SPECIAL ETHICS LAW MEMO
TO: Individual
Regulated Lobbyists, Prospective Regulated Lobbyists and Appointing Authorities
SUBJECT: Restrictions on
Individual Regulated Lobbyists Serving on State Boards and Commissions
Subtitles 5 and 7 of the
State Ethics Law (Md. Code Ann., State Gov’t, Title 15 (Supp. 2002)) address
the ability of individual regulated lobbyists to serve on State boards and
commissions. Subtitle 5 looks at the
conflict of interest issues, and subtitle 7 focuses on the lobbying law. HB 1076, enacted on May 6, 2002, directed
the Commission to promulgate regulations applicable to regulated lobbyists
serving on boards and commissions. The
promulgated regulations are contained in COMAR 19A.07.01.05 and .06.
Title
7 (Lobbying)
Generally, boards and
commission are subject to the Ethics Law if they are created by statutory
authority or pursuant to an Executive Order having the force of Law or by
regulation. The State Ethics Commission
maintains a comprehensive list of boards and commissions governed by the Ethics
Law. The Ethics Law does not govern
boards or commissions created by Executive Orders not having the force of law,
by legislative resolution, or by executive letter. Questions regarding whether
a specific board subject to the jurisdiction of the Ethics Commission should be
referred to the Commission
Subtitle
5 (Conflict of Interest)
Subtitle 5 applies to
all members of boards and commissions subject to State Ethics Commission
authority and governs all conflict issues whether or not the board or
commission member is a regulated lobbyist.
If the Ethics
Commissions concludes that a board or commission within its jurisdiction, the
conflict of interest provisions in Subtitle 5 will determine to what extent a
lobbyist may serve on the board or commission.
All members of State boards, commissions and similar
entities that are created by statute, executive order, or regulation having the
force of law are “public officials” of the State and are subject to the State
Ethics Law. As public officials, these
individuals in their board capacities, are subject to ethical standards of
conduct covering recusal, prohibited employment, prohibited interests, gift
restrictions, abuse of position, misuse of confidential information, post
service limits, procurement specifications, assistance limitation and other
requirements. Members of boards are
also required to file limited public financial disclosure statements unless the
Commission determines that the board member is exempt from this requirement.
Private citizens appointed to part-time boards, including
lobbyists, must be aware of the conflict of interest issues. However, a lobbyist faces special issues if
the lobbyist’s private affiliation or work relates to the subject matter or
specific activities of the board or commission, particularly if compensated by
an employer (or client) to influence the board.
If a regulated lobbyist
is appointed to a board or commission under the jurisdiction of the Commission,
or if a board or commission member becomes a regulated lobbyist, he or she must
file a disclosure report with the Commission within 5 days of the dual status. Lobbyists may serve on boards and
commissions provided that, within 5 days of the dual status, the
member/lobbyist discloses to the Commission any current representation of a
person for compensation before a State governmental unit, except in a judicial
or quasi-judicial proceeding; any current representation of a State agency for
compensation, an contractual relationship with State government, or any
transaction with State government for monetary consideration; and any current
interest held by the regulated lobbyist, the regulated lobbyist’s spouse or
dependent children, together or separately, having either 10 percent or more of
the capital stock, or stock worth $25,000 or more, in a corporation subject to
regulation by or doing business with the board or commission, or any interest
in a partnership, limited liability partnership, or limited liability company
subject to regulation by or doing business with the board or commission. Additionally, the regulated lobbyist/member
shall update the information required to reflect the lobbyist’s current
registrations throughout each reporting period, and, whenever an issue arises
within the board or commission related to the disclosed information, the
regulated lobbyist member shall submit a statement, on the record of the board
or commission, of recusal from discussion of, voting on, or any other action
required by the circumstances concerning the issue.
In some instances, a lobbyists may serve on a State board
unrelated to his or her lobbying activity, but after the board has completed
its work or after the lobbyist leaves the board, the lobbyist may wish to lobby
the board, or perhaps lobby on the legislative recommendations the board or
commission developed while the lobbyist was a member. This activity is impacted by §15-504(d), a provision that former
officials, including members of State boards and commissions, may not assist or
represent anyone for compensation in any specific matter where they
significantly participated in the matter as an officials or employees. Therefore, in some instances, subsequent
activity by a lobbyist related to the work of the former member’s board is
barred by the Public Ethics Law.