OPINION NO. 00-02
Two individuals who are members of two local Property Tax Assessment Appeals Boards on Maryland's Eastern Shore have requested advice as to whether they may also serve as elected members of their respective county party central committees. We advise that as a general matter, persons involved in this sensitive property tax adjudicative function may not also hold elective political office in their jurisdiction. In view of the particular circumstances of these two situations, however, we believe that this service can continue at this time, as long as the specific facts and situations do not change.
The Property Tax Assessment Appeals Board system was established in 1977 to hear appeals from property owners of determinations made and considered on a preliminary appeal by the Supervisors of Assessments in the respective counties and Baltimore City. Each jurisdiction has a PTAAB consisting of 3 regular members and one alternate appointed by the Governor from a list provided by the jurisdiction's governing body or chief executive. Members serve for 5-year terms and are compensated at an hourly rate. Boards have the authority to consider appeals from individuals or entities of Department of Assessments and Taxation property valuations of residential, commercial, industrial and agricultural property. They also have authority to consider appeals from certain tax credit determinations, tax exemption rejections, and decisions regarding agricultural easement values. A Board's potential jurisdiction includes any property within the county's geographical boundaries, except for government-held property. Most of the business for the Boards, however, is individual appeals of residential property assessments.
According to the PTAAB State Administrator, part of the intention in making the assessment function a State function was to remove this process from the policy and economic development pressures that varied within the different jurisdictions, and to make the valuation process separate from those who set the tax rate. Thus, he indicates, the Boards tend not to interact with the local political leadership or decision process. Also, he advises that the appeal function in the PTAAB's is not designed to be a technical review based on precise formulas or precise criteria. It is to be an unbiased review of the Assessment Office's determination of value. Appeal to the PTAAB includes participation by the property owner and the local assessments office. The burden of proof is on the taxpayer to show error in the assessment.
The Central Committees are established pursuant to provision in the State Election Law, Article 33, beginning at §4-201. The law provides for each political party to have a State Central Committee that is its governing body and may be composed of the Central Committees of the counties during their terms of office. Section 4-202 further provides that a principal political party elects county Central Committee members for 4-year terms at a primary election including the number of members as determined by the party's constitution. Generally, each committee selects its own chairman, and members are required to reside in the county. The various local committees may have special provisions that define the composition of the committee.
Requestor A in this situation has served with her County's Democratic Central Committee since 1996, when she was appointed to fill an unexpired vacancy. She has since run for the office and been elected to a full term. This opinion results from a request for reconsideration of informal advice we have previously provided in connection with her appointment and election to the Central Committee, as well as a subsequent inquiry from the Governor's Appointments Office regarding another appointment being considered that suggested similar issues. Requestor A has served on the PTAAB for 15 years. She sits on all cases, but indicates that the workload in this particular County is quite limited. The service may involve a few days in early Spring and a few again in June, with probably no more than a dozen cases. She says that she has seldom had to recuse herself and never because a taxpayer was a political colleague. She indicates that she hardly ever knows a person who is presenting an appeal and has never had family or friends file appeals.
As to her election to the Central Committee, Requestor A advises that there were 11 candidates for 7 positions. She says she paid the filing fee and with a local ticket bought one advertisement right before the election. She says that neither she nor the ticket raised any money, put up any signs or otherwise campaigned in the election. Reports filed with the local Board of Elections are consistent with this advice. This Requestor states that the Central Committee's primary function is to recommend nominees for appointment to fill a vacancy in office. She says the committee meets quarterly and does only limited fundraising. It apparently holds a breakfast supported by local business people and encourages people to vote for the party's candidates, but otherwise does not get involved in political campaigning activities.
Requestor B has served on her County PTAAB for 5 years. She says that it is not a very busy Board, meeting 3 or so days each in the Spring and the Fall and maybe occasionally at other times. The cases tend to be primarily residential with a few commercial. She says that in the years that she has been on the Board she has never had to recuse herself because she knew or had any affiliation with a taxpayer. This Requestor had been an elected County official in the past and has been active in politics in the County. She says that when it was suggested that a Central Committee candidate was needed she agreed at the last minute before the election to put her name on the ballot. She says that she basically had no campaign, neither raising nor spending money or campaigning for the Central Committee office. This also is consistent with reports received from the local Board of Elections.
The Public Ethics Law (State Government Article, Title 15, Annotated Code of Maryland) includes an employment impairment provision in §15-502(b)(2) prohibiting officials and employees from having secondary employment that would impair their impartiality or independence of judgment. We have generally advised that service on the operational or governing board of a private entity can be viewed as employment even when it is not compensated, and under this approach we believe that Central Committee service must be viewed as employment. Also, §15-506 of the Law prohibits an official from using the prestige of their office, and §15-507 bars the personal use of confidential information obtained in one's official position. We have applied these principles in several circumstances involving political activity, including running for and serving on Central Committees. In our initial opinion in this area, for example, we advised that political activity, including running for office, is generally not barred for State employees and officials.1 (Though the initial basis for this approach was specific language in the State personnel law, the Commission has taken the view that similar principles should apply to part-time appointees to State boards and commissions.)
In Opinion No. 80-2, however, it was noted that while there is no strict prohibition against running for office, serving in the office if elected would likely be employment that could be subject to the employment limitations of §15-502. Subsequently in Opinion No. 85-13, a hearing examiner at the Public Service Commission was advised that he could not serve if elected to the Baltimore County Council, given the nature of the constituent interaction and the sensitivity of his State position. More significantly for the issues presented here is Opinion No. 98-4, where a Tax Court judge was advised that while he could have employment with an elected official, he could not be involved in political fundraising activities.
Political activity and elected service issues have also been presented by persons involved in the tax and assessment process. In Opinion No. 88-3, for example, an individual assessor in a local office was permitted to run for and fill an elected position in a municipality located in a neighboring county based upon the assurance from his agency that his work responsibilities were totally within a jurisdiction other than the area where he would be serving on a municipal governing body. A similar approach was taken to an individual employed as a retail sales tax auditor in the Office of the Comptroller who was permitted to run for and serve on a municipal governing body given his Comptroller assignment totally in a jurisdiction outside of the municipality. Different advice was provided, however, to an assessor in a County office who wanted to run for the Town Council of a municipality within the jurisdiction of the Assessments Office where he was employed. In this situation the Commission expressed some concerns that he would have constituents that are subject to the authority of his office, and that he would be serving on the governing body of an entity with an interest in the assessed values and general tax base of property within its jurisdiction.
In considering requests from individuals for advice about political activity and service in elective positions, the Commission has been concerned about situations where there is fundraising and constituent service activity that might suggest conflicts between the State service and the elected office, particularly where the constituencies of both positions are pervasive and overlap. With regard to political campaigning and fundraising, in particular, the Commission has advised individuals of the continuing application of the prestige and information provisions of the Law and the need to avoid circumstances where a person's position may figure in private campaigning, or where information (such as mailing lists) available in a State position is used as a part of a campaign plan. Individuals are consistently advised to take care in campaign activities about soliciting campaign funds or assistance from individuals who are subject to the agency's authority or that are vendors or likely vendors to the individual's agency employer.
Ethics Commission preliminary advice provided in the requests involving dual PTAAB service and Central Committee service reflected these concerns about the overlap of constituencies, given that the Central Committee is a county-wide elected position and the PTAAB has at least potential authority over all properties and property owners in the county. We continue to believe that this approach should apply as a general matter. In our view, persons who have adjudicatory responsibilities relating to sensitive tax issues that impact on the economic interests of persons and entities in the same population served by a Central Committee should not be running for and serving as elected officials in the local political committees. We believe that as a general matter the involvement in political fundraising and campaigning has to be presumed when elective office is involved, and are concerned that employment impairment, prestige, and official information issues are raised when such persons also sit in judgment on tax cases. That the political role and office held in a local party committee would be known to tax appellants must be assumed, and would, we believe, create appearance concerns relating to the integrity of this important process that are intended to be addressed by the conduct provisions of the Ethics Law.
We thus advise as a general matter that these types of affiliations cannot be carried out without a conflict of interest arising. In regard to the specific circumstances of the situations presented here, however, we note that these Requestors serve in counties having very small populations. We are advised by them and the Administrator, that the workload of their respective Boards is not only light, but tends to be primarily residential, rather than including commercial and other business related properties likely to involve politically impacted development and similar issues. We also note that the history of the service of these two particular individuals appears to suggest that their political party affiliations have not impacted on their Board service. Further, they both advise that their own particular political activity has involved no fundraising or campaigning, and that their party committees tend not have significant visible activities in the jurisdiction. Also, the Administrator believes there has been no actual conflict in these situations, and that potential issues can be avoided.
Under these circumstances, assuming the accuracy of the presentation to this Commission, it appears that there has been no showing of actual conflict in either situation, and there has also apparently been no allegation of such conflict by those appearing before these Boards. We therefore conclude as to these specific situations that the dual affiliations may continue as long as the facts do not change and the situations function without incident. This means that fundraising by these individuals should be avoided, and official position may not be misused in connection with political activities. Also, Board information must be protected and partisan politics clearly separated from decision making. If the facts change as to either Requestor, then the individual should resign immediately. Moreover, of course, if a Requestor fails to comply with the guidelines of this opinion, then appropriate enforcement action would need to be taken.2
Charles O. Monk, II, Chair
Dorothy R. Fait
Michael L. May
April E. Sepulveda
Date: April 12, 2000
1 No. 80-2. Opinions published in COMAR Title 19A.
2 We want to make it clear to the agency and the appointing authority, however, that exception in these situations is based on the quite particular circumstances of these Re4questors. We continue to believe as a general matter that these types of political affiliations by members of PTAAB's present significant potential for concerns under the conduct provisions of the Ethics Law and should not occur if violation of the Law is to be avoided.