94.05

OPINION NO. 94-5

A request has been submitted by the Prince George's County Ethics Commission regarding whether Deputy and Assistant State's Attorneys in the County are governed by the State Ethics Law or the County provisions. We advise that the Office of the State's Attorney is not an executive agency in State government under the Ethics Law, and that personnel in that Office, except for the State's Attorney, are local officials who should be covered by the local ethics law.

The State's Attorneys offices in Maryland are established pursuant to the Constitution, Article V, sections 7 through 12. Section 7 provides that "there shall be an Attorney for the State in each county ...," elected every four years, and to perform (per section 9) "such duties and receive such salary as shall be prescribed by the General Assembly." This Article also includes the Attorney General and is separate from the Executive Department Article. Article 10, §34, Annotated Code of Maryland, provides further that "the State's Attorney for each county and the City of Baltimore shall, in such county or city, prosecute and defend, on the part of the State, all cases in which the State may be interested, ... ." Section 40 of this Article defines the salary levels specifically for the State's Attorneys in the respective counties and provides further staffing requirements.

State's Attorneys, according to this provision, are to carry out duties as required by respective local laws and by the public general laws, and salary and expenses are to be paid by the respective counties. As to Prince George's County, §40 establishes the salary for the State's Attorney as $98,000 beginning in 1990, and prohibits private practice of law. It provides for 2 Deputies and 54 Assistants to serve at the pleasure of the State's Attorney, sets upper salary limits for these positions, and prohibits private law practices for them as well. Article 24, §8-101(2) (the Code's local government article), further provides that the State's Attorney's Offices are to be subject to the budget and fiscal policies and purchasing laws of their counties.

According to the State's Attorney in Prince George's County, the Office functions largely as an independent agency within the County government system, serving as the prosecutor of criminal cases solely within the County. The accountability for substantive exercise of discretionary authority is to the voters, though the Office operates for fiscal and administrative purposes within the County system. Employees other than the attorneys are hired and serve as part of the County merit system. All employees receive retirement and health benefits through the County, and none were included in the State's furlough program during the budget crisis two years ago. Purchasing and facilities functions of the Office are through the County system. Apparently the Office has grants through the State Office of Alcohol and Drug Abuse, under which it functions as any grantee rather than in a special State government relationship. The Office deals with the General Assembly annually as to salaries and has cooperative relationships with the Attorney General. Otherwise, it has little administrative interaction with State government, and does not take substantive direction as to its prosecutorial functions from State government.

The Ethics Commission in its initial determinations of coverage under the State Ethics Law (Article 40A, Annotated Code of Maryland) recognized that the State's Attorney himself was covered by the State Ethics Law by virtue of the express language including specified elected constitutional officers in the State official definition (§1-201(hh)). In considering application of the Law to the Office generally, however, the Commission looked to the status of the Office as an agency of government, rather than at individual positions within an office.1. In Opinion No. 93-12 we reviewed the history of this process in connection with consideration of the status of Sheriff's Offices as local agencies rather than State. We affirmed in that Opinion the previous conclusion as to both Sheriffs and State's Attorney's Offices that these units function as government agencies primarily within the county government and would be covered by local ethics provisions rather than under the State Law and within the jurisdiction of the Commission.

Through the years of implementing this Law the Commission has never sought to include anyone in these offices other than the State's Attorney in the State financial disclosure program or conflict of interest activity. Assistant State's Attorneys were not subject to the previous financial disclosure law or the Executive Order administered by the Board of Ethics. In various presentations the General Assembly has been made aware of the Commission's interpretation of this provision of the Law. The situation has not changed from the beginning of Ethics Commission implementation of the Law. As discussed in Opinion No. 93-12, the definitions of public official and executive agency continue to apply to suggest that this type of issue needs to be considered from the point of view of the whole agency rather than individual officials. When considering the level of government at which the office acts, the likely source of conflicts, the County budgetary and administrative control functions, and the absence of legislative action to change the Commission policy to date, we do not believe there is a basis for adopting a different approach than that originally adopted and implemented since 1979.

Under all of these circumstances, we advise the County and the County Ethics Commission that State's Attorneys Offices are local offices and their officials and employees, except for the individual elected to the office of State's Attorney, are local officials required to be covered by the local ethics laws.

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

Date: August 23, 1994

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1 Note that Judicial Branch entities are not at issue here, as they are treated differently by specific inclusion of all Judicial Branch personnel under the State Law.