80.11

A member of the State Roads Commission, who is consequently also an ex-officio member of the Maryland Transportation Commission, has asked us whether it is permissible for him to lease facilities to the Motor vehicle Administration, and several other agencies not connected with the Department of Transportation. This request involves our application of §3-103(a) of the Maryland Public Ethics Law (Md. Code Ann., Article 40A, the Law).

The State Roads Commission (the Commission) is a board within the State Highway Administration. The Commission consists of eight members appointed by the Secretary of Transportation with the approval of the Governor for four year terms. Pursuant to Article III, section 40B of the Constitution, the Commission is responsible for acquisition, by condemnation proceedings, of property needs for State highway purposes. (Ann. Code of Md. Transportation Article, §§8-210—8-218). The seven regional members of the State Roads Commission also served as ex-officio members of the Maryland Transportation Commission (MTC). The Maryland Transportation Commission is directed to "study the entire transportation system of this State and regularly discuss with the Secretary any matter relating to this State's transportation system." The MTC is also directed to "advise and make recommendations to the Secretary and the heads of the units in the department on all matters that concern transportation policy formulation and program execution." (Md. Code Ann., Transportation Article, §2-205.) The Motor Vehicle Administration, the entity with which the Official is contracting, is one of the units (one of seven administrative branches) of the Department of Transportation.

The Official is an individual appointed to serve as one of the Regional Commissioners of the State Roads Commission, and in this capacity also serves as an ex-officio member of the Maryland Transportation Commission. As an appointee to an executive agency, he is therefore a public official as that term is defined in §1-201(k) and (z) of the Law. Section 3-103(a) of the Law prohibits such an official from being a party to a contract with a State agency with which he is affiliated. This Official is affiliated with the Motor Vehicle Administration because his position on the Maryland Transportation Commission enables him to advise the Secretary of the Department of Transportation about matters affecting Motor Vehicle Administration policy formulation and implementation. We believe that the statutory authority of the Maryland Transportation Commission envisions substantial input by the MTC in all transportation matters; this legislative assignment of responsibilities is the key to our determination, whether or not the MTC actually exercises such broad powers and duties.

We therefore conclude that as long as the Official retains his position with the Maryland Transportation Commission, he is prohibited from leasing facilities to the Motor Vehicle Administration pursuant to the proscriptions of §3-103(a).Leases with other State departments do not appear to raise a problem as long as other provisions of the Law are not violated.

Mr. Calvert was a member when this case was considered and decided, but resigned prior to the issuance of the formal opinion.

Herbert J. Belgrad, Chairman
   William B. Calvert
   Jervis S. Finney
   Reverend John Wesley Holland
   Barbara M. Steckel

Date: June 13, 1980