the Election Law confirms this approach, reflecting that despite the statutory identification of candidates for Governor and Lieutenant Governor as a unit for filing and voting purposes, there appear to be practical ways in which they are treated by the State Administrative Board of Election Laws (SABEL) as separate candidates. For example, each candidate files a separate certificate of candidacy, each must submit the same filing fee, and apparently candidates for these two offices regularly establish separate and independent campaign finance committees. Also, in the 1990 election a slate composed only of candidates for Governor and Lt. Governor was established and operated under the Election Law. This was done by the formal designation in the filing process and the two candidates were able to file single reports and engage in other joint activities.

The Attorney General advice focuses on the Election Law definition of slate in effect under the Election Law at the time of the enactment of the PG County land-use ethics provisions. This original Election Law slate language and the later ethics-related Election Law slate definition are slightly different. The original Election Law definition deals with candidates joining together for joint campaign activities; the new provision deals with a group, combination or organization created pursuant to the Election Law. Though we recognize this language difference, we are unable to conclude that it calls for a different result as a practical or legal matter. Though voters must vote for these individuals as a unit, it is clear from the Attorney General's opinion that legally they are two separate candidates. Establishing a slate for Election Law purposes is an affirmative action to combine two candidacies and create a joint campaign including two otherwise separate campaigns. In our view this is consistent with the definition of slate included in the Election Law (§29-9(f)) by the land-use ethics provisions.

We understand that the inclusion of the County Executive in the land-use ethics provisions was an intentional act, and that there was an awareness of the incumbent's likely gubernatorial candidacy. We also believe, however, that the exclusion for slates was known to have potential for wide application, and, further, that the past establishment of a slate by two candidates for Governor and Lieutenant Governor was a matter of public knowledge. Under the circumstances, and given the consistency of this type of slate with the land-use ethics law slate definition, as well as the practical concerns that would be presented if such a slate were treated differently under these two laws, we conclude that a slate composed of candidates for Governor and Lieutenant Governor would be a slate under the land-use ethics law. Such a slate would be excluded from the prohibitions of that Law, so long as it complies fully with the slate requirements of the Election Law, and is not established solely to avoid the land-use ethics law requirements.1

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

Date: July 6, 1994

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1 Under the specific facts presented here, it is unlikely that the slate would be formed to avoid the ethics requirements. This is very close to the filing deadline, these candidates must run together as a unit (and serve together if elected), and the campaign would entail substantial effort to achieve the offices involved.