98.04

OPINION NO. 98-04

Ethics Commission advice has been requested as to whether a judge in the Maryland Tax Court (the Requestor) may serve in a paid political position of a congressional campaign. We advise that this secondary employment is only allowable with certain constraints and controls as set forth below.

The Maryland Tax Court is an independent agency of the Executive Branch of State Government. It consists of 5 judges appointed by the Governor to 6-year terms, and the Governor designates the Chairman. Three of the 5 judges must reside on the Eastern Shore, in Western Maryland, or in Baltimore City, respectively. The remaining two judges are appointed from the State at-large. No more than three of the members may be from the same political party and two (including the Chairman) must be attorneys admitted to practice law in the State. The Court hears (on a de novo basis) appeals from decisions of State agencies or any assessing or taxing authority regarding the valuation, assessment or classification of property, or the levy, abatement or reduction of any tax or any tax exemption. It also hears appeals from allowances or disallowances of claims for refunds of taxes, and cancellations of Motor Vehicle Fuel Dealers licenses.

The Requestor is a non-lawyer appointed in 1994 to an at-large position on the Court. According to the Chief Judge, he handles primarily residential real estate appeals and pursuant to the Law is not authorized to issue final decisions alone. The Requestor may hear a case with another judge, or if the hearing itself is only before him, the decision must be concurred in by one of the attorney judges. The Chief Judge advises that the parties to these cases tend to be land-owners and assessors and the properties at issue are usually owner-occupied houses without substantial dollar amounts at stake. Both the Requestor and the Chief Judge indicate that the Requestor's workload can at this time cover the entire State and does not focus on the area included in the Congressional district of the individual on whose campaign he serves as his secondary employment. Rather, the Requestor states that his caseload focuses primarily in Anne Arundel and Montgomery Counties.

The Requestor also indicates that, though in a rare situation he may have a case that involves a rental unit, generally he hears homeowner-occupied appeals that come from the Assessments Office through the local Property Tax Assessment Appeals Board and tend to have limited dollar value issues. He also says that his decisions are subject to further substantial review, acknowledging, however, that though occasionally a question may be asked about the rationale for a particular approach, none of his decisions has ever been substantially altered or reversed in this internal review. The Requestor's position as Associate Judge is part-time, involving about 4 days of hearings a month, where he may hear anywhere from 3 to 8 cases in a day. His compensation is just over $25,000 per year.

The Requestor has been involved in a variety of politically related positions, and began employment with a Maryland Congressman in December 1998. He describes his position as that of political director focusing on strategy. This involves, for example, figuring out where and how to build a coalition to support the Congressman's reelection, how to present the candidate to the media, getting a sense of the district and its concerns/views, and developing a plan about where the candidate should appear and the logistics and details of these appearances in both the short and the long-term. According to the Requestor, this activity tends not to involve interaction with particular entities or individuals regarding particular pending matters, but to focus more on general issues and community concerns. He says, for example, that tax policy issues would come up only in very broad national public policy discussion. The Requestor also indicates that his fundraising efforts in connection with the campaign would take the same approach. He would be involved in developing strategy and budgets, generally considering how much the campaign would cost and setting goals for categories of donors such as individuals, PAC's, etc. He says that he does not as a general matter go to fundraisers and does not directly solicit campaign fund support from individuals or businesses that he might encounter in the context of his official duties.

This situation presents issues regarding political activity by State employees that have been previously considered by the Commission in a variety of circumstances. More particularly, in our Opinion No. 80-2, we advised, consistent with State personnel policy, that State employees may participate in political campaigns (State Personnel and Pensions Article, §§2-304 and 2-307(b)). This activity must be consistent with personnel law prohibitions against political activity while on State time or at the State job location, and against an individual being required to contribute or render political services. Moreover, we have in our previous opinions and in a summary memorandum on political activity, advised employees that the general authority to engage in political activity may be controlled to some extent by application of the conduct provisions of the Ethics Law, particularly the employment impairment prohibition of §15-502(b)(2) of the Law (State Government Article, §15-502(b)(2), Annotated Code of Maryland), as well as the participation, prestige and information provisions of the Law (§§15-501, 15-506 and 15-507).

We have, for example, advised that service as a paid campaign worker may generally raise the same issues and guidance as volunteer activity (such as no use of State time, facilities or materials and no misuse of position). However, because paid campaign work is employment, there is also possible further application of the Ethics Law under the employment restriction provisions in §15-502(b). For example, an employee generally may not have campaign employment with an entity that does business with their agency or that would impair an employee's ability to do their State job. This could, for example, apply to prohibit employment with a campaign advertising agency if the agency was also involved in certain State activity with the employee's agency. Also, it is possible that campaign employment, such as working for a campaign staff, while continuing in a State position, could raise questions about the ability of an employee to be objective in his or her State job. This added limitation relating to employment generally means that paid campaign workers must maintain a clear separation between working at a State job and handling matters for a campaign or campaigns. Moreover, we have advised individuals (including members of State boards) who are running for office or engaging in compensated or volunteer campaign work that they should avoid any solicitation activities as to individuals appearing before their board, and should not participate in board activities in matters involving known campaign contributors.

In considering the application of these principles to the situation presented by the Requestor, we conclude that this activity is not prohibited by the Ethics Law, but it must be carefully monitored and function within certain constraints. Our advice is based, for example, on information provided by the Chief Judge regarding the nature of the Requestor's assignments, and his final authority. We assume that in fact his caseload continues to be limited to residential appeals of limited dollar value, and that he does not become involved in commercial or related appeals that may present significant policy or economic issues. We also advise that the Tax Court should undertake to avoid assignment to the Requestor of any cases involving taxpayers or properties in the geographical area included in the Congressman's district, or known contributors to the Congressman's campaign. Moreover, considering the Requestor's duties as the Congressman's political director, we believe that this secondary employment may continue only to the extent that in fact the Requestor refrains from direct campaign solicitation, and also that he avoids involvement in development of property tax policy or direct constituent or campaign policy responses relating to property tax issues.

While we acknowledge that there may be certain appearance issues resulting from this type of dual service, it is our view that the conduct provisions of the Ethics Law must be taken into account and be applied to individuals with the expectation that they will be strictly complied with, but we do not necessarily believe that potential issues under these provisions result in a conclusion that a relationship is strictly prohibited as matter of law. Our advice in this opinion is based on the facts and information provided by those involved in this request, that these two activities can be conducted in strict compliance with the conduct provisions of the Law without conflict of interest. If any issues arise that suggest this is not possible then further review may be required.

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

Date: August 4, 1998