96.12

OPINION NO. 96-12

A request has been presented from an Environmental Program Manager in the Department of the Environment (the Requestor) as to whether he is a public official required to file financial disclosure. Based on the duties and responsibilities for this individual's position, we confirm our previous determination that an incumbent of the individual's position is a public official required to file financial disclosure pursuant to Subtitle 6 of the Ethics Law (State Government Article, Title 15, Subtitle 6, Annotated Code of Maryland, the Ethics Law).

The Department of the Environment was created in 1987 with the task of protecting and restoring Maryland's environment and safeguarding the environmental health of the State's citizens. Its responsibilities encompass enforcement and regulation, long-term planning and research, and technical assistance to industry and communities in their efforts to handle pollution, waste disposal, and emergency spills of waste or oil. In particular, its Waste Management Administration provides for the safe collection and disposal of solid wastes, regulating and inspecting industrial and public facilities that treat wastewater, and also deals with control of hazardous substances. The Solid Waste Program within this Administration reviews scientific information needed to support application for new solid waste facilities and inspects and enforces regulations at permitted and unpermitted disposal facilities. Regulated facilities include municipal sanitary landfills, rubble landfills, land clearing debris landfills, non-hazardous industrial waste landfills, municipal incinerators and waste-to-energy facilities, solid waste processing and composting facilities, solid waste transfer stations, sewage sludge utilization and management sites, sewage sludge composting facilities, natural wood waste recycling facilities, and scrap tire handling facilities. The Program is responsible for approximately 70 permitted and 70 proposed facilities at any given time, as well as up to 40 —50 enforcement actions and hundreds of complaint investigations per year. The program is a sensitive program designed to protect the public health, and involving various levels of government and the private sector in sometimes controversial situations.

The Requestor is one of two section heads in the Field Operations and Compliance Division of the Solid Waste Program. He is a Grade 19 Environmental Program Manager I. According to his position description the function of the position is to plan, coordinate and direct a Statewide program for the monitoring of environmental conditions at landfills, solid waste facilities, and sludge use and disposal sites, and investigation and remediations of such facilities. Particularly, his position description calls for developing standard monitoring operating procedures, supervising section personnel (including assigning priorities), directing the acquisition of specialized equipment and instrumentation, developing special procedures, interfacing with other programs to provide specialized training programs, and assisting in budget preparation. He is involved in legislative coordination and represents the Program at hearings and meetings with federal, State and local agencies. The position can also be involved in issues relating to illegal dumping. Typical decisions include, for example, determining "if a municipal government or responsible party is taking the necessary actions to provide proper closure of a landfill or solid waste facility," and deciding "through empirical and statistical analysis of groundwater study data, if a site represents a significant threat to human health and the environment."

The primary focus of the Requestor's section is on landfills (all but one of which are municipal operated) and reviewing data from the monitoring of groundwater contamination from such facilities. The Division administers substantial federal and State requirements for groundwater monitoring under which landfill operators must have and implement monitoring plans consistent with the requirements. These include the collection of substantial data on an ongoing basis that relate to the size of the facility, the amount of garbage being deposited, and actual groundwater sampling. The Requestor's section reviews this data to ensure that it is collected in accordance with the operator's plan, as well as substantively to determine any implications that the data may have for environmental health and safety.

Stating that to some extent this process is mechanical, the Requestor and his supervisor nevertheless acknowledge that the work requires knowledge and scientific background and there is some discretion involved. Apparently there may occasionally be differences of opinion with operators as to what the data means. Also, the Requestor indicates that where data suggests a groundwater problem, remediation, including closure of a facility, may be required. This process may involve direct negotiation with an operator, and submission of documents in support of its position. These materials are reviewed in his section and recommendations for agency response developed with his assistance. The Requestor's position description also includes other duties reflecting that his section is a catchall for some operations and may be called upon to do some sampling. In connection with this activity occasionally equipment is required for collection of samples. The Requestor may make a recommendation for this purchase, which could involve some very inexpensive items such as a $100 soil auger, or more expensive equipment such as a $3,000 photoionization detector.

The addition of the Requestor to the financial disclosure filing list was a part of a general review by this Department that over the past year has resulted in the addition of more than 75 positions to the filing list. The agency has apparently taken the general view that its personnel who are above the Grade 16 salary threshold and are involved in environmental regulation and enforcement should as a general matter be considered for inclusion in the disclosure program. Its filing list includes many Grade 17 Sanitarian VII's, Grade 17 and 18 Public Health Engineers, and many Environmental Program Managers ranging from grades 17 to 20. Recommended additions and deletions are reviewed as part of a statutory process involving both the Ethics Commission and the State Department of Budget and Management (DBM). Agency requests for addition are submitted by the Ethics Commission to DBM for review as required by §15-103 of the Ethics Law, and the resulting recommendations are in turn reviewed by the Commission.

This process involves application of the criteria in §15-103 of the Ethics Law for designation of individuals as public officials required to file financial disclosure. This section provides that individuals in the Executive Branch are public officials if they are compensated at a base of a State grade level 16 and have decision making authority or act as a principal advisor to one with that authority in making State policy in an executive unit, or in exercising quasi-judicial, regulatory, licensing, inspecting or auditing functions, and if their duties are not essentially administrative and ministerial. In implementing and applying these provisions since their enactment in 1981, the Commission has, we believe properly, reflected the Law's view that individuals at middle management levels who may not have final decision or signature authority, nevertheless could have such substantial impact on agency policy, regulation, inspection and related decisions that their disclosure and accountability under the Law is appropriate. In particular, we advise agencies as to the question of advisory status, that being considered a principal advisor usually means that "the person will provide advice on a regular basis and usually directly to the person with decision making authority in making policy, or in exercising quasi-judicial, regulatory, licensing, inspecting or auditing functions," and should "have advisory duties that are significant, and involve discretion."

In our view application of these principles to the particular job duties assigned to the Requestor's position requires the conclusion that the Requestor has been properly identified as a public official subject to the financial disclosure requirements of the Law. He is a Grade 19 section head in a unit where his Grade 17 counterpart has been identified and does file. He participates in a licensing and inspection program that could result in significant economic consequences for landfill operators and health consequences for the public. It is a sensitive program involving all levels of government and subject to controversy. Though he characterizes his functions as "technical," and his supervisor indicates that his unit does not entail the full direct inspection, investigation and enforcement activities as the Program's other section, we believe that the Requestor's position description establishes him as a principal advisor to persons involved in making State policy and implementing a regulatory and inspection program. Under the circumstances, we advise the Requestor and his agency that his position has been properly identified as covered by the disclosure program and that his financial disclosure statement should be submitted in accordance with the requirements of Subtitle 6 of the Law.

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

Date: December 11, 1996