01.04

OPINION NO. 01-04

In 1999, the County Attorney for Baltimore County questioned whether deputy sheriffs and deputy and assistant State's Attorneys were subject to the County's Ethics Law and in fact whether they were more properly subject to the State Ethics Law. Historically, this Commission had taken the view that elected State's Attorneys and Sheriffs were State officials as defined by the State Ethics Law but other employees of their agencies were subject to local ethics laws because the offices in our view were not executive agencies or units of State government.1

In 1993, in response to a request from another county which cited court decisions involving the Sheriff's Offices, we reviewed the jurisdictional question. In issuing Opinion 93-12, we stated that although the Maryland courts had found these entities to be State agencies for some purposes, these court cases were not a sufficient basis to change 14 years of Ethics Law history particularly in view of the local operational orientation of these entities. We affirmed our initial view that the Sheriff's Offices in the counties are not executive agencies in State government, and that their employees, other than the incumbent in the constitutional office of the Sheriff are not covered by the State Ethics Law. In our view they were to be covered by the local ethics law.

Baltimore County submitted a comprehensive written argument in August of 1999 taking the position it had no ethics authority over deputy or assistant State's Attorneys or deputy Sheriffs citing court cases and various statutes relating to the offices of Sheriffs and State's Attorneys suggesting these were State entities for some purposes. The County argued in part:

- Sheriff and State's Attorney's Offices are "other bodies in State government" for purposes of the definition in §15-102(m) (State Government Article, Annotated Code of Maryland, the Ethics Law) because the State is exclusively liable for their functions under the Tort Claims act, and because, at least in Baltimore County, they perform State functions;

- the Court of Appeals in Rucker v Harford County, 404 Md. 399 (1989), a case involving the Tort Claims Act, established "binding precedent" for viewing Sheriff's Offices as State, and subsequent Tort Claims Law amendment overrule dicta in case that suggest there are situations where Sheriff's employees might be local;

- the duties of the State's Attorneys are set forth in State law;

- the State's Attorney's Offices were carved out of the Office of the Attorney General, a body in State government, and therefore the State's Attorneys are also bodies in State government;

- Sheriffs, deputy sheriffs and attorneys in the State's Attorney's Offices are defined as State personnel in the Tort Claims Act;

- the Ethics Law definition of local official for Baltimore County lists two categories of officials, and by statutory construction all others are thus excluded from being covered.

Subsequent to this document, the County sent a copy of letter advice received from the Counsel to the Maryland General Assembly responding to a legislator's inquiry. Counsel concluded that the local government language in the Ethics Law could not be read to confer upon Baltimore County the authority to subject these State positions to regulation in its local ethics ordinance.

In the Summer of 2000, we submitted proposed legislation to the Governor for the purpose of clarifying the issues raised by Baltimore County and the Counsel to the General Assembly. This legislation proposed with the exception of certain State employees in the Sheriff's Office of Baltimore City to clearly state for the purposes of the Ethics Law that all non-elected employees of Sheriff's Offices and State's Attorney's Offices were covered by local ethics laws. It was our view local ethics laws coverage for these employees, which had generally occurred statewide, was the best functional approach, and in spite of court cases and the advice received, there was insufficient legislative intent to adopt a new opinion as to these matters.

The legislation was introduced as House Bill 108 in January of 2001. Commission staff testimony on the bill, however, made it clear that the need was to obtain legislative intent on this issue and the Commission could accept either jurisdictional approach. House Bill 108 passed the House of Delegates with two significant amendments. The first amendment made the Sheriff and State's Attorney's Office in each county "executive units" as defined in the Ethics Law thereby making all of the employees of those offices subject to the State Ethics Law. The second amendment created a broad and unprecedented financial disclosure filing exemption for employees of these offices for reasons which remain unclear and unjustified. The Commission staff testified in the Senate on House Bill 108 opposing the financial disclosure exemption while noting we had no specific opposition to State Ethics Law coverage but preferred local jurisdiction. The Senate ultimately passed House Bill 108 as amended by the House of Delegates thus communicating the General Assembly did not want to take action to make these employees subject to local ethics laws but did intend for State Law to apply.

On May 3, 2001, we requested the Governor to veto House Bill 108 for policy, program credibility and constitutional issues related to the financial disclosure exemptions granted in the legislation. The veto request letter specifically noted if the bill was vetoed the legislative intent of State Ethics Law coverage and not local law application could potentially be honored by an advisory opinion pending further consultation with the Attorney General. The veto request noted State Law coverage under these circumstances would render employees subject to financial disclosure where justified under current Law. On May 17, 2001, the Governor vetoed House Bill 108 citing as the reason the blanket financial disclosure exemptions and noting the State Ethics Commission accepts that the General Assembly has now expressed a clear intent these employees are covered by State Ethics Law.

On June 8, 2001, we advised the Attorney General of our intention based on the Law, past history, court decisions, related statutes and recent legislative action to issue an opinion finding for the purposes of the Ethics Law that the Offices of Sheriff and State's Attorney in each county are executive units and any of their employees who meet the standards will be required to file financial disclosure. Section 15-104 of the Ethics Law specifically assigns the State Ethics Commission this role and general administrative law assigns to us the interpretation and application of the Ethics Law. See State Ethics Commission v Antonetti, Sr., No. 111 September Term 2000. The Attorney General was specifically asked whether any of the facts or new legal developments would suggest a different course of action. On June 18, 2001, the Chief Counsel for Opinions and Advice advised the Commission that the Office of the Attorney General had no objection to the proposed course of action.

The Offices of State's Attorney and Sheriff are very important public offices in each county and need to be subject to the highest standards of ethical conduct. Although there was some doubt as to whether these standards should be set at the local or State level when the Ethics Law was enacted in 1979 subsequent court cases, laws, and legislative consideration now make it clear these agencies are executive units for the purposes of the State Ethics Law. One benefit of this approach will be uniform ethics standards for the employees of these offices which deal with implementing State laws and procedures. Ft#2

Charles O. Monk, II
    Dorothy R. Fait
    Michael L. May
    Bruce D. Poole
    April E. Sepulveda

Date: October 29, 2001

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1 Section 15-102(ee) specifically defines State official to include a state's attorney and a sheriff. Public officials are defined in §15-103 and employees in §15-102(g). Executive unit is defined in §15-102(m) to mean "a department, agency, commission, board, council, or other body of State government that is established by law and is not in the Legislative Branch or Judicial Branch of State government." These definitions formed the basis of the Commission's approach to initially look to whether the agency or unit was an executive agency since inclusion as an employee or official flows from an individual's affiliation with an executive unit.

2 Each office will be notified of this opinion and the State financial disclosure program which is a vital part of any government ethics law will be implemented on an office-by-office basis based on §15-103 that provides the standards to determine which employees will be required to file.