1 Quite appropriately , your reque st does not call on us to review Part II I of y

our opinion, concerning county law.

2 We assume that a county ordina nce would be carefully

drafted (continued...)

1 Cite as: Opinion No. 98-003 (January 27, 1998) (unpublished)

E LECTI ONS

) F AIR E LECTI ON P RACT ICES A CT

) C OUNT IES

) P UBLI C E THICS L AW

) P REE MPTIO N OF C O UNTY O RDINANCE B ARR IN G P OLIT ICA L C ONTRIB UTION S OLICITATION BY Q UASI -J UDICIAL O FFICIALS

January 27, 1998

Charles W

. Thompson

, Jr., Esq uire County Atto rney for M

ontgomer y County

You have requested

our opinion whether federal or State law would prevent the Montgomery

County Council from enacting legislation prohibiti ng th e solicita

tion of pol itical contribution s under c ertain circumst ances. Specifically, the pr oposed leg islat ion would prohibit members of county boar

ds and commissions that exercise quasi-judicial authority fromsoli citi ng camp aign contributions from persons or entities that might appear before them in thei r quas i-judicial capacities. In an extensive opinion, a copy of which is a ttached, your of

fice advi sed t he chair of the Montgomery

County Ethics Commission that the council has the authority to impose this prohibition.

After a careful review

of your off

ice’s opinion, we agree

in part and disagree in part. 1 Specifically, we agree with y

our conclusions that the proposed restriction would not violate the free speech g uar an tees of the United St ates a nd Maryland Constitutions; that neither the Fede ral Election Campaign Act nor the federal Ha tch Act preempt s the county’s authority to impose this prohibition; and that Article 24, Title 13 of the Maryland Code, which bars local government restrictions “on the political activities of an employee

of the local entity,” doe s not apply to the publ ic officers who would fall within the scope of the prohibition. 22 (...continued) so as not to exceed the county’s a uthority with respect to members of bi-county ag encies created by public general law.

3 The Co urt th us in valid ated o rdina nces d ealin g with campai gn contribution limits, contribution disclosures, and campaign spending limits.

2 Our disag reeme nt is with the portion of your office ’s opinion that resulted in the following conclusion: “Th e State Election Code does not preempt the County’s ability

to pro hibit m embers of its quasi-judicial boards and commi ssions fro m so licitin g funds for partisan political campaigns a nd t o restrict other political activities that conflict with a compelling county interest such a s the pr ope r perfo rmanceof quasijudicial duties.” In our opinion, the solicitation of political contributions is a matter within the zone of preemption of the State’s election laws and is th er ef or e b eyo nd th e c ou nt y’s au th or it y.

I Scope of Preemption

In County Coun cil v. Mo ntgomery Ass’n , 274 Md. 52, 333 A.2d 596 (1975), the Court of Appeals he ld that “ [t]he Gene ral Asse mbly has so forcibly expressed its intent to occupy the field of r egulating election financ es that a

n intent to preclude local legislation in that field must be inferred.” 274 Md. at 6 0. In other words, the Court wrote, “the matter of election campaign financing was intended to be completely occupied by state law, to the exclusion of any local leg

islation on the subject ....” Id

. 3 Indescribing the General Assembly ’s “extensive legislation” concerning campa i gn finance

and spending, the

Court point

ed out tha

t the Fai r ElectionPractic es Act, Su btitle 26 of

Article 33, “pro hibits cer

tain practices inthe solicitation and use of campaign money ....” 274 Md. at 63 (emphasis added). Specifi ca ll y, under the Fair Election Practices Act, lobby ists are prohibited

from establishing political committees “for the purpose of sol iciting or transmitting contributions or transfers from any person t o a member or candidate for election to the General Assembly .” Article 33, §26-3(a)(4)(i)2. Employers are subject to certain requirements when they engage in “solici

ting an e mploy ee for a ny c ontrib ution by means of a payroll deduction ....” §26- 9(c)(4). Final ly, “duri ng a regular session of the General Assembly , the Governor, the Lieutena nt Governor, the Attorney General, the Compt

rolle r, a m em be r o f t he Ge ne ra l A ss em bl y,4 As this opin ion sugg ests, Mont

gomery County may well be a ble to legis late pro

phy lactic me asures t

hat fall o utside the zone of Sta

te preemption. In the absence of a specific proposal, however, we c annot address that possib ility

in any detail.

5 We must add

ress the Ethics L aw issue i

n order t o respond to you r reque st. An auth

oritative construction of tha

t law, how ever, is only available fr

om the State Ethics Commission.

3 or a person acting on behalf of a ny o f these office holders, may not,”
amon g other things, “solicit or sell a ticket to any fund-raising event for any ca ndidate for federal, state, or local office, any

authorize d candida

te campai gn committee , or any political committee

... oper ated in coordination with a candidate.” §26-10(a)(3)

. The 1997 ena

ctment of this last pr

ovision re flects a recognition by the Genera

l Assembly

that public confidence in gove rnment ma

y suffer if elected officia ls are allowed to soli cit campa ign con tributions while they
are involved i

n the leg islativ e process. The same justification could be advanced in support of legislation to prevent public officials from soliciting campaig

n contrib

utions w hile involved in the quasi-judicial process

. Nevertheless, the General Ass embly has not enacted a prohibition applica

ble to this latter situation. Moreover, because of “the exclusion of any loca

l legislation on the subj ect,” 274 Md. at 60, Montgomery

County may

notexpand

the Gene ral Asse mbly ’s cate gory

to another group of officials, members of qua si-judicial boards and commission s.
A prior Att

orney Genera l’s opin ion that found a Prince George’s County lobbying re striction not preempt ed is distinguishable. In that case, the local re gulatio n deemed permissib le was dir

ected a t t hreats or blandishm ents made by

lobby ists i n discour se with co unty council members; the portion of

the Princ e Georg e’s County law that d

irectly restricted the act of soliciting was considered preempted. 75 Opinions of the Attorney General

343 (1990). 4
Nor, in our view, can the proposed prohibition on the solicitation of political contributions be viewed as a permiss ible local enactment under the Maryland Public Ethics L aw. 5 To be sure, Montgomery County and other l ocal jurisdictions are obligated to “enact provisions to gove rn th e public ethics of local officials relating to,” a mong o ther t hings “confli cts of interest,” and

the county’s conf

lict of interest provision may be dr afted “to make the

provision s releva

nt to the pr

evention of confl icts of intere st inthat jurisdiction.” §§15-803 and 15-804 of the State Government (“SG”) Article . It is

also true that the Ethics Law prohibits officials and6 That the Ethics Law does not apply to the solicitation of political contributions is further evidenced by the fact that the General Assembly’s prohibition of solicitation by statewide elected officials and members of the General Assembly during a legislative session was codified in the Election Code, not the Ethics Law.

4 employees

from “so licit[ing ] any

gift.” SG §15-505(a)(1). Nevertheless, throu gh an exclusion in the definition of “gift,” this key e lement of the conflict of interest portion of the Ethics Law doe s not apply to “ the solicitation , acceptance, receipt, or regulation of a political contribution” that is regulated under the Election Code. SG §15-102(p)(2)

. 6

II

Conclusion

Insu mm ar y, it is our opinion that State legislative authorization is needed i f Montgo mery

County is to enact an ordinance pr ohibiting th e solicitation of p ol it ica l co nt rib ut io ns u nde r pa rti cul ar c irc um st anc es. In other respec ts, we ag ree with the conc lusions r

eached in your office ’s opinion on this matter. J. Joseph Curran, Jr. Attorney General

Jack Schwa

rtz Chief Counsel Opinions & Advic e