96.02

OPINION NO. 96-02

An opinion has been requested regarding the application of the Prince George's County zoning ethics provisions in §§15-829 through 15-835 of the Public Ethics Law, and related election law provisions, to the actions of certain Prince George's County agents and officials. We advise that the Law applies to require the filing of an affidavit and disqualification from participation on the application by one Council member. Based on the facts presented regarding the timing of contributions and the previous activities of the other individuals, we conclude that affidavits and disqualification are not otherwise required, though the individuals should carefully review the legal provisions involved.

The current Prince George's zoning ethics law was enacted in 1993 primarily as an amendment to the Public Ethics Law (HB 989, recodified as State Government Article, §§15-829—15-835, Annotated Code of Maryland). It deals with payments/contributions to County Council members by applicants and agents involved in the processing of applications in Prince George's County land-use decision making.1 A major component of the law is to prohibit members of the County Council from voting on or participating in certain zoning or land-use proceedings if the member has received, during a certain period of time, a contribution from certain persons or entities involved in the matter. The law generally applies only to contributions and actions after July 1, 1993. It requires submission of affidavits with an application and disclosure of ex parte communications, prohibits payments/contributions to a County Council member while an application is pending, and requires disqualification by Council members in certain applications.

This request involves possible application of the provisions of the zoning ethics law to the circumstances surrounding an application for specific design plan (SDP) approval for construction of a football stadium in Landover in Prince George's County. The application is presented by a private entity and related affiliates (hereafter the Team) which plans to construct a football stadium for use by an NFL football team in the Washington, D.C. metropolitan area. After considering locations in Virginia and Anne Arundel County, Maryland, the Team identified a site known as the Wilson Farm in Prince George's County. We are advised by all of the parties involved in this situation that the focus on this site and beginning of negotiations with government and private entities began after the pursuit of other sites had been unsuccessful, in early 1995, and not before.

When the Wilson Farm site became the subject of negotiations, the Team was represented by a Maryland law firm (the Law Firm) as to the general site location and related negotiations, but it also retained a Prince George's County zoning and development attorney, to more specifically handle zoning and related matters in connection with the project. The Wilson Farm property was purchased in April 1995 by the National—Capital Park and Planning Commission (NCPPC), which is the current title owner.2 In July 1995 legislation (CB-53-1995) was introduced and enacted in September 1995, to incorporate into the County's zoning ordinance a new Specific Design Plan (SDP) review process for stadiums in Comprehensive Design Zones, replacing the normal 3-step process. On October 4, 1995 an SDP application signed by an officer of one of the Team's constituent entities was submitted pursuant to this process. The SDP approval request is specifically included as an action that is an application under the law, and the Team views itself and is being treated by others as an applicant for purposes of this application. The affidavit required by the zoning ethics law to be filed with the application was filed with the application indicating that no contributions or payments had been made to Council members or candidates during the period from July 1, 1993.

Agreement regarding sale of the property and other financing and related arrangements was reached in a Letter of Intent executed on December 4, 1995 between the Team, the NCPPC, the County and the State. The County Council Chairman subsequently requested advice from the Commission regarding potential application of the zoning ethics law disqualification requirements in view of several contributions made to Council members. The request included materials from the election records submitted by representatives of citizens opposed to the Stadium Project identifying certain contributions by persons/entities providing services to the Team in this process. The Council Chairman requested advice as to the status of these individuals/entities as agents, their obligation to submit affidavits pursuant to the law, and the extent of disqualification required by Council members who received the contributions from voting or otherwise participating in consideration of the Team's SDP application.

This request presents issues regarding four individual subjects of this opinion who are or have been providing services to the Team in connection with the Stadium Project and who have made contributions after July 1, 1993 to individuals who now serve as members of the Prince George's County Council. Subject A is an attorney who in November 1995 became involved as an attorney consultant to the Law Firm. He was significantly involved in negotiation of the Letter of Intent and other matters directly related to the Team's purchase of the Wilson Farm and its various undertakings under the Letter, and continues to be involved on behalf of the Team in matters directly related to the Stadium Project. He made a $100 contribution in July 1994 to the campaign of his father, then a candidate for County Council and now a Councilman. Subject A indicates that though his law practice entails primarily plaintiffs work and does not focus on zoning or land-use matters, in 1995 the firm did represent one of its corporate clients in a matter that would make him an agent under the law as to that activity.

Subject B describes himself as engaged generally in minority business development activities, focusing primarily on minority business certification issues. He says that he generally does not have developers as clients or get involved in land-use matters in Prince George's County. He was retained through the Law Firm from July through September 1995 to do community oriented work addressing community concerns regarding environmental issues, questions about the economic impact of the stadium, and tax issues. Campaign contribution information available to us reflects contributions in 1993 to a current Councilman by a political committee organized to support Subject B's candidacy for the State Senate.

Subject C is a partner in the Law Firm. He was involved through a prior law firm affiliation in the Team's activities in Anne Arundel County and continued through his current firm to act on the Team's behalf when the Prince George's Stadium Project developed in early 1995. Subject C indicates that he attended meetings and hearings on the CB-53-1995 legislation. After passage of the bill the zoning (SDP) application was filed and Subject C and others in the Firm continued to be substantially involved in the negotiations that led to the Letter of Intent. Subject C made three campaign contributions in 1994, all for $100 each, to three current members of the County Council. Subject C indicates that the Law Firm is not generally engaged (as a law firm) in zoning or development activities. He says that neither he nor his partners have served as agents in previous applications.

Subject D is a part-time member (but managing partner) of the Law Firm who has been located in Prince George's County for over 40 years both as a practicing attorney and as a commercial real estate broker. He is currently affiliated with a commercial real estate brokerage, where he serves as Chairman of the Executive Committee, and in the past served for five years as Chairman of Park and Planning in the County. Subject D indicates that he has been very involved in the Stadium Project on the Team's behalf. He says that he participated in a variety of meetings regarding the site location, had discussions with the Prince George's County Executive, and did community groundwork. He also participated as a witness in support of CB-53-1995, presenting financial and related information regarding the Stadium Project. In 1994 Subject D made two contributions of $100 each to one current member of the Council. Subject D indicates that neither his legal nor his realty work has directly or substantially involved zoning activities. He also states that he cannot identify any matters after July 1, 1993 on behalf of either a law firm or realty firm that involved his provision of services to an applicant in any of the types of actions included in the definition of application. Despite his significant real estate related involvement in the County, Subject D maintains that he has not in fact served as an agent and that his legal and real estate activities have focused on other than zoning matters.

As an initial matter, we believe that all of these individuals are agents for purposes of the zoning ethics provisions of the Ethics Law. Section 15-829(b) defines agent to include individuals or business entities hired or retained by an applicant "for any purpose relating to the land that is the subject of an application," including accountants, attorneys, architects, engineers, land-use consultants, economic consultants, real estate agents and brokers, and traffic consultants and engineers. All of these individual subjects were hired or retained by an applicant to provide services relating to land that is the subject of an application. Three of the individuals (Subjects A, C and D) are attorneys and clearly fit within the categories set forth in §15-829 (b). Also, though Subject B was not within one of the degree professions listed in this section, he was a consultant and the specific focus of his community activity was land-use and economic impact. Under these circumstances we believe that he also must be viewed as an agent under the Law. As agents, these individuals are subject to the substantive provisions of the Law, including the §15-831(a) prohibition against making contributions during the pendency of an application, and the §15-832 provisions regarding ex parte communications.

These individuals would as agents also be covered by the affidavit requirements of §15-831(d) of the Law if they meet the criteria set forth in this section, which provides that an affidavit is required by an agent if the agent has acted on behalf of the applicant with regard to the specific application and has made or solicited a payment or contribution "during the 36-month period before the filing of the application and during the pendency of the application, and after becoming an agent of the applicant." Disclosure of contributions made before becoming an agent would be required if made by prearrangement with an applicant or if the agent has "acted as an agent as to any other application filed during the 36-month period." The Law thus applies the affidavit requirement where there is a more likely connection between the contribution and the application, excluding persons who are only incidentally active as agents unless their contribution is made after they become an agent as to a particular application, but more generally including persons whose ongoing and regular activities include serving as an agent in relation to land-use applications.

Applying these provisions to the situation here, we believe, based on the information provided to us, that an affidavit is required to be filed by Subject A, but not by the other individuals. All of the agent contributions were made in 1994, prior to the Team's active consideration of a Prince George's County site, and before any of these individuals became affiliated with the Team as to a land-use application subject to the provisions of this Law. As there is no indication of prearrangement with the Team, affidavits would be required only as to individuals who have acted as an agent in other matters since the Law's effective date on July 1, 1993. Applying this criterion, and relying on the information provided by the individuals, it appears that only Subject A would have to file an affidavit, based on the fact that he served as an agent in another matter in 1995.

As to the other individuals, we note in addition to the timing of his contribution that Subject B's contribution appears to have been a transfer from a continuing political committee to the political committee of another candidate. Section 26-9(f)(3) of the Election Law (Article 33, Annotated Code of Maryland) provides that the zoning ethics law does not apply to any "transfer to the continuing political committee of a candidate or member by the continuing political committee of another individual running for elective office." In any case, given his indication of the absence of any prior agent activities, Subject B would not be required to file an affidavit, regardless of whether this contribution was a transfer. As to Subject C, he also describes his prior activities as not serving as an agent as to applications in Prince George's County. Assuming this description of his prior activities to be accurate, then his submission of an affidavit disclosing his contributions also would not be required.

In addition to his affiliation with the Law Firm, Subject D also serves as an executive with a large commercial real estate firm in Prince George's County and has been involved in real estate related work in the County for many years. He states, nevertheless, that he has not since the effective date of the zoning ethics law served as an agent as to any application in the County. He states that given the limited zoning activity in the County in recent years, his realty firm has also not been an agent. Subject D has been advised that the definition of agent (§15-829(b)(2)) includes, as to partnerships, corporations and joint ventures, partners, officers and others who are engaged in substantive activities pertaining specifically to land development in Prince George's County as a regular part of their ongoing business activities. Subject D should therefore carefully review his activities since July 1, 1993 as well as those of the organizations where he has been affiliated. To the extent that there has in fact been no activity that would result in him or others in the firm being viewed as agents, then an affidavit disclosing his 1994 contributions would not be required.

The Law provides at §15-831(b)(1) that after an application has been filed, a member of the County Council may not vote or otherwise participate in the proceeding on an application if there has been a contribution from an agent or applicant during the 36-month period before the filing of the application or during the pendency of the application. Subsection 15-831(b)(2), however, further provides that a member is not subject to these nonparticipation requirements if no applicant or agent has filed an application naming the member or his committee as the recipient of a payment. Since an affidavit is required to be filed by Subject A disclosing his contribution, the disqualification provided in this section applies to bar the recipient Councilman from participating in the proceeding on the team's SDP application. (We understand that the Councilman has, in fact, recused himself from involvement in this matter.)

We further advise, based on the application of subsection (b)(2), that where there is no affidavit, a member is not prohibited as a matter of law from participating, despite the existence of actual notice provided by the citizen representative pursuant to §15-833. Our view of this provision and its history is that it was not intended to substitute an actual notice provision that would overcome the specific language in §15-831(b)(2) allowing participation where there the law requires no affidavit. We view it, rather, as a mechanism designed to ensure consideration of contributions and a determination of whether an affidavit is required, with the §15-831(b)(2)(i) exclusion continuing to apply if it is concluded that affidavits are not required. (See also, in this regard, §15-835(b)(3).)

To summarize, we advise the County Council and the individual subjects involved in this request that all of these four individuals are agents for purposes of the zoning ethics provisions of the Public Ethics Law. They are all subject to the contribution prohibition and ex parte provisions of the Law. One individual, Subject A, must file an affidavit disclosing a contribution to a Councilman, and the Councilman is therefore disqualified from participation in proceedings on the Team's SDP application. The remaining three Subjects are not required to file affidavits, based on the fact that the contributions were made prior to their becoming agents, and in reliance on the facts as described by them that they have not previously acted as agents on any application. They should, however, review their past activities carefully to ensure that the facts presented are accurate. To the extent no affidavit is required, participation by Council members who received contributions from these Subjects is not prohibited.3

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

Date: January 31, 1996

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1 The law also has some more limited application to the County Executive. Since the request here deals solely with Council members, however, the discussion will focus on provisions as they apply to Council members.

2 As preliminary matter, we do not believe that as the facts are presented here, there are issues relating to the Maryland National Capital Park and Planning Commission. The NCPPC is a government agency established in Article 28 of the Annotated Code of Maryland. Its members are defined to be public officials under the Ethics Law (§15-103) and its employees are subject to ethics provisions required by the Subtitle 8 of the Ethics Law. The NCPPC is not a business entity for purposes of this Law. Moreover, the zoning ethics law itself (at §15-829(c)(3)) specifically excludes from the definition of applicant a municipal or public corporation and a public authority.

3 All of the individuals and Council members involved should be aware that this advice is based on the facts presented. It is not an adjudication of the factual representations involved.