OPINION NO. 81-4
The State Ethics Commission has received several requests from Physicians (as well as a few Ph. D. personnel) at Springfield State Hospital (the Requestors) concerning the application to them of the financial disclosure provisions of the Maryland Public Ethics Law (Article 40A, §1-201(z) and 4-102, Annotated Code of Maryland, the Ethics Law).
Section 4-102 of the Ethics Law provides that each official (including public officials) holding office during a calendar year shall, on or before April 15 of that year, file a financial disclosure statement covering the prior calendar year. The fundamental issue here is the interpretation and application of the term "public official" as set forth in §1-201(z) of the Ethics Law. Subsection (1) defines a public official as "any individual in the executive branch, or in an executive agency of the State government who...is classified or compensated at grade level 18 or above...." The Springfield Hospital Center is a State hospital within the jurisdiction of a principal cabinet department, the Department of Health and Mental Hygiene (DHMH). Its employees are State employees filling graded positions within the State merit system. Hospital management reports to the Mental Hygiene Administration, which is within the organizational responsibility of the DHMH's Assistant Secretary for Mental Health and Addictions. It therefore is clear to us that the Requestors of this opinion all serve in the executive branch as contemplated by §1-201(z) as they are all employed in a principal cabinet level department of the executive branch of State Government.
Section 1-201(z)(1) includes as public officials persons serving in the executive branch if they are classified or compensated at grade level 18 or above. In implementing the financial disclosure program, the Commission determined that its staff would identify individuals in the State personnel system based on their being a Grade 18 or higher or being compensated in a flat rate system in an amount equal to the base of a Grade 18. It was further determined that individuals serving on a part-time basis would be identified based on their current annual salary or classification since they fill positions that carry with them responsibilities of the higher salary, even though they only do so on a part-time basis.
Based on this determination, Commission staff coordinated with the Department of Personnel, which conducted a computer search of its records, identifying individuals serving in positions classified at a Grade 18 or higher or filling positions at which the annual compensation was identified as exceeding $19,619 (the base salary of a Grade 18 as of January, 1980). Commission staff distributed computer print-outs to personnel officers in each agency identifying all individuals who met the criteria, and requesting that they distribute the forms and return the print-out with an indication that each individual was contacted.
The Requestors were all identified in the Personnel print-out and have subsequently been confirmed as having classifications or salaries at or above grade level 18. The Requestors have indicated their belief that as they do not engage in contracting or management decisions, they should not be included in the Ethics Law's financial disclosure program. However, we believe that this language of the Law is clear in its definition of public officials and that their proper identification by the Commission's procedure is determinative. This Commission does not have authority to exempt or exclude regular compensated executive branch employees from this class of officials. This view is consistent with the position taken by us in Ethics Commission Opinion No. 80-21 concerning treatment of professors at community colleges as public officials under the Ethics Law. We concluded there that §1-201(z)(1)(i) properly sets out a salary-based criteria for inclusion that stands on its own. We therefore find that the individual Requestors of this opinion are public officials required to submit financial disclosure statements pursuant to §4-102 of the Ethics Law.
These Requestors have also raised privacy concerns that they believe are inherent in their unique position as employees of a State mental institution. Each individual indicates that the disclosure of information concerning the personal residence address "poses a definite threat to me...." Each notes that given the nature of their employment and the characteristics of the people with whom they work they are "particularly vulnerable to those patients who request this information...with malicious intent." We recognize the concerns expressed by these individuals. Since the front page of the disclosure statement, which requests the filer's home address, reflects an administrative determination by the Commission, we believe that we have some flexibility to take account here of unique and special concerns. We therefore conclude that persons submitting the form who are concerned about providing home addresses in this way may complete this portion of the statement by providing a complete and accurate business address.
It should also be noted in this regard that the Maryland Public Information Law (Article 76A, Annotated Code of Maryland), which was amended in 1980, specifically provides that, unless otherwise provided by law, custodians of public records shall not disclose home addresses of State employees (Article 76A, §3(c)(x)). It is therefore Commission policy not to disclose a home address that appears in the general information section on the front page of the financial disclosure statement.
As noted above, however, the Public Information Law recognizes that there may be other laws establishing provisions inconsistent with its limitations and not superseded by it. Section 4-103(a) of the Ethics Law establishes a requirement for disclosure of information concerning interests in real property. We do not believe that we are authorized under the Ethics Law to modify the reporting requirements so specifically set forth in the Law.1 Nor may we refuse disclosure of information provided concerning interests in real property, including personal residences; §4-102(e) of the Ethics Law specifically provides that statements "shall be made available by the Commission...for examination and copying by the public...."
Section 4-103(a)(1), however, provides that, as to each interest in real property, the filer shall include the location of the property "by street address, mailing address or legal description of the property." Thus, it is our view that individuals such as the Requestors, who are concerned about public disclosure of their home address, may opt for whichever one of these statutory alternatives that provides the least easily available identification of their home address. We believe, however, that if an individual's personal residence is real property in which he has an interest, then it must be disclosed on Schedule A of the disclosure statement and its location included in one of the three ways set forth in §4-103(a)(1). This information must be available to the public in accordance with §4-102(e) of the Ethics Law along with the remainder of the disclosure statement.
As the Requestors all served in positions as public officials in 1980 prior to the April 15 reporting date, they are required under § 4-102 of the Ethics Law to submit a financial disclosure statement covering calendar year 1979.
Mr. Calvert was a member of the Commission 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: March 10, 1981
1 The specific authority to modify the Law's provisions only as to members of boards and commissions tends to indicate that such authority was not intended to exist as to other individuals subject to the disclosure provisions.
2 It should be noted that interests in real property include leasehold interests.