94.11

Opinion No. 94-11

A request has been presented by the Office of Administrative Hearings (OAH) regarding application of the Public Ethics Law (Article 40A, Annotated Code of Maryland, the Ethics Law) to several members of the Advisory Council on Administrative Hearings (the Advisory Council) who have various dealings with the Office of Administrative Hearings in the context of their public or private employment. Based on a variety of factors (such as appointment status, disclosure and nature of activities), we conclude that Ethics Law prohibitions are not presented as to most of the individuals. We believe, however, that the continued service by one of the members on the Council and appearance before the OAH as a private attorney is prohibited in the absence of specific legislative action to allow this type of affiliation.

The Advisory Council on Administrative Hearings is established pursuant to §9-1608 of the State Government Article. In addition to 2 public members, its membership includes representatives of the Maryland House and Senate, a designee of the Attorney General, 2 secretaries or designees of departments involved in contested cases, and 2 representatives of the Maryland State Bar Association (MSBA). The Council is to advise the Chief Administrative Law Judge, identify issues of importance that should be addressed by the Office, review issues and problems, review and comment on regulations, and prepare a list of agencies that should be exempt from adjudication by the OAH. In its Annual Report for 1993, the Council reviewed activities pertaining to revisions to the Administrative Procedure Act as well as OAH rules of procedure. It made recommendations regarding inclusion of agencies within OAH jurisdiction, and also regarding the Office's fiscal situation and work backlog and funding recommendations as to employee salaries. The Council reported on its consideration of OAH legislation and employee grievance regulations, the salary structure for OAH employees, and the focus of its attention on reviewing OAH agency coverage and exemptions. It also provided comments on the performance of OAH and its staff.

As a result of informal Commission advice, the Council considered the general issue of application of the Ethics Law to its members, and requested advice regarding four Council members:1

1. The Administrator of the Motor Vehicle Administration serves as a designee of the Secretary of Transportation. He is not a lawyer and makes no appearances before the agency, and advises he has no dealings whatever with particular ALJ's as to particular cases.

2. The designee of the Attorney General serves as the Legislative Counsel to the Maryland General Assembly, and also has had some general assignments involving other agencies. In this capacity he handled a case before the OAH involving a personnel grievance situation in the Executive Department. This is the only such case he has handled in ten years, and he indicates that as a practical matter this is very rare as most of the executive agencies that he works with are exempt from OAH coverage.

3. The former Chairman of the MSBA's Administrative Law Committee (which tends to be the source of its nominees to the Council) serves as a Bar Association representative, and is the General Counsel of a bi-county agency in Prince George's and Montgomery Counties. He indicates that there may be employee termination appeals presented to an ALJ by attorneys for his agency who are supervised by him. This activity is limited to a few per year and the member himself has made no personal appearances before an ALJ in such cases. This individual filed a Time of Appointment disclosure statement when he was appointed that disclosed this activity.

4. The fourth individual being considered here is an attorney for a private non-profit legal services organization appointed to the Council as a Bar Association representative. This individual's employer provides legal services to the poor in a variety of legal matters. The Member indicates that she works in a program that involves her personal appearance in cases before ALJ's. Apparently though very often a matter would be settled without a hearing, the Member indicates that possibly a dozen or so would go to a hearing in which she would make a personal appearance to present a case. This individual did not file a Time of Appointment exemption disclosure form when she was first appointed in 1990 or in connection with her recent reappointment.

The Ethics Law includes in §3-103(a) employment prohibitions barring officials and employees, including members of boards and commissions, from having employment with an entity that is subject to the authority of or contracts with their agency, or any other employment that would impair their impartiality or independence of judgment. Section 3-104 of the Law further prohibits the use of the prestige of one's office for one's own economic gain or that of another. We have in applying these provisions advised that lawyers who are on boards and commissions may not personally appear before their own agency in connection with their private law practice. (See, for example, Opinion Nos. 86-15, 86-13, 83-36, and 83-39.)

In applying these principles to the several situations presented by OAH, we believe that the only issue is that presented by the fourth individual discussed above. As to individuals 1 and 2, for example, the MVA Administrator is not a lawyer and does not make appearances before the agency. He serves in his official capacity as a State official and the fact that his agency has significant business before OAH is an aspect of his service precisely required by the statute. The Attorney General representative is appointed as part of his official duties as a representative of a State agency, also in part because of its potential for involvement with OAH. Also, as a practical matter his personal involvement seems to be substantially limited. We thus conclude that the Ethics Law does not apply to bar the dual State service of either of these individuals.

The remaining two members are both private non-State-government appointees to whom the prohibitions of the Ethics Law apply. In both of these situations, the individual has an employment relationship with an entity that is involved in matters expected to be heard by OAH. In our view these relationships would bring the employment within the employment prohibition of §3-103(a) of the Law and raise potential issues under the §3-104 prestige provisions. As to both of these individuals, we therefore believe that the question is whether any exception or exemption in the Law can be applied to allow the dual service. There are several possible sources of exception or exemption authority in the Law. The first is the regulatory exception permitted by §3-103(a), which applies the prohibitions, unless excepted by the Commission pursuant to regulation supporting a finding that there is no conflict or appearance of conflict. Given the direct nature of the private activities before OAH, we cannot conclude that a regulatory exception under this provision would be possible, at least as to the member having significant appearance activity before OAH judges.

Section 3-103(a)(2) of the Law, however, includes two other exception provisions directed particularly at board and commission members. The first, the licensing board exception, would not appear to apply here. It provides that the employment and interest prohibitions of subsection (a) do not apply where the individual is appointed to a regulatory or licensing board pursuant to a statutory requirement that licensees serve on the board. Though the service here does appear to result from a statutory requirement, the Council is not a licensing board. In similar situations, we have not allowed exception under this provision. The second exception in subsection (a)(2) is the Time of Appointment disclosure exception. This is a provision that allows exclusion from the strict employment, interest and impairment limitations as to interests or employment held at the time of appointment and disclosed in connection with that process, presumably allowing a policy decision by the appointing authority regarding the need for an individual's service notwithstanding a conflict.

As to this particular situation, we have taken account of the fact that the third individual member here has filed a Time of Appointment exemption disclosure in which he indicates that his bi-county agency employer has a limited number of cases before ALJ's which are handled by an attorney supervised by him. We therefore believe that this individual is exempted from the employment and interest prohibitions of §3-103(a), though he continues to be subject to the participation, prestige and other conduct provisions of the Law. As he does not make personal appearances and seems to have no other dealings with OAH in the context of his regular employment, we conclude that the issue as to him is resolved by this disclosure. As noted, however, the fourth member did not file a Time of Appointment disclosure. Also, though her administrative practice experience and her private employment responsibilities are included in her resume, there is no Senate confirmation for this appointment and Council members do not file annual disclosure. There was therefore no public disclosure of this individual's private activities before the OAH in connection with her appointment or in subsequent annual disclosure.

The remaining exemption provision that could be applied to this situation would be exemption under §2-103(h) of the Law. This section allows the Ethics Commission to grant exemptions or modifications to any provision of the Law to a member of a board or commission if because of the nature of the board or commission it finds that application of the provision would constitute an unreasonable invasion of privacy, would significantly reduce the availability of qualified persons for public service, and is not necessary to preserve the purposes of the Law. This provision has been the basis of exemption of advisory boards from financial disclosure, and has also been relied upon by the Commission in granting individual exemptions to board or commission members. Conflict of interest exceptions under this provision have been rare.

We have evaluated the circumstances here in view of the several exemption and exception provisions in the Law, and do not believe that any can be applied to allow the continued dual service for the fourth member whose situation is presented here. In many years of applying the Law to attorney members of boards and commissions we have consistently advised that private legal activities that involve direct appearances before one's own agency are prohibited by the employment provisions of the Law. We recognize that the OAH law contemplates service by a person nominated by the Bar Association, and also understand the agency's view of the potential contribution of a person with current administrative law experience. The law does not specifically call for representation by a person currently active before the OAH, however, and there would appear to be individuals who could contribute without necessarily being current OAH practitioners. We note also that the situation presents certain appearance issues, particularly where opposing counsel may represent private entities and conclude that a Council member's status gives clients an advantage in appearing before OAH judges who may in some way be impacted by Council recommendations. This potential is reflected in the Council's previous activity, not only with the substance and procedure of OAH activities, but with personnel, salary and related matters.

Under all of these circumstances, and given our previous consistent advice to attorney board members barring appearances before their agencies, we are reluctant to conclude that the Ethics Law would allow this dual service in the absence of more specific legislation reflecting a legislative policy decision that persons actively appearing before the OAH should serve on its Advisory Council. We therefore advise the individual and the OAH that her service on the Council may only continue through the next session of the General Assembly, and thereafter only if legislation is enacted and signed into law that reflects an intention of the General Assembly that active practitioners serve as advisors to the OAH. In the meantime the agency and member should be sensitive to this situation and the member should avoid participation in any Council matters or private matters that could negatively impact on impartiality or appearance of impropriety in the OAH process.

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

Date: December 7, 1994

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1 Note that a fifth member included in the request not being fully discussed here is a member of the Maryland Senate, appointed in his official capacity and therefore serving as part of his official legislative duties. The State Ethics Commission has jurisdiction over members of the General Assembly only for financial disclosure purposes, and not as to conduct carried out in their capacity as legislative officials.