98.06

OPINION NO. 98-06

Ethics Commission advice has been requested as to whether a Special Secretary in the Office of the Governor (the Official) may accept travel and substantial related expenses in connection with a trip to Israel from an organization registered to lobby. We advise, based on our review of the itinerary and background of this situation, that this is not a gift permitted by the gift exception provisions of §15-505(c) of the Ethics Law (State Government Article, §15-505(c), Annotated Code of Maryland).

Trips to Israel sponsored by private parties and offered to public and State officials have occurred in the past. Where the sponsoring organization has been a lobbying entity and the recipient has been subject to State Ethics Commission authority, these trips have been reviewed by the Ethics Commission and, based on indications of proposed activities by the participants and in part on the generally limited lobbying activities of the organizations, were allowed depending on the circumstances. In one situation, however, a spouse was not permitted to participate, and in another, a former State Treasurer was told she could not take a trip given pending issues relating to purchase of Israeli bonds. In a more recent consideration involving a member of the Governor's staff, there was some concern that the offer and acceptance of these trips needed greater scrutiny, particularly in view of the fact that the lobbying focus of the sponsoring organization has been expanding. These concerns were communicated to the lobbyist for the donor, suggesting that these situations need to be carefully considered and should not be assumed to be permissible under the Ethics Law.

Nevertheless, the particular trip presented here was offered to the Official and accepted. We informally advised the donor and recipient prior to the trip that the gift would appear not to be acceptable under the circumstances presented. The Official has now asked for a formal opinion. According to the printed itinerary for the trip, it included a variety of special event dinners and luncheons, several meetings and panels involving presentations by Israeli officials and other local presenters, various tours and sightseeing visits, and a certain amount of free time for participants. Though there are a few panel discussions and meetings, at no point is the individual identified as a speaker or panel member. The trip lasted 10 days and is listed on the organization's lobbying report with a value of $3,900.

The Official here is a senior official in an agency whose mission is to ensure a stable, safe and healthful environment for children and families in Maryland. The agency has a substantial coordinating role with other agencies that provide services directly to families and children, including analysis of departmental plans and budget requests, review of fund uses and sources, coordinating with local agencies, and providing advice to the Legislature on the needs of children and families. The agency thus has significant interaction and involvement with a substantial number of State human services programs relating to children and youth, and has a defined role in legislative consideration of such programs.

The donor of the trip is an employer of several regulated lobbyists who are registered pursuant to Subtitle 7 of the Ethics Law. It is described as a community relations agency, and lobbying registrations filed by its registrants identify its matters of interest as including health care, shelter and nutrition, housing, welfare grants, and civil rights. The registrations reference both legislative and executive branch lobbying activities. In its most recently submitted activity reports the organization disclosed a total expenditure of $38,866.39 by its three lobbyists, including in addition to compensation a special event and the $3,900 attributable to the Official's trip. In recent years the organization has registered several lobbyists and had increasing visibility and involvement in social services and human services issues likely to be of concern to the Official and her agency and those with which she interacts.

The Ethics Law in §15-505 presumptively prohibits gifts from lobbyists to officials or employees in State government, and also bars a regulated lobbyist from making a gift that he or she knows or has reason to know may not be accepted by the official or employee. This trip is a gift from a lobbyist that comes within this prohibition. Though §15-505(c) lists exceptions to this general bar, they are allowable only based on a determination under introductory provisory language and when there is a clear showing by the donor/donee that the gift comes within one of the listed limited exceptions. Initially even as to exceptions, a gift may not be accepted if it would impair the individual's judgment. More importantly, if a gift is of significant value (as is the case here) it may not be accepted if it would give the appearance of impairment. In applying the exception provisions we have generally advised that even if this general provisory language is met, the gift must also fit clearly within the strict language of the exceptions listed in §15-505(c).

The only one of these exceptions that could apply to this gift is the allowance in subsection (c)(vi) of reasonable travel and related expenses in return for participation on a panel or speaking engagement at a meeting. We have considered the itinerary information provided regarding this trip, as augmented by the Official's indication that she was involved as a panel moderator and joined in a panel discussion at one of the evening events, and believe that this situation is not one that can be brought within this exception. In our view the activities described are incidental to a much more substantial activity. The 10-day $3,900 value of this trip is out of proportion to the Official's limited involvement. Fundamentally, this event was not a speaking engagement and the Official was not invited for the purpose of participating in a panel. The Ethics Law's generally negative approach to acceptance of gifts by officials and employees demands a careful application of exception provisions, particularly where the gift is of significant value, and in our view this type of trip is simply not the kind of activity that was intended to be covered by the exception language of §15-505(c)(vi).

We therefore advise the official and the lobbyist and lobbyist employer in this situation that the payment of the expenses in connection with this trip is a gift covered by the prohibition of §15-505(b) of the Ethics Law and that an exception cannot be applied to allow its acceptance by the Official. We also suggest to the donor that in the future such invitations should not be extended to officials and employees in the Executive Branch (or otherwise subject to Commission authority) without the prior review by the Commission.

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

Date: September 17, 1998