SPECIAL ETHICS LAW MEMO
TO: Officials,
Agents and Applicants
SUBJECT: Prince George's County Zoning Ethics,
Disclosure Participation and Contributions Provisions – Md. Code Ann., State
Gov’t §§15-829 - 15-835 (Supp. 2001)
The Prince George’s County zoning
ethics provisions were enacted in 1993 and are found in the State Government
Article, §§15-829 - 15-835 and Article 33 of the Annotated Code of
Maryland. The required forms for this
program are distributed by and filed with the Clerk of the Prince George's
County Council. The Law requires the
State Ethics Commission to provide guidance and advice to people who are
governed by those sections of the Law.
The Law establishes a four-part
program, the general outlines of which are as follows: (This is only a brief general summary. Persons impacted by the Law should review it
in detail.)
§
The filing of affidavits by applicants and
agents relating to payment/contribution activity;
§
A prohibition of payments/contributions by
applicants and agents to members of the County Council and County Executive
during the pendency of an application;
§
A requirement that ex-parte disclosure forms
regarding communications about a pending application be filed by applicants,
agents, members of the Council, and the County Executive; and
§
A requirement that a member of the Council not
vote on a pending application if, within 36 months of the filing of the
application, the member has received a payment/contribution from an applicant
or agent involved in that application.
The State Ethics Commission has
developed forms for implementing §§15-829 - 15-835, which are available from
the Clerk of the Prince George’s County Council. The Ethics Commission continues to respond to inquiries and
provide advice as to application of the law.
Outlined in this memo are questions and answers which are provided to
respond to inquiries and to serve as a reference for those interested in the
application of the Law. The memo is
based on staff discussions or consultations with the State Ethics Commission
and in part reflects one formal opinion of the Commission but does not
constitute an advisory opinion of the Commission. Some of the answers involve interpretation of the State Election
Law and the Commission does significantly rely on that agency and its counsel
on these issues.
If you plan to take any actions that
appear to be inconsistent with the information provided in this memorandum,
prior to taking any action you should ask for specific review by the Commission
staff or the Commission.
§§15-829
- 15-835 Questions and Answers
1. Is the parent
corporation of an applicant required to file an affidavit if it is involved in
the land development business in Prince George's County?
Answer: The parent corporation is required to file
an affidavit if it has substantive involvement in directing the affairs of the
subsidiary with regard to the specific disposition of the land that is the
subject of the application or the parent corporation, as an ongoing business
activity, is engaged in substantive activities pertaining to land development
in Prince George's County.
2. What if the person or
entity that could be considered an applicant is neither an owner or contractor
of the land which is the subject of the application but has mineral rights
which may be involved in rubble fill or sand and gravel operations?
Answer: The entity may be considered an applicant if
it holds the mineral rights and the other requirements of the Law are met.
3. Does the language
“anyone with authority to bind a business” may sign for it, abrogate the
requirements that all of those with a 5% or greater interest in the subject
land file an affidavit? Also, can an
agent lawyer sign a corporate affidavit?
Answer: If an entity must file an affidavit, only a
person who is empowered by the entity’s bylaws or equivalent rules or
procedures, may sign the affidavit.
Often a lawyer agent will not have the power or authority to make bind
the entity.
4. In a SMA or Master Plan
hearing, if the proposal is to down zone the property and the owner requests
the status quo, is the application deemed to be one for intensification and
thus require an applicant's affidavit?
Answer: The intent of the landowner to retain the
status quo would not result in a determination that the application is one for
intensification, and, therefore, the applicant’s affidavit would not be
required.
5. If neighbors or other
interested parties appear before the Council to express approval of
"upzoning" (intensification) of property held by another, in the
context of sectional map amendments or master plan review, would they be
required to file affidavits?
Answer: If they do not otherwise have a qualifying
interest or involvement in the property, their appearance before the Council to
express their approval would not make them agents or applicants. Therefore, supporters who are merely
neighbors or who hold similar status would not be required to file affidavits.
6. Is it true that an
agent is required to file an affidavit only if he has made or solicited a
payment after July 1, 1993?
Answer: Yes.
7. If, while an
application is pending, an agent solicits a payment/contribution for an
incumbent County Executive from a non-agent entity, does the act of soliciting
the contribution violate the prohibition against an agent making a
payment/contributions to the County Executive during the pendency of an
application?
Answer: The Law provides that the agents comply with
disclosure requirements and, under some circumstances, prohibits agent
contributions, including those to the incumbent County Executive. The Law does not, however, prohibit an agent
from soliciting contributions even if the contributions are made by others at a
time when they could not be made by the agent.
8. How should situations
be handled if an applicant who wants to have a matter considered in SMA and
Master Plan hearings and has not filed an affidavit in the required 30 days
prior to Council consideration?
Answer: It is the legal responsibility of the
applicant to file on a timely basis.
The applicant should be advised that proceeding without filing or filing
untimely could subject him or her to enforcement under the Law. The Council should be aware that, where
there is non-compliance by an applicant, the action by the Council could be
challenged. Serious questions would
certainly arise if the affidavit was not filed until after action by the
Council. Because of this problem, every
attempt should be made to comply with filing requirements in a timely
manner.
9. If the Council elects
to review a case on its motion or elects to waive its right to review a case,
are the motions considered a vote or participation?
Answer: It would be considered as participation by
the Council.
10. In a situation in which
an applicant or agent, without an intent to subvert the Law, makes a
contribution to a PAC, how much, if any, of the contribution must be returned
to the contributor to enable a member receiving a contribution from the PAC to
participate in an application? Can a member
participate in matters in which there has been a direct contribution from an
applicant or agent, not through a Political Action Committee, if the
contribution is returned to the applicant or agent?
Answer: The Law provides two options in these situations
where a contribution is received from a PAC that has received funds from an
applicant or agent. The member can
return to the PAC the full amount received from the PAC, or in the alternative,
the PAC can return the amount contributed by the applicant or agent involved in
the application to the applicant or agent.
The member cannot return the PAC's contribution directly to the
applicant or agent. The law does
not permit a member to vote by returning a direct contribution from an agent or
applicant. In these situations,
contributions made within the statutory time period result in
non-participation.
11. Do the provisions of
§§15-829 - 15-835 have an impact on non-incumbent candidates or candidates who
are members of the Council running for County Executive?
Answer:
The provisions do not impact on these non-incumbent County Executive
candidates.
12. If an agent signs a
letter inviting an individual to attend a meeting to plan a campaign fund
raising event to finance the Executive's or member's campaign for public office
on behalf of a campaign committee supporting an incumbent County Executive or
Council member, is the “signing of the letter” soliciting campaign
contributions considered a contribution/payment?
Answer: The law does not prohibit an agent or
applicant from soliciting campaign contributions. The mere signing a letter in these circumstances would not be
considered to be a contribution/payment.
13. If an agent or
applicant chairs a meeting to plan a fundraising event, would it be considered
as a contribution/payment?
Answer: The agent’s chairing meeting to plan a
fundraising event would not be considered a contribution/payment unless
“volunteering this service” were to be considered an “in kind” campaign
contribution. Campaign law generally
does not consider this limited type of activity a contribution unless the agent
is in the business of planning fundraising events.
14. If an agent or
applicant sends tickets to a fund raising event for a member or the incumbent
County Executive to potential contributors on the stationery of the agent,
typed by an employee of the agent and mailed at the expense of the agent, would
it be considered a payment/contribution?
Answer: Yes.
An agent or applicant may not engage in this activity while an application
is pending. Even if this was done while
an application was not pending, the contribution/payment activity would be
impacted by the 36 month disqualification period as to members.
15. If an agent or
applicant helps with the logistics, or otherwise gives personal time, to help
conduct a fundraising event for a member or the incumbent County Executive,
would it be considered a payment/contribution?
Answer: Volunteer work for a campaign at a time when
an application is pending is permissible only to the extent that the activity
does not constitute a contribution/payment.
Generally this type of activity will not be a contribution/payment if
the nature of the activity or service was something that the agent or applicant
normally would not provide for a fee.
16. If an agent attends
fund raising events as a guest of the campaign committee or as a guest of a
purchaser of a ticket, and the purchaser is not an applicant or agent, would
use of this ticket constitute a contribution/payment to the candidate?
Answer: There is no language in §§15-829 - 15-835
that would make attending a fund raising event using a ticket purchased by
another person in conformity with the law or provided free by the candidates
committee a payment/contribution.
17. Is an agent or
applicant using his own funds to purchase a newspaper ad or otherwise expresses
his personal support for the election of an incumbent County Executive or the
member, absent any cooperation or interaction with the incumbent candidate or
his or her respective campaign committee, states that this is the view of the
persons purchasing the ad, deemed to be making a payment/contribution?
Answer: The law expressly provides that it does not
cover any independent expenditure by any person including any applicant, agent
or political action committee.
Therefore, independent expenditures as described in §§15-829 - 15-835
and in Article 33 are not prohibited as long as they are clearly independent
expenditures and are not undertaken to subvert the intent of the Law.
18. Is an agent or
applicant using volunteer time to write campaign material, do research, work
polls or otherwise assist the campaign of the incumbent County Executive or a
member considered to be making a contribution/payment?
Answer: The answer depends on whether this is the
type of activity the agent generally provides for compensation. If the agent does this type of activity in
other situations for compensation, it would be a contribution/payment.
19. If an agent or
applicant who is a lawyer gives free legal advice to the campaign of the
incumbent County Executive or member without charging a fee, is the service
considered a contribution/payment?
Answer: Generally this would be considered a
payment/contribution and would be impacted by the laws addressing
contribution/payments.
20. Does the law apply to
applicant or agent contributions to a PAC if the PAC later makes a contribution
to a member or incumbent County Executive?
Answer: If an applicant or agent has made a
contribution to the PAC within the 36-month period and the PAC makes a
contribution to the member during the 36-month period, the member may not vote
unless the money is returned to the PAC or the PAC returns the money to the
applicant or agent. There would be a
violation of the prohibited contribution provision of the law if, during the
pendency of an application, an applicant or agent contributes to a PAC with the
knowledge or understanding that the PAC intends to make a contribution to a
member or the Executive during the pendency period and the PAC
contribution is made.
21. Does the phrase
"thing of value" apply to endorsement of a member of the Council or
an incumbent County Executive that is given by a Political Action Committee?
Answer: Generally, endorsements are not considered
to be a “thing of value” within the context of the Law.
23. Is an endorsement that
is subsequently published by the Political Action Committee a
contribution/payment?
Answer: Generally, the mere publication of an
endorsement is not a contribution/payment.
24. If a member of the
Council or the County Executive is part of a slate, are contributions to the
slate subject to the various requirements of §§15-829 - 15-835?
Answer: Generally, slates are not subject to the
various requirements or limitations of §§15-829 - 15-835 if the following
standards are met: