06.01

OPINION NO. 06-01 STATE ETHICS COMMISSION

February 17, 2006

The President of a Board of County Commissioners (hereinafter "President" or "Requestor"), in his capacity as an elected member of the Board, has requested an advisory opinion regarding his County's Ethics Ordinance. He has asked whether the conflict of interest provisions of the County's Ethics Ordinance are similar to the conflict of interest provisions in Subtitle 5 of the Maryland Public Ethics Law, Md. Code Ann., State Gov't Title 15 (Supp. 2005) and whether the County is in compliance with the requirements of Section 15-804. In particular, the President has requested whether the County's ethics ordinance provisions that allow county officials and employees to receive "gifts of tickets or free admission . . . to attend a professional or intercollegiate sporting event . . ." as "a courtesy or ceremony extended to the office" are similar to the requirements for State officials and employees. For the reasons set forth below, we advise that the provision is not similar to the State provision in that it allows free admission and tickets to sporting events to be received by county employees and non-elected officials. We further comment, recognizing that we are not the body to interpret the County ethics ordinance, that the free admission and tickets offered to the President to attend a professional sporting event that resulted in his request for this opinion, were not extended, in our view, "as a courtesy or ceremony to the office" and were properly declined by him. We have also determined to use this opinion to discuss our responsibilities to review and approve the substantive provisions of county and municipal government ethics ordinances as required by Subtitle 8, Part I of the Maryland Public Ethics Law. We do this in part because of the recent Court of Appeals decision in Seipp v. Baltimore City Board of Elections, 377 Md. 362, 833 A. 2d 551, 2003, and to clarify which post-1979 amendments to the conflict of interest, financial disclosure, and lobbying provisions of the State Law should be imposed on local subdivisions and municipalities pursuant to the requirements of Sections 15-803 and 15-808 of the Law.

I. History and Statutory Requirements

The Maryland Public Ethics Law ("the Law") was enacted in 1979. ¹ The Law combined several existing ethics and disclosure programs of State government and created the State Ethics Commission to administer the programs. ² The Law required each county, incorporated municipality, and the City of Baltimore to enact provisions similar to the requirements for State officials and employees addressing conflicts of interest and financial disclosure. ³ It required that the local government ethics ordinances also address the regulation of lobbyists. ⁴ The Law provided that local laws could "be modified to the extent necessary to make the provisions relevant to the prevention of conflicts of interest in that jurisdiction." ⁵ We were directed to adopt model provisions by regulation for use by local government in complying with the requirements of the law. Specifically the law required the Commission to adopt model provisions ". . . that related to: (i) conflicts of interest; (ii) financial disclosure; and (iii) regulation of lobbying. . . ." ⁶

We adopted our model provisions by regulation, effective September 14, 1981. ⁷ In addition to adopting two model local ethics laws, we addressed the review criteria and guidelines to determine whether the local ethics ordinance was similar or substantially similar to the State's conflict of interest, financial disclosure, and lobbying provisions. The model law set forth in Appendix A to our regulation ("Model Law A") provided a guide for larger counties and municipalities and very closely followed the State provisions. The model included in Appendix B ("Model Law B") was developed to guide smaller counties and municipalities. In promulgating the regulations, we defined the substantive requirements for conflict of interests, financial disclosure, and lobbying regulation and recognized that some of the State law provisions had specific relevance to State government and not local government. In the context of requiring "similar" conflict of interest provisions, our regulations recognized the need for local governments to modify the "degree" of the conflict of interest, financial disclosure, and lobbying "substantive" requirements. For example, our regulations at COMAR 19A.04.02.04D require that local laws have post-employment provisions. The regulation allows the local government to consider time-limited prohibitions in addition to the "specific matter" restriction in the State conflict of interest provisions. The regulation states that "the precise configuration of post-employment limitations will depend in part upon the size and complexity of the local government."

Pursuant to the regulations, since 1981 we have been engaged in a continuing process of reviewing various county and municipal ethics laws and amendments. We have looked to the 1979 Maryland Public Ethics Law's conflict of interest, financial disclosure, and lobbying provisions as the "template" for reviewing the local ethics ordinances. We have also looked to any post-1979 amendments to provisions where the General Assembly has expressed its intent that the substance of the amendments be imposed upon local governments. Unless there was a clear statutory intention to impose the requirements on local government, we have not required change to local government ethics ordinances. ⁸

As noted by the Court of Appeals in Seipp:

. . . The General Assembly clearly desired that local officials and employees be subject to a comparable code, but in lieu of attempting to legislate a single or separate codes of ethics for the wide variety of county and municipal officials, it opted instead to mandate that (1) the local governments enact their own local legislation in those areas, but (2) the local legislation be similar to the State requirements . . . The State law was to be a template for the local legislation . . . . 377 Md., 362, 365, 833 A.2d 551,553. ⁹

II. Requestor's County's Ethics Ordinance

The Requestor's county adopted an ethics ordinance in 1982, which we approved in 1983. In part the county's ethics ordinance used Model Law B, and it also adopted from State law certain gift exceptions.

III. Issue

The present issue before us arises from a 1999 amendment to the conflict of interest gift exceptions in the State provisions. The amendment removed the exception that allowed State officials to receive gifts of "tickets or free admission . . . to attend professional or intercollegiate sporting events." ¹⁰ The Requestor advised us that the local professional baseball team offered him free admission to attend a game located in the county. The invitation was to attend a "fun-filled event" and did not appear to be an event where he would be conducting official business on behalf of the county. He was concerned that the offer came some time after the professional baseball organization had approached and sought funds from the Board of County Commissioners to assist in stadium renovation.

IV. Analysis

The Maryland Public Ethics Law as enacted in 1979 adopted a general rule that employees and officials may not receive gifts from persons "doing or seeking to do business," "regulated or controlled," or "a registrant" (lobbyist) with the employee's or official's agency. The Law also prohibited gifts from persons who have financial interests that could be substantially affected by the official or employee in a manner distinguishable from the public generally. ¹¹ The Ethics Law defined eight exceptions to the general rule against acceptance from the donors described above provided the gifts were not of significant value and not given to impair the impartiality and independence of judgment of the official or employee. ¹² One of the original exceptions read as follows:

. . . Gifts of tickets or free admission extended to an elected constitutional officer to attend professional or intercollegiate sporting events or charitable, cultural, or political events, if the purpose of such or admission is a courtesy or ceremony extended to the office . . . . (emphasis added) ¹³

The County's ethics ordinance adopted in 1983 included a similar exception provision. It reads:

. . . Gifts of tickets or free admission extended to a county official or employee to attend a professional or intercollegiate sporting event or charitable, cultural, or political event, if the purpose of this gift or admission is a courtesy or ceremony extended to the office . . . . ¹⁴

In 1999, the State Ethics Law was amended, and the gift of tickets or free admission to "professional or intercollegiate sporting events" was removed. Additionally, free admission or tickets for charitable, cultural, or political events could come from only the "sponsor of the event." ¹⁵ Section 15-505(c)(2)(viii) now reads as follows:

. . . tickets or free admission extended to an elected constitutional officer from the person sponsoring or conducting the event, as a courtesy or ceremony to the office, to attend a charitable, cultural, or political event . . . .

The 1999 amendments to the State conflict of interest provisions were the result of the Special Study Commission on the Maryland Public Ethics Law ("Special Study Commission") established by joint resolution during the 1998 General Assembly Session. The 15 member Special Study Commission was directed to "examine the Maryland Public Ethics Law as it relates to the General Assembly and its members, including an examination of the laws relating to . . . conflict of interest, including employment with the State . . . ." ¹⁶ The Special Study Commission conducted ten meetings, received testimony between May and December 1998, and issued a Final Report. The Special Study Commission developed a series of recommendations for changes in the Law as it related to legislators. The Final Report included proposed legislation for the 1999 session. ¹⁷

The Special Study Commission expressed concern about legislators receiving gifts of tickets unrelated to "courtesy or ceremony to the office." The Special Study Commission wrote:

. . . Acceptance of tickets should be limited to those offered by the sponsor of the event. Tickets given by a lobbyist for the purpose of "personal interaction" with the legislator should no longer be exempted from the law's restrictions . . . . Final Report, p. xi

The Special Study Commission further elaborated in its report as follows:

. . . Acceptance of tickets or free admission extended to an elected constitutional officer as a courtesy or ceremony to the office to attend sporting, charitable, cultural, or political events is amended to be limited to acceptance from the person who is sponsoring or conducting the event. The Study Commission believes that a "courtesy or ceremony to the office" should be limited to situations in which the legislator's presence helps further the responsibility of the office in recognition of important events such as opening or milestone events. Common or everyday events that do not benefit from or require the presence of a member are not appropriate as a courtesy or ceremony to the office. This change is intended to clarify that ticket acceptance should be limited to events of importance to the sponsor and generally where the sponsor is present or participates as an integral part of the event . . . . Final Report, p.22

Our further review of the legislation proposed by the Special Study Commission in 1999 and actions by the General Assembly during that session suggests that the subsequent Senate amendment to remove "intercollegiate and professional sporting events" from the free admission and ticket gift exception was directed at members of the General Assembly. There is no evidence that the General Assembly intended this change in the law to apply to local government ethics laws. ¹⁸

We therefore conclude that the local government ethics ordinance may allow gifts of tickets to "intercollegiate and professional sporting events," provided they are to elected officials. The gift of tickets or free admission must be "as a courtesy or ceremony to the elected office." ¹⁹ In reviewing our regulations we note that our Model Law A erroneously extends the gift of tickets provision to local government employees as well as elected officials. Clearly this was not intended by the General Assembly when it limited gifts of tickets to "constitutionally elected officials." ²⁰

Accordingly, we advise the Requester that the County provision allowing gifts of free admission or tickets to intercollegiate and professional sporting events is not similar to the requirement of State law in that it allows such gifts to employees as well as elected officials. We have directed our staff to correct Model Law A to remove employees from the exception. We further advise the Requestor that his decision not to accept the gift of free admission to the professional sporting event was appropriate in that the invitation was not part of a courtesy or ceremony to the office. ²¹

Julian L. Lapides, Chair
   Dorothy R. Fait*
   Daryl D. Jones
   Janet E. McHugh
   Robert F. Scholz

* Ms. Fait was a member of the Commission when this opinion was considered but resigned prior to the issuance of the opinion.

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¹ Chapter 513, Acts of 1979. The law was originally in Article 40A, Sections 1-101 through 7-104. Code revision resulted in the law being transferred to Title 15 of the State Government Article in 1995. See Chapter 533, Acts of 1995.

² Prior to 1979 there was a Code of Ethics for Executive Branch Officers and Employees administered by a Board of Ethics created by Executive Order promulgated as COMAR 01.01.1969.07 and amended by COMAR 01.01.1970.14 and 01.01.1978.09. There was also a Financial Disclosure Advisory Board created pursuant to legislation in 1973 (Chapter 3 Acts of 1973 Special Session) ("Financial Disclosure Act" Article 33, Sections 29-1 through 29-11). This Board administered a financial disclosure program requiring annual disclosure of certain assets and sources of income by Legislators and certain elected and employees in the Executive Branch. The 1973 Financial Disclosure Act required each county and Baltimore City to adopt a financial disclosure program. The statute stated "the standards and requirements of which must be substantially those required by this subtitle." (Section 29-10 "Local Authority"). The Secretary of State also administered a "legislative agent" registration and reporting program pursuant to the then Article 40, Sections 5 through 14.

³ See Sections 15-804 and 15-805 (formerly Article 40A, Sections 6-101 and 6-201). The law allowed us to exempt a municipal corporation from these requirements based on the size of the municipal corporation and provided it was not necessary to preserve the purposes of the Ethics Law. See Section 15-209.

⁴ See Section 15-806 (formerly Article 40A, Section 6-301).

⁵ See Sections 15-504, 15-805(b) and 15-806 (formerly Article 40A Sections 6-101(b), 6-201(b) and 6-301).

⁶ See Section 15-205(b) (formerly Article 40A, Section 2-103(i)).

⁷ Code of Maryland Regulations (COMAR) 19A.04.

⁸ For example, in 1991 the General Assembly enacted legislation prohibiting State regulated lobbyists, who lobby the General Assembly, from "soliciting and transmitting" campaign contributions for the benefit of a member or candidate of the General Assembly (Ch. 618, Acts of 1991). The legislation also limited other kinds of campaign finance activities by State regulated lobbyists. The legislation arose out of concerns related to the reported campaign finance activities of certain State lobbyists and we did not impose this requirement on local government. Subsequently in 1994, the General Assembly enacted legislation limiting local lobbyist fundraising in Montgomery and Prince George's Counties (Montgomery and Prince George's Counties Lobbyists Fundraising Restrictions, Ch. 608, Acts of 1994). The General Assembly has also enacted provisions related to local disclosure of campaign contributions in land zoning actions in Prince George's, Montgomery and Howard Counties. See Prince George's County District Council Ethics (Ch. 544, Acts of 1993); Montgomery County Zoning Proceeding (Ch. 645, Acts of 1994); and Howard County Ethics Bill (Chapter 614, Acts of 1995).

⁹ The Court in Seipp also commented on our determinations of similarity. . . . Ultimately . . . similarity is determined by comparing the two laws and making some judgment regarding any variances between them. A departure that is relatively minor or that simply accounts for a local context that is different from the State context does not preclude a finding of similarity. . . . 377Md.362, 374, 833 A.2d 551, 558.

¹⁰ The legislation was entitled "Ethics Law- Reform of Legislative Ethics Process." Ch. 129 and Ch. 130, Acts of 1999.

¹¹ See former Article 40A, Section 3-106(a)(1) through (4). This provision is now §15-505(b) of the State Government Article.

¹² See former Article 40A, Section 3-106(b). This provision is now §15-505(c) of the State Government Article.

¹³ See former Article 40A, Section 3-106(b)(5).

¹⁴ County Ordinance, Chapter 1.7.1-4(f)(5).

¹⁵ Ch. 129 and Ch. 130, Acts of 1999.

¹⁶ See HJR4and SJR4 1998 Session.

¹⁷ Report of the Special Study Commission on the Maryland Public Ethics Laws, Annapolis, Maryland. December 1998.

¹⁸ The Senate amendment specifically addressed gifts of sporting tickets to members of the General Assembly.

¹⁹ This requirement has been in the Ethics Law since 1979. We believe that the definition of "courtesy or ceremony to the office" adopted by the Special Study Commission is a satisfactory and sufficient standard.

²⁰ See §15-505(c)(2)(viii).

²¹ As part of our review, we have noted one other substantive change since 1979 affecting the conflict of interest provisions that was intended to apply to local government ethics laws. In 1994, the General Assembly removed the word "minor" as a modifier to child in §15-501 non-participation requirements. This change was the result of our departmental legislation and intended to clarify that recusal was necessary when any child of an employee had an interest in the matter. There is no basis in ethics logic to distinguish between an "adult" child and a "minor" child of the employee or official. We have directed our staff to review our local government regulations for the purpose of assuring the model laws eliminate any ambiguity in this regard. Chapter 18, Acts of 1994. See §15-102(gg). We have also directed our staff to review our similar regulations and models for the county Boards of Education in adopting ethics regulations to insure that they conform to our discussion in this opinion. Our review of the subsequent amendments to the 1979 Public Ethics Law in the area of financial disclosure and lobbying did not indicate that the General Assembly mandated that the modification be imposed on local government ethics ordinances.