1 Quite appropriately, your request does not call on us to review

Part III of your opinion, concerning county law.

2 We assume that a county ordinance would be carefully drafted

(continued...)

1

Cite as: Opinion No. 98-003 

(January 27, 1998)

(unpublished)

ELECTIONS ) FAIR ELECTION PRACTICES ACT

) COUNTIES ) PUBLIC ETHICS LAW )

PREEMPTION OF COUNTY ORDINANCEBARRING

POLITICAL CONTRIBUTION SOLICITATION BY

QUASI-JUDICIAL OFFICIALS

January 27, 1998

Charles W. Thompson, Jr., Esquire

County Attorney for Montgomery County

You have requested our opinion whether federal or State law would

prevent the Montgomery County Council from enacting legislation

prohibiting the solicitation of political contributions under certain

circumstances. Specifically, the proposed legislation would prohibit

members of county boards and commissions that exercise quasi-judicial

authority from soliciting campaign contributions from persons or entities

that might appear before them in their quasi-judicial capacities. In an

extensive opinion, a copy of which is attached, your office advised the

chair of the Montgomery County Ethics Commission that the council has

the authority to impose this prohibition.

After a careful review of your office’s opinion, we agree in part and

disagree in part.1 Specifically, we agree with your conclusions that the

proposed restriction would not violate the free speech guarantees of the

United States and Maryland Constitutions; that neither the Federal

Election Campaign Act nor the federal Hatch Act preempts 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,” does not apply to the public

officers who would fall within the scope of the prohibition.2

 
2

(...continued)

so as not to exceed the county’s authority with respect to members of

bi-county agencies created by public general law. 

3 The Court thus invalidated ordinances dealing with campaign

contribution limits, contribution disclosures, and campaign spending

limits.

2

Our disagreement is with the portion of your office’s opinion that

resulted in the following conclusion: “The State Election Code does not

preempt the County’s ability to prohibit members of its quasi-judicial

boards and commissions from soliciting funds for partisan political

campaigns and to restrict other political activities that conflict with a

compelling county interest such as the proper performance of 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 therefore beyond the county’s authority.

I

Scope of Preemption

In County Council v. Montgomery Ass’n, 274 Md. 52, 333 A.2d 596

(1975), the Court of Appeals held that “[t]he General Assembly has so

forcibly expressed its intent to occupy the field of regulating election

finances that an intent to preclude local legislation in that field must be

inferred.” 274 Md. at 60. 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 legislation on the subject ....” Id.

3

In describing the General Assembly’s “extensive legislation” concerning

campaign finance and spending, the Court pointed out that the Fair

Election Practices Act, Subtitle 26 of Article 33, “prohibits certain

practices in the solicitation and use of campaign money ....” 274 Md. at

63 (emphasis added). 

Specifically, under the Fair Election Practices Act, lobbyists are

prohibited from establishing political committees “for the purpose of

soliciting or transmitting contributions or transfers from any person to 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 “soliciting an employee for any contribution by means of a

payroll deduction ....” §26-9(c)(4). Finally, “during a regular session of

the General Assembly, the Governor, the Lieutenant Governor, the

Attorney General, the Comptroller, a member of the General Assembly,
4 As this opinion suggests, Montgomery County may well be able

to legislate prophylactic measures that fall outside the zone of State

preemption. In the absence of a specific proposal, however, we cannot

address that possibility in any detail.

5 We must address the Ethics Law issue in order to respond to

your request. An authoritative construction of that law, however, is

only available from the State Ethics Commission.

3

or a person acting on behalf of any of these office holders, may not,”

among other things, “solicit or sell a ticket to any fund-raising event for

any candidate for federal, state, or local office, any authorized candidate

campaign committee, or any political committee ... operated in

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

The 1997 enactment of this last provision reflects a recognition by

the General Assembly that public confidence in government may suffer if

elected officials are allowed to solicit campaign contributions while they

are involved in the legislative process. The same justification could be

advanced in support of legislation to prevent public officials from

soliciting campaign contributions while involved in the quasi-judicial

process. Nevertheless, the General Assembly has not enacted a

prohibition applicable to this latter situation. Moreover, because of “the

exclusion of any local legislation on the subject,” 274 Md. at 60,

Montgomery County may not expand the General Assembly’s category to

another group of officials, members of quasi-judicial boards and

commissions.

A prior Attorney General’s opinion that found a Prince George’s

County lobbying restriction not preempted is distinguishable. In that case,

the local regulation deemed permissible was directed at threats or

blandishments made by lobbyists in discourse with county council

members; the portion of the Prince George’s County law that directly

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 permissible local enactment under

the Maryland Public Ethics Law.5

 To be sure, Montgomery County and

other local jurisdictions are obligated to “enact provisions to govern the

public ethics of local officials relating to,” among other things “conflicts

of interest,” and the county’s conflict of interest provision may be drafted

“to make the provisions relevant to the prevention of conflicts of interest

in that jurisdiction.” §§15-803 and 15-804 of the State Government

(“SG”) Article. It is also true that the Ethics Law prohibits officials and
6 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 “solicit[ing] any gift.” SG §15-505(a)(1). Nevertheless,

through an exclusion in the definition of “gift,” this key element of the

conflict of interest portion of the Ethics Law does 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

In summary, it is our opinion that State legislative authorization is

needed if Montgomery County is to enact an ordinance prohibiting the

solicitation of political contributions under particular circumstances. In

other respects, we agree with the conclusions reached in your office’s

opinion on this matter.

J. Joseph Curran, Jr.

Attorney General

Jack Schwartz

Chief Counsel

 Opinions & Advice