Gen. 55] 55

PUBLIC ETHICS LAW

Z ONING AND P LANNING

– R EGIONAL D ISTRICTS

– S PECIAL
D ISCLOSURE P ROVISIONS R ELATING TO P RINCE G EORGE ’ S C OUNTY

May 26, 2015

Michael W. Lord, Esq.

Executive Director Maryland State Ethics Commission

You have asked for our opinion on how to interpret certain campaign finance disclosure requirements set forth in “special provisions” of the Maryland Public Ethics Law that pertain to land use matters for the portion of Prince George’s Coun ty that is located within the Maryland-Washington Regional Dis trict.
Within the District, the members of the Prince Geor ge’s County
Council sit as the “District Council” and, in that capacity, render decisions on various types of land use applications . As we will explain below, the ethics provisions in question—Pa rt V of the
Public Ethics Law, Md. Code Ann., Gen. Prov. (“GP”) §§ 5-833 through 5-841 1 —were enacted over twenty years ago in response to published reports that members of the District C ouncil had received significant campaign contributions from th e developers and other applicants who appeared before them.

Under the Part V ethics provisions, District Counci l members

must recuse themselves from a land use matter if th ey have received a contribution from the applicant within a 36-month period before the filing of the application. See GP § 5-835(b)(1). To facilitate the recusal provision, the law also r equires applicants to submit an affidavit disclosing any payments that they have made

to a member of the District Council within the same 36-month period. GP § 5-835(c)(1)(i). The applicant must s ubmit the affidavit “[a]fter an application is filed” but “at least 30 calendar days before” the District Council’s “consideration of the application.” GP § 5-835(c)(1), (2). Your questio ns relate to the timing of the affidavit requirement and the meaning of the term “consideration” for purposes of determining when an applicant

must submit the affidavit.

1 Unless otherwise specified, all statutory referenc es in this opinion

are to the 2014 volume of the General Provisions Ar ticle.56 [100 Op. Att’y

The timing requirements are fairly easy to administ er with respect to special exceptions, zoning map amendment s, variances, and other quasi-judicial land use matters, where th e proceeding before the District Council is initiated by an appl icant’s submission of a written application that seeks an action speci fic to the applicant’s land. In those situations, the applica nt can submit the affidavit with the application, and the District Co uncil can ensure compliance with the statute by waiting 30 days befo re taking up the matter. The timing requirements are more difficult to apply, however, when it comes to area master plans and sec tional map amendments—quasi-legislative actions that are forma lly initiated by the District Council, not an applicant. In thes e proceedings, there is no formal “application”; instead, a person who supports a master plan or sectional map amendment with “the in tent to intensify the zoning category applicable to” the pe rson’s land 2
becomes an “applicant” merely by “appearance at a p ublic hearing, filing a statement in the official record, or [maki ng an] other similar communication to a member of the County Council or the Planning Board.” GP § 5-833(d)(3) (defining “application”).

For these applicants—people who advocate for the “u pzoning” of their property by testifying during coun cil or board proceedings—the due date for the affidavit depends on how broadly one interprets the term “consideration.” I f the Council “considers” a matter whenever it convenes publicly to hear testimony about it, the landowner’s appearance at t hat hearing would simultaneously qualify his remarks as the “ap plication” and the hearing as “consideration” of his application. If so, how can an applicant file the affidavit “after” submitting the application but 30 days “before” the council considers it? Seemingly, the only way to avoid this conundrum is to interpret “consideration ” to mean a later step in the council’s proceedings. That approach, however, would potentially allow a campaign donor to appear and ad vocate before the very council members whom he has supported fina ncially—a result that would seem to undercut the broader purp ose of the ethics provisions. 3

2 A re-zoning that results in “the potential for a m ore intensive use” of a parcel is generally assumed to increase the va lue of the property. See Rouse-Fairwood Ltd. P’shp. v. Supervisor of Ass essments , 120 Md. App. 667, 694 (1998). Prince George’s County Zonin g Ordinance lists the zoning classes in order of intensity. See Prince George’s County Code, § 27-109(b).

3 At the time you submitted your request for an opin ion, the District Council appears to have interpreted Part V as requi ring prospectiveGen. 55] 57

In light of this apparent statutory ambiguity, you ask us two questions:

1. What actions by the Council constitute “consider ation” such that an applicant must file an affidavit 30 da ys prior to that consideration? Specifically, does consideration oc cur when the Council holds a hearing on a matter that the Counci l will not decide

until later?

2. If an affidavit is filed inside of the 30 days o f scheduled “consideration,” can the application move forward e ven though the affidavit was not filed 30 days prior to considerat ion?

As to your first question, we conclude that the Cou ncil “considers” a matter when, as a body, it convenes t o hear testimony or deliberate on a matter, not merely when it conve nes to render a decision. We base that conclusion on (a) the legis lative history of the provision, which makes clear that the General A ssembly enacted the provision to guard against corruption o f the Prince George’s County land use process, (b) the statutory requirement that we interpret the Ethics Law “liberally” to eff ectuate its intent, (c) the meaning that the Court of Appeals has given the word “consideration” in the similarly remedial Open Meet ings Act, and (d) the fact that the General Assembly expressly pr ohibited the taking of “any action, directly or indirectly, with the intent to circumvent the intent of [Part V],” GP § 5-835(f).

With respect to your second question, we conclude t hat Part V does not permit the Council to move forward with an application when the applicant has failed to provide the disclo sures that might disqualify a member. Part V does not authorize the Council to grant exemptions from the filing deadline, and the land use powers granted to the County by the Maryland-Washington Re gional District Act are expressly subject to Part V. GP § 5-834. The

remedial discretion of the circuit court is also li mited. Upon a petition timely filed under § 5-839(a)(1) or on app eal of a zoning
amendment under § 22-407 of the Land Use Article, t he circuit court “shall issue an order voiding” a Council acti on taken in

applicants to submit their affidavits at least 30 d ays before the date the District Council is scheduled to hear testimony on a proposed master plan and sectional map amendment. See Letter from Wendy Irminger, Project Leader, Prince George’s County Planning Dep artment, to Property Owner (Feb. 7, 2013).58 [100 Op. Att’y

violation of Part V. GP § 5-839(a)(2). The specia l provisions in

Part V thus do not authorize the Council to move fo rward with an application when an applicant has not complied with the 30-day deadline for filing the affidavit. 4

I

Background

A. Land Use Planning Within the Maryland-Washington Regional District

The Regional District Act created the Maryland-Wash ington Regional District, which is made up of Montgomery C ounty and most of Prince George’s County. Md. Code Ann., Lan d Use (“LU”) § 20-101 (2013). The Act delegates land use planning
within the District to two “district councils,” whi ch are composed entirely of the elected officials who serve on the County Councils
of the two counties. LU § 22-101; see Kirsch v. Prince George’s County , 331 Md. 89, 91 (1993); Pan Am. Health Org. v. Montgomery County , 338 Md. 214, 217 (1995); see also 84 Opinions of the Attorney General 65, 66 (1999). Relevant to our purposes, the Prince George’s County District Counc il is authorized to adopt and amend the text of the zonin g law for Prince George’s County, LU § 22-104(a), and to decide matt ers ranging from the approval of general and area master plans, see MarylandNat. Capital Park & Planning Comm’n v. Greater Bade n-Aquasco

Citizens Ass’n , 412 Md. 73, 88-89 (2009), to special exceptions a nd departures from design standards. See County Council of Prince George’s County v. Billings , 420 Md. 84 (2011).

The District Council does not, however, make these decisions on its own. The Prince George’s County Planning Bo ard—an unelected body—adopts certain types of plans and ma kes certain

4 In accordance with established policy, this Office defers to the State Ethics Commission on the interpretation of th e Public Ethics Law and for that reason typically does not entertain op inion requests concerning the meaning of that law. That policy is not implicated,
however, when the Commission itself seeks our aid i n interpreting the Ethics Law. We have reviewed the many advisory opi nions and other
Commission materials that relate to Part V, but non e resolves the interpretive questions that we address here. See, e.g., State Ethics Opinions Nos. 93-16 (Dec. 15, 1993); 94-3 (July 6, 1994); and 96-2 (Jan. 31, 1996). To the extent questions arise about how to apply the statute in specific circumstances, however, those questions should be directed

to the Commission.Gen. 55] 59

types of zoning decisions, which then may come befo re the County Council sitting as the District Council. 5 For some of these land use matters, the District Council also participates in the process before the Planning Board renders its decision. For examp le, the District Council initiates the process of preparing a sectio nal map
amendment. Also, the District Council and the Plan ning Board hear some planning matters jointly. 6

B. Part V: The “Special Provisions” Applicable to the Prince George’s County Portion of the Maryland-Washington Regional District

Part V of the Ethics Law contains several interrela ted mechanisms for limiting the influence of campaign c ontributors on

the District Council’s land use decisions. For exa mple, applicants and their agents are prohibited from making contrib utions to a member or a member’s campaign while the application is pending, GP § 5-835(a), and must disclose their ex parte communications to a member about an application. GP § 5-836. The tw o provisions most relevant to your inquiry are the member disqua lification requirement and the applicant affidavit requirement

. See GP § 5- 835(b), (c).

1. The Disqualification Requirement

A member 7 of the District Council whose campaign treasurer, continuing political committee, or slate receives a payment from an

5 Prince George’s County v. Zimmer Dev. Co ., a case now pending before the Court of Appeals, involves the standard of review to be used by the District Council in reviewing a decision of the Planning Board.

See 440 Md. 114 (2014) (granting certiorari). While th e reported decision of the Court of Special Appeals is informa tive on that review process, the case does not bear on your specific qu estions. See County Council of Prince George’s County v. Zimmer Dev. Co ., 217 Md. App. 310 (2014).

6 For the County Council’s explanation of the County ’s planning

process, see http://www.princegeorgescountymd.gov/sites/CountyC ouncil/ Resources/Planning-DevelopmentProcess/Pages/default .aspx (last visited Feb. 27, 2015).

7 The term “member” is defined to “include[] any can didate or person duly elected or appointed who takes the oath of office as a member of the County Council for Prince George’s Co unty and who thereby serves on the District Council.” GP § 5-83 3( l ); see also § 5-60 [100 Op. Att’y

applicant during the 36-month period before the app licant submits its application must refrain from participating in proceedings that involve that application:

After an application has been filed, a member may not vote or participate in any way in the proceeding on the application if the member’s treasurer or continuing political committee, or a slate to which the member belongs or belonged during the 36-month period before the filing of the application, received a payment during the 36-month period before the filing of the application or during the pendency of the application from any of the applicants or the agents of the applicants.

GP § 5-835(b)(1). The member need not recuse himse lf if the contribution came from a political action committee to which the applicant has made a payment, so long as the applic ant made the payment “without any intent to subvert the purposes of this subtitle” and the member returns the payment to the committee. 8

GP § 5-835(b)(2).

2. The Affidavit Requirement

To facilitate the member disqualification provision , the statute requires that an applicant for a land use a pproval file an affidavit stating whether he has made a contributio n to the campaign of a Council member and, if so, to which c ampaign finance entity he made it:

After an application is filed, the applicant

shall file an affidavit under oath:

(i) 1. stating to the best of the applicant’s information, knowledge, and belief that during the 36-month period before the filing of the application and during the pendency of

833(f) (defining “candidate” as a “candidate for el ection to the County Council who becomes a member”).

8 Part V does not affect the disclosures that campai gn finance entities

must make to the State Board of Elections under the Election Law

Article. See Md. Code Ann., Elec. § 13-501 (“As to contributions to the Prince George’s County Executive, a member of the P rince George’s County Council, or a candidate for either of those offices, Title 5,
Subtitle 8, Part V of the General Provisions Articl e may apply.”).Gen. 55] 61

the application, the applicant has not made any payment to a member’s treasurer, a member’s continuing political committee, or a slate to which the member belongs or belonged during the 36-month period before the filing of the application; or

2. if any such payment was made, disclosing the name of the member to whose treasurer or continuing political committee, or slate to which the member belongs or belonged during the 36-month period before the filing of the application, the payment was
made[.]

GP § 5-835(c)(1). Applicants must make the same di sclosure for contributions made by “a member of the applicant’s household,” GP § 5-835(c)(1)(iii), and must also disclose any s olicitations that the applicant has made on a member’s behalf and ide ntify the

member if a solicitation resulted in a contribution . GP § 5- 835(c)(1)(ii). In some circumstances, the applican t’s “agents” with respect to an application must also file an affidav it. 9 GP § 5-835(d). Finally, “[a] supplemental affidavit shall be filed whenever a payment is made after the original affidavit was fi led.” GP § 5-
835(c)(3).

The affidavit requirement applies only to “individu als or business entities that would be subject to this sub title.” GP § 5- 835(c)(5). Whether a person is “subject to the sub title” is addressed in § 5-833, mostly through the definitions of “appl icant” and “application.”

9 The affidavit requirement applies to an applicant’ s agent only if the agent “has acted on behalf of the applicant with re gard to the specific application.” GP § 5-835(d)(1)(i). If so, the age nt must file an affidavit if the agent made or solicited a contribution for a member’s campaign within the 36-month period before the applicant fil es its application. GP § 5-835(d)(1)(ii). The term “agent” includes a bro ad array of individuals or business entities, such as architects, attorneys , engineers, and real estate agents, “hired or retained by the applicant for any purpose relating to the land that is the subject of an application.” GP § 5-833(b). An applicant “is not required” to make any representat ion in the affidavit about the actions “of anyone other than that applic ant.” GP § 5- 835(c)(4).62 [100 Op. Att’y

Under § 5-833(c), a person’s status as an “applican t” depends on the type of interest the person has in the “land that is the subject of the application.” For example, title owners, co ntract purchasers, certain trustees, certain corporate directors and o fficers, and certain

holders of “at least a 5% interest in a business en tity that has an interest” in the land are “applicants”; certain len ding institutions, public entities, and public utilities are not. GP § 5-833(c)(3).

An “application” is defined both by the type of lan d use action sought and the method by which the applicant seeks it. As to the type of action sought, an “application” includes tw o categories of requests for land use actions. The first category includes quasijudicial zoning and subdivision proceedings that a person initiates by submitting a form or other materials, in the usu al sense of the word “application,” and that involve the person’s u se of a particular property. That category of applications consists o f:

(1) an application for a zoning map amendment; a special exception; a departure from design standards; a revision to a special exception site plan; an expansion of a legal nonconforming use; a revision to a legal nonconforming use site plan; or a request for a variance from the zoning ordinance;

(2) an application to approve a comprehensive design plan; a conceptual site plan; or a specific design plan . . . .

GP § 5-833(d)(1), (2) (internal paragraph enumerati on omitted). The second category of application, addressed in § 5-833(d)(3), gives rise to your question. It comprises two type s of quasilegislative planning proceedings that are initiated by the District Council: area master plans and sectional map amend ments. 10 The General Assembly specified how a person is deemed t o be an applicant in those proceedings by broadening “appli cation” to

include:

10 For an explanation of the sectional map amendment process in the County, see Part 3, Division 4 of the Prince George’s County Z oning Ordinance, §§ 27-220 through 27-228 of the Prince G eorge’s County Code. For an explanation of the area master plan process, see §§ 27-

640 et seq . of the County Zoning Ordinance and Greater Baden-Aquasco

Citizens Ass’n , 412 Md. at 88-90. For a discussion of the quasilegislative and quasi-judicial functions of the Cou nty Council, see Prince George’s County v. Silverman , 58 Md. App. 41, 50-51 (1984).Gen. 55] 63

(3) participation in adopting and approving an area master plan or sectional map amendment by appearance at a public hearing, filing a statement in the official record, or

other similar communication to a member of the County Council or the Planning Board, where the intent is to intensify the zoning category applicable to the land of the applicant.

GP § 5-833(d)(3). However one qualifies as an appl icant, the

affidavit must be filed with the clerk of the Count y Council “[a]fter an application is filed,” GP § 5-835(c)(1), and “at least 30 calendar days before consideration of the application by the District Council.” GP § 5-835(c)(2); see also GP § 5-838(c) (generally pertaining to the clerk’s duties). 11

As to all of the statute’s provisions, it is a viol ation for an applicant to “take any action, directly or indirect ly, with the intent to circumvent the intent of this part.” GP § 5-835 (f). Other provisions in Part V provide for enforcement throug h civil remedies and criminal penalties, GP § 5-839, and sp ecify that the special provisions take precedence over any conflic ting County
laws. GP § 5-834.

11 The Ethics Law also contains sets of “Special Prov isions” for Montgomery, Howard, and Frederick counties. Those provisions are somewhat analogous to Part V in that all require th e disclosure of certain campaign contributions to the elected officials who decide particular land use matters in those jurisdictions. For the M ontgomery County provisions, first enacted in 1994, see Part VI (GP §§ 5-842 through 5- 847; 1994 Md. Laws, ch. 645); for the Howard County provisions, first
enacted in 1995, see Part VIII (GP §§ 5-852 through 5-856; 1995 Md. Laws, ch. 614); and for the Frederick County provis ions, first enacted in
2007, see Part IX (GP §§ 5-857 through 5-862; 2007 Md. Laws, ch. 474). Only the Howard County provisions define “applicati on” in such a way as to create a question about the disclosure deadli ne for persons who participate in proceedings that they did not initia te through the submission of a formal written application. As to that county, where the County Executive has veto power over legislation ad opted by the County Council, the Ethics Law requires that the affidavit be filed “[w]hen an application is filed,” GP § 5-853(a)(1), and “at le ast 30 calendar days before any consideration of the application by an e lected official.” GP § 5-853(b).64 [100 Op. Att’y

II

The Legislative History of Part V

The provisions we construe here are the result of a n arduous legislative and judicial process. The first versio n was enacted in 1989 but was promptly declared void under the “sing le subject rule” of Article III, § 29 of the Maryland Constitu tion. See Porten Sullivan Corp. v. State , 318 Md. 387 (1990). A second, more stringent, version was introduced in the General As sembly’s 1990
session but failed. A third version, similar to th e current law in many respects, was enacted in 1992, but it, too, su ccumbed to a challenge under the single-subject rule. See State v. Prince Georgians for Glendening , 329 Md. 68 (1993). Finally, much of
the current version of Part V was enacted in 1993, with further

modifications made in 2011. As we will describe in some detail, each step along the way informs our understanding o f the statute’s

purpose.

A. The 1989 Enactment

The story of how the General Assembly came to adopt “special” ethics provisions for Prince George’s Cou nty land use matters begins during the 1989 Session. 12 Early in the Session, the Prince George’s County delegation sponsored “two un complicated and brief” bills concerning Prince George’s County’ s authority to impose certain energy and transfer taxes (H.B. 889 and H.B. 890), and a third bill authorizing the imposition of deve lopment impact fees (H.B. 891). None of the bills included ethics measures, and all passed the House and were sent to the Senate. Porten , 318 Md.
at 389-90, 393-94.

Then, in late March of that year, various newspaper s reported on an unsuccessful attempt by Walter H. Maloney, th e former County Attorney for Prince George’s County, to disq ualify five members of the County Council from voting on a zoni ng application filed by a developer that had contribut ed to their campaigns. Id . at 394; E. 285, 460. According to the affidavit of
then-Senator Frank J. Komenda, who chaired the Coun ty delegation, the case “accentuated concerns of membe rs of the Delegation first felt during the summer of 1988 whe n constituents

12 Much of this legislative history comes from the re cord in Porten

, which included the parties’ stipulations on the pro gress of the legislation through the General Assembly. See 318 Md. at 395, n.4. Where necessary, we will cite to the pages of the record extract on file in our office, using the “E” designation required by Rule 8-503(b).Gen. 55] 65

conveyed their views about perceived conflicts of i nterest of

Council members.” E. 255. Senator Komenda testifi ed that the Maloney case had “troubled community activists” and that the Prince George’s Civic Foundation “urg[ed] a legisla tive remedy for this problem.” Id . In response, the Senate delegation subcommittee that Senator Komenda had appointed to address House Bills 889, 890, and 891 began to draft amendm ents “to address the problem.” Id . Those amendments were added onto H.B. 890, such that “[w]hat had been essentially a one-page bill concerning ‘Prince George’s County—Transfer Tax’ wa s . . . transmogrified into lengthy emergency legislation e xtending to ‘Prince George’s County Council—Ethics and Taxing A uthority.’”

Porten , 318 Md. at 395.

Meanwhile, the press continued to report on the cou ncil members’ fundraising practices. On April 2, the Wa shington Post reported that three council members had received on e-third to onehalf of their contributions from development intere sts. E. 258, E. 329-30 (Retha Hill, Eugene L. Meyer, Links with Developers Spotlighted by P.G. Bill; Council Members Deny Bein g Influenced

, The Washington Post (April 2, 1989)). On April 4, the Prince George’s County Journal reported on another case in which County

Council members had been asked to abstain from voti ng on a project proposed by a developer who had contributed to each of their campaigns. E. 258 (referring to article enti tled “Abstention urged on MetroView vote”).

The special ethics law, made part of H.B. 890, pass ed on the last day of the Session. 1989 Md. Laws, ch. 244. The new law
added a subtitle 6 to the State Public Ethics Law, which was then codified in Article 40A of the Maryland Code. See Porten , 318 Md. at 389-90 (summarizing the law). In its broad outline, the law was similar to the provisions currently in Part V; it provided for council members to abstain from participating in la nd use matters where the applicant had promoted their candidacy du ring the preceding 36 months and required applicants to file affidavits disclosing their contributions. Former Art. 40A, § 6-603. Many of the details, however, differed. For example, the 1 989 law required applicants to file their affidavit “[a]t the time a n application is
filed,” id . § 6-603(b), did not define “application” to inclu de a person’s appearance at hearings on sectional map am endments, and did not address contributions made through politica l action

committees or to a slate of candidates that include d a Council

member. Porten , 318 Md. 391, n.1. Because it was enacted as an66 [100 Op. Att’y

emergency measure, the new law took effect upon the Governor’s signature on May 5. Id . at 389.

The 1989 legislation had an immediate impact. Even before the legislation was signed, the Prince George’s Cha mber of Commerce “strongly recommend[ed]” that its members exercise “caution in considering any contribution to an elec ted official or candidate for public office, whether at the local o r state level.” E. 408. The Suburban Maryland Building Industry Assoc iation (“SMBIA”) “strongly recommended that no contributions be made to the County Executive, the County Council, or any other State or local elected official.” E. 407 (emphasis in the o riginal). In a May legislative report to its members, the SMBIA stated that, “[f]rom the standpoint of the building community, this legi slation has—and will have—a favorable impact. (Fundraisers for Cou ncil members were starting to get out of hand in terms of their frequency, and our industry was very heavily lobbied to contribute).” E. 604. The report then stated, “The practice has now come to a screeching

halt.” Id.

, see also E. 573 (discussing legislative report).

Meanwhile, the Ethics Commission was addressing que stions about how, and to whom, the new law applied. In an extensive response to a publicly-traded corporation’s inquiry as to the filing requirements applicable to its stockholders, employ ees, and related
entities, the Ethics Commission noted that “there c ontinue to be other issues regarding implementation of this law” that would require further guidance. See State Ethics Opinion No. 89-7 (June 20, 1989). In November, a Washington Post article noted that the campaigns of the eight council members who had file d reports had together collected only $865 after April 10, in con trast to the $237,450 they had collected in the approximately fi ve-month period before the passage of the bill. Derald Ever hart, Ethics law puts crimp in donations , The Prince George’s Journal (Nov. 10,
1989).

The law was short-lived. On July 26, the Porten Su llivan Corporation, a developer, challenged the statute on multiple grounds, including a claim that the legislation emb raced more than one subject and thereby violated the “single subjec t” rule of Article III, § 29 of the Maryland Constitution. Porten , 318 Md. at 395. Although the circuit court denied all relief, the C ourt of Appeals granted certiorari before proceedings in the Court of Special Appeals and, on February 6, 1990, declared the ethi cs portions of the statute void under the single-subject rule. Id . at 409.Gen. 55] 67

B. The 1990 Legislation – The Extension of the Term “Application” to Area Master Plan and Sectional Map Amendment Proceedings

Shortly after the Court issued its decision in Porten , the General Assembly took up consideration of a new eme rgency bill (S.B. 832) designed to address continuing concerns about District Council members’ presiding over their campaign cont ributors’ land use applications. Although the new bill was simila r in many respects to the previous year’s bill, it differed i n several ways material to your question. For example, while Chap ter 244 was in effect, a question had been raised about its applic ability to the sectional map amendment process, which is initiated by the District Council and thus does not involve an “applicant” in the traditional sense of the word. E. 510. Senate Bill 832 propos ed to resolve that question by broadening the definition of “applicati on” to include a person’s “participation in adopting and approving a n area master plan or sectional map amendment by appearance at a public hearing, filing a statement in the official record, or other similar communication to a member of the County Council or the Planning Board, where the intent is to intensify the zoning category applicable to the land of the applicant.” 1990 Ses s., S.B. 832 (proposed Art. 40A, § 6-601(d)(3), currently codifi ed at GP § 5- 833(d)(3)). The 1990 bill also proposed to make th e applicant’s affidavit due “[a]fter an application is filed,” “a t any time prior to consideration of the application by the District Co uncil,” but “in no event . . . less than 30 calendar days prior to con sideration by the District Council of the application.” 13 1990 Sess., S.B. 832 (proposed Art. 40A, § 6-602(b)(1), (2)). The bill failed.

13 The legislative record also indicates that the Gen eral Assembly was considering other adjustments in response to questi ons raised in Porten

. See Letter from Assistant Attorney General Robert A. Za rnoch to Hon. Timothy F. Maloney (Feb. 12, 1990). Those question s included whether Chapter 244 applied to contributions to slates and political action committees and to persons with minor connections to an applicant. See

Porten , 318 Md. at 391-92, nn. 1, 2. In addition, legisl ators sought our

Office’s advice on various constitutional and other issues raised by the

Court’s decision in Porten

. See Letters of Assistant Attorney General Robert A. Zarnoch to Hon. Joseph F. Vallario, Jr. ( March 9, 1990), Hon. Timothy F. Maloney (Feb. 2 and 13, 1990), Hon. Paul Pinsky (Feb. 27, 1990), and Hon. Frank J. Komenda (March 15, 1990).68 [100 Op. Att’y

C. The 1991 Legislation and the Amendment of the Open Meetings Act

News reports in the bill file indicate that legisla tion similar to that introduced in 1990, but applicable to both Pri nce George’s and
Howard Counties, was introduced in the 1991 Session but again

failed. 14 During that session, however, the General Assembl y also
considered another reform measure, S.B. 170, which proposed to make quasi-judicial land use proceedings subject to the State’s Open Meetings Act. At the time, the Open Meetings Act did not apply to a public body when it was performing a “qu asi-judicial” function, and decisions on applications for land us e actions were generally deemed quasi-judicial. Accordingly, many zoning boards had been deliberating behind closed doors. See Wesley Chapel Bluemount Ass’n v. Baltimore County , 347 Md. 125, 141 (1997) (“The exemption in the 1977 law for quasi-ju dicial functions served, in effect, to permit zoning board s, boards of appeals, and other administrative agencies to conti nue deliberating in closed session with respect to contested case he arings.”). The change that S.B. 170 proposed gave rise to discussi on as to whether a zoning board’s deliberations on an application, in addition to its

decision , must be carried out in public.

The bill initially proposed to clarify that the Ope n Meetings Act applied “to a public body when granting a licen se or permit or making a land use decision.” S.B. 170, 1991 Leg. R eg. Sess. (first reader). It was then amended in committee to exten d the Act’s requirements to “a public body when it is meeting t o consider : (1) Granting a license or permit; or (2) A special exce ption, variance, conditional use, zoning classification, the enforce ment of any zoning law or regulation, or any other zoning matte r.” Id. (second reader) (emphasis added).

Prince George’s County and other local public bodie s opposed making zoning board deliberations open to t he public. The County proposed that S.B. 170 be amended furthe r to provide that a public body “may conduct deliberations in cl osed session after the closing of the record, but that the decis ion and the reason for the decision shall be made in open session.” 19 91 Sess., S.B.

14 See Andy Markowitz, Developers in probe generous to
campaigners , The Prince George’s Journal (Jan. 24, 1992) (repo rting that two delegates had introduced legislation “mirr oring the 1989 measure for both Howard and Prince George’s countie s” but it “died in committee”); Andy Markowitz, Fed probe brings bill back to life , The Prince George’s Journal (Jan. 31, 1992) (reporting that “[e]fforts to
resurrect the [1989] law in 1990 and 1991 were defe ated”).Gen. 55] 69

170, “Prince George’s County Legislative Position” (Feb. 19, 1991). The Maryland Association of Counties commen ted that “this provision is dealing with quasi-judicial func tions,” and that, “[w]hile it is appropriate for the taking of testim ony to be done in an open meeting, the deliberations of such bodies s hould be done in private, as are the deliberations of a jury.” 19 91 Sess., S.B. 170,

“Memorandum to the Senate Economic and Environmenta l Affairs Committee” (Feb. 21, 1991). The Maryland Municipal League (“MML”) also proposed amending the bill to provide that public bodies conducting the proceedings covered by the am endment be required to meet in public only when “hearing testi mony.” MML stated that “there should be no requirement that th e deliberations of any quasi-judicial body be held in open session,” a nd that “[d]uring these discussions candid and frank interchange is e ssential.” Maryland Municipal League, Proposed Amendments to S .B. 170, Amendment #3 (March 26, 1991).

In response to these local government concerns, an

amendment was offered to the committee that would h ave required a public body to meet in public only when “hearing testimony regarding” a land use matter and not, as the bill t hen read, when “meeting to consider ” such a matter. The amendment was rejected. An undated and anonymous handwritten note in the bi ll file reflects

one committee’s consideration of the amendment and records the committee’s view that the open meetings bill was an alternative to the Prince George’s County ethics bill:

Amendment was offered to workgroup and to full Committee. Amendment was rejected.

Committee intends to cover deliberations concern[ing] licenses, permits, and zoning. Decisions are to be based on the public record

& therefore saw no reason for discussion of the public record to occur behind closed

doors. . . . Also the current perception about local zoning processes was of concern to the Committee and it believed that opening these meetings would go a long way to combatting the negative perceptions & a better 1st approach than P[rince] G[eorge’s] Public Ethics bills, or similar efforts

.70 [100 Op. Att’y

1991 Sess., S.B. 170, Amendment (Apr. 4, 1991) (emp hasis added). 15 The bill file reflects that the amendment was lat er introduced as a floor amendment and again was rejec ted.

The General Assembly passed S.B. 170, and the Gover nor signed it into law. See 1991 Md. Laws, ch. 655. Now codified at GP § 3-103(b)(2), the provision makes the Open Meet ings Act expressly applicable to a public body when it is “m eeting to consider: . . . a special exception, variance, cond itional use, or zoning classification, the enforcement of any zonin g law or regulation, or any other zoning matter.” In using the word “consider,” the General Assembly was using a term t hat it had already used in the Open Meetings Act and that the Court of Appeals had already construed, for purposes of that law, as including “the deliberative and decision-making pro cess in its entirety.” New Carrollton v. Rogers , 287 Md. 56, 72 (1980).

D. The 1992 Enactment

“Negative perceptions” about Prince George’s County land use proceedings again came to the General Assembly’ s attention in 1992. Early in that session, the Washington Post r eported that a federal grand jury had subpoenaed the County’s zoni ng records relating to those developers who had been “among th e biggest financial contributors to County Council campaigns” and the

financial disclosure forms of all members of the Co uncil since 1986. Michele L. Norris and Paul Duggan, P.G. Probe Eyes Top Developers; Land-Use Inquiry targets Council’s Ties to

Businessmen , Washington Post (Jan. 23, 1992). The article sta ted that the investigation had begun “almost two years ago, when civic groups began publicly complaining of allegedly corr upt land deals and calling for a full investigation by the U.S. at torney’s office in

Baltimore.” Id . Citing a “federal law enforcement source,” the article reported that FBI agents assigned to the ca se had gathered “‘a lot of intelligence’ about the connections amon g developers,

15 Although some commentators have described such und ated and anonymous notes as “inherently dubious,” see Jack Schwartz & Amanda
Stakem Conn, The Court of Appeals at the Cocktail Party: The Use and Misuse of Legislative History , 54 Md. L. Rev. 432, 453 (1995), the Maryland appellate courts sometimes use such materi als to discern legislative intent. See id. (citing Webber v. State , 320 Md. 238, 247 (1990), Franklin Square Hosp. v. Laubach , 318 Md. 615, 621-22 (1990),

and Warfield v. State , 315 Md. 474, 497-98 (1989)); see also McNeil v.

State , 112 Md. App. 434, 452 n.9 (1996) (relying on “und ated, handwritten notes” contained in the legislative com mittee’s working papers).Gen. 55] 71

zoning lawyers and current and former council membe rs.” Id

. Another article in the bill file quoted the Senate President as stating that the offices of the members of the County deleg ation had been “besieged with calls from constituents . . . reques ting that legislation be introduced again” and that the deleg ation would meet to consider re-introducing a county ethics bill. D avid Sokolik and Maria Douglas, Reviving ethics law considered in wake of

constituents’ calls , The Prince George’s Journal (Jan. 24, 1992).

In response, the Prince George’s County Senate dele gation sponsored an ethics bill, S.B. 701, which would hav e imposed affidavit requirements and deadlines that were subs tantially the same as those that appear in the current law. Sena te Bill 701 passed

the Senate but died in the House.

The Senate then amended H.B. 937—an unrelated piece of legislation addressing Montgomery County planning a nd zoning

matters—to include the text of S.B. 701. The House passed the amended legislation on the last day of the session and, on May 29, 1992, the Governor signed it into law. 1992 Md. La ws, ch. 643.

The life of Chapter 643 was even shorter than that of Chapter 244 of the 1989 laws, and it ended the same way. T wo days after Chapter 643 took effect, the County Executive, a co mmittee supporting his gubernatorial campaign, and two indi viduals filed a declaratory judgment action seeking a declaration t hat the law violated the single-subject rule. This time, the c ircuit court agreed and declared the ethics provisions severable and vo id. The Court of Appeals, again taking the case before the Court of Special Appeals heard it, affirmed that judgment on January 12, 1993, one day before the General Assembly convened its 1993 S ession. State v. Prince Georgians for Glendening , 329 Md. 68 (1993).

E. The Law Takes its Current Form

Lasting ethics legislation for Prince George’s Coun ty was finally enacted in the 1993 session. The measure w as introduced as H.B. 989, passed by the General Assembly, and si gned by the

Governor. See 1993 Md. Laws, ch. 577. In most respects, the 1993 legislation established the present contours of the law; it contained the same affidavit requirement, the same disqualifi cation obligation, and the same timing provisions that we construe below. Two aspects of the current law were added in 2011, again in response to reports of corruption in Prince George’ s County. Two months before the General Assembly convened for tha t session, the72 [100 Op. Att’y

press reported the arrest of the outgoing County Ex ecutive and his wife—a newly-elected Council member—on charges rela ted to his receipt of payments from developers and her tamperi ng with and destroying evidence. See, e.g ., Paul Schwartzman, Ruben Castaneda, and Cheryl W. Thompson, Jack Johnson, Prince George’s county executive, and his wife, Leslie, ar rested , The Washington Post (Nov. 13, 2010). In February, 2011 , Mr. Johnson was indicted on extortion and bribery charges relat ed to his alleged receipt of more than $200,000 from developers start ing in 2003. See, e.g. , Associated Press, Former Prince George’s County exec Jack Johnson pleads not guilty in case , The Daily Record (March 15, 2011).

Meanwhile, Mr. Johnson’s newly-elected successor an d the County’s delegation began working on legislative pr oposals. After considering a recommendation that the County Counci l members be stripped of all development review powers, the d elegation instead agreed to introduce a bill to strengthen th e State Ethics Law and the County Ethics Commission and curtail the Co unty Council’s ability to delay development deals. See, e.g. , Miranda S. Spivack, Bill would end ‘pay to play’ in Prince George’s Cou nty

, The Washington Post (March 16, 2011) (reporting tha t “[t]he bill stems in part from longtime complaints that past co uncils have operated secretively, threatening developers that t heir plans would be held up indefinitely unless they offered concess ions or hired an associate of a council member”).

The legislation that emerged, and was enacted, made two changes to what is now Part V. See 2011 Md. Laws, ch. 91. The first change strengthened the disqualification requ irement. At the time, the provisions that now comprise Part V only disqualified a member from voting or participating on a matter if an applicant or agent had filed an affidavit “naming the member or the member’s continuing political committee as the recipient of a payment.” Md. Code Ann., State Gov’t (“SG”), § 15-831(b)(2)(i) (2 009 Repl. Vol.); see also State Ethics Opinion 96-02 (concluding that a member’s receipt of actual notice, through an inter ested party’s

introduction of evidence into the record of the lan d use proceeding, would not disqualify the member). Chapter 91 delet ed the filing of the affidavit as the trigger for the disqualificati on requirement with the result that the member’s duty no longer hinges entirely on the applicants’ compliance with the affidavit requireme nt. GP § 5- 835(b)(1). The second change broadened the definit ion of “payment” and other provisions in Part V to include contributions to a slate to which a member belonged. GP §§ 5-833 (m), 5-835.Gen. 55] 73

Finally, in 2014, the relevant statutory provisions were recodified and transferred from Part IV of Title 15 of the State Government Article to its current place in Title 5 of the newlycreated General Provisions Article. 2014 Md. Laws, ch. 94. During that process, the code revision committee ma de a number of presumptively non-substantive wording changes to the statute, including the affidavit and disqualification provis ions we address here. The most notable change occurred in the prov ision that governs the timing of the affidavit requirement. P rior to recodification, § 15-831(c)(2) of the State Governm ent Article provided:

The affidavit may be filed any time prior to consid eration of the application by the District Council, at the dis cretion of the applicant. However, in no event may the affidavit b e filed less than 30 calendar days prior to consideration by the Dist rict Council of the application.

As it now appears in Part V, the timing provision s tates: “The affidavit shall be filed at least 30 calendar days before consideration of the application by the District Co uncil.” GP § 5- 835(c)(2). The Revisor’s note explains that “the f ormer reference to filing the affidavit ‘any time prior to consider ation . . . at the discretion of the applicant’ [wa]s deleted as surpl usage.” Id

. (ellipsis in original).

III

Analysis

A

. Calculating the Affidavit Filing Deadline

Your first question requires us to address two subs idiary questions related to area master plan and sectional map amendment proceedings: (1) At what point does the District C ouncil’s “consideration” of a person’s application begin?; a nd (2) If a person “applies” by testifying at a hearing at whic h the District Council is deemed to be “considering” that applicat ion, when must that person file the affidavit about campaign contr ibutions?

1. When “Consideration” Occurs

The Ethics Law does not define the word “considerat ion,” and the appellate courts have not addressed its meaning for purposes of Part V. The General Assembly has instructed, howev er, that all but the criminal sanctions provisions of the Ethics Law must be74 [100 Op. Att’y

“liberally construed” to accomplish the purpose beh ind the law. GP § 5-102(c). The statute makes that purpose expli cit. After declaring that public “confidence and trust is erod ed when the conduct of the State’s business is subject to impro per influence or even the appearance of improper influence,” the Gen eral Assembly

stated:

For the purpose of guarding against improper

influence, the General Assembly enacts this Maryland Public Ethics Law to require certain government officials and employees to

disclose their financial affairs and to set

minimum ethical standards for the conduct of

State and local business.

GP § 5-102(b); see also Carroll County Ethics Comm’n v. Lennon

, 119 Md. App. 49, 71 (1998) (describing the Legislat ure’s “clear intent” that the State Ethics Law be “liberally con strued to accomplish this purpose”); 99 Opinions of the Attorney General 171, 186 (2014).

More generally, the Court of Appeals instructs us t o “ascertain and effectuate the real and actual inten t of the Legislature.” Maryland Econ. Dev. Corp. v. Montgomery County

, 431 Md. 189, 199 (2013) (citation and quotation mar ks omitted)
(“ MEDCO ”). We “begin[] with the plain language of the sta tute, and ordinary, popular understanding of the English language dictates interpretation of its terminology.” Id. (citation and quotation marks omitted); see also Blue v. Prince George’s County

, 434 Md. 681, 689 (2013) (statutory language is “typ ically given its ordinary meaning, viewed in context, considered in light of the whole statute, and generally evaluated for ambiguit y”). The goal of statutory interpretation “is always to discern t he legislative purpose, the ends to be accomplished, or the evils to be remedied by a particular provision.” People’s Ins. Counsel Div. v. Allstate

Ins. Co ., 408 Md. 336, 351 (2009) (internal quotation mark s omitted). In the end, the language “should be cons trued to carry out and effectuate, or aid in, the general purposes and policies of the statute being interpreted.” MEDCO , 431 Md. at 199 (citation and internal quotation marks omitted).

Our discussion thus begins with the ordinary meanin g of “consideration.” In determining a word’s “ordinary meaning,” the Court of Appeals often turns to a dictionary and ha s done so when construing undefined terms within the Ethics Law. See State Ethics

Commission v. Antonetti , 365 Md. 428, 452 (2001) (construing the term “participate” in what is now GP § 5-501); see also, e.g., Blue

,Gen. 55] 75

434 Md. at 690 (turning to “[c]ommon dictionary definitions” when the “statute itself does not provide a specifi c definition”). The 1989 edition of Webster’s Ninth Collegiate Dict ionary defines “consideration” as “continuous and careful thought, ” as in, “after long consideration he agreed to their requests.” T he 1984 edition of Webster’s New World Dictionary defines “consider ation” as “1. The act of considering; deliberation.” 16 These definitions do not confine the word to any particular stage of deliber ation; they encompass the entire process.

The dictionary definition of the term “consideratio n” comports with the Court’s understanding of the word as used in the Open Meetings Act. See New Carrollton , 287 Md. 56. The New

Carrollton Court, noting that the act “covers all meetings at which a quorum of the . . . public body is convened ‘for the purpose of considering or transacting public business,’” state d:

It is, therefore, the deliberative and decisionmaking process in its entirety which must be conducted in meetings open to the public since every step of the process, including the
final decision itself, constitutes the consideration or transaction of public business.

Id. at 72 (referring to a provision now codified at GP § 3-101(g) 17 ); see also College Park v. Cotter , 309 Md. 573, 585 (1987) (quoting

New Carrollton ). Likewise, the ordinary definition of “consideration” comports with the way the General A ssembly used the word in 1991, when it addressed the “negative p erceptions” about local zoning processes by amending the Open M eetings Act to require a public body to meet openly when it is “meeting to

16 Black’s Law Dictionary, often consulted by the Co urt, see, e.g

., Stoddard v. State , 395 Md. 653, 669 (2006) (consulting that dictiona ry for an “ordinary, popular” meaning of a word), defi ned the noun “consideration” only by reference to its usage in c ontracts law. Black’s Law Dictionary (6th ed. 1990). Black’s defined the verb “to consider” in its ordinary sense as: “To fix the mind on, with a view to careful examination; to examine; to inspect. To deliberate about and ponder over. To entertain or give heed to.” Id.

17 Under the Open Meetings Act, “meet” now means “to convene a quorum of a public body to consider or transact pub lic business.” GP § 3-101(g).76 [100 Op. Att’y

consider” zoning matters, not just when it votes on them. See 1991
Md. Laws, ch. 655. 18

We turn next to whether the ordinary meaning of “consideration” effectuates the Legislature’s inten t, or, conversely, results in absurd and presumably unintended consequ ences. See, e.g., Blue , 434 Md. at 689 (stating that “the consequences of alternative readings” should be evaluated and absur d consequences avoided). One potentially illogical consequence of interpreting “consideration” to include the hearing at which the applicantcontributor initially appears emerges quickly in th e quasilegislative context: How can an applicant file the affidavit “[a]fter an application has been filed” (GP § 5-835(c)(1)) b ut 30 days “before” the council considers it (GP § 5-835(c)(2) ) if the application and consideration occur simultaneously? The interplay of these two timing provisions would seem to compel the conclusion that “consideration” of area master plan s and sectional map amendments must mean a later step in the counci l’s proceedings, whether that be a subsequent hearing o r the actual

decision on the application.

Although reading “consideration” to mean a later st ep in the deliberative process would seem to preserve the log ic of the statute’s timing provisions, it has other limitatio ns that weigh against it. First, that reading would assume that the Legislature intended to assign greater deliberative significanc e to one hearing

over another. We see no evidence of such intent or even a logical basis on which to make such a distinction. Equatin g “consideration” with “ decision ” might make logical sense, but it
would seem to be inconsistent with § 5-837, which u ses another term—“final action”—for the ultimate disposition of the application. More importantly, an interpretation o f “consideration” that allows a Council member to attend a hearing at which a

18 For one commentator’s description of the 1991 ame ndment of the Open Meetings Act as a way of promoting integrity i n land use

processes, see Philip J. Tierney, Bold Promises But Baby Steps: Maryland’s Growth Policy to the Year 2000 , 23 U. Balt. L. Rev. 461, 520, n.48 (1994) (“The element of greed is . . . a factor sometimes present in the land use regulatory process as illus trated by Maryland’s periodic history of political corruption by local z oning officials that prompted the state legislature and the courts to ad opt a number of reforms that include among other requirements: open meetings, Md. Code Ann., State Gov’t §§ 10-501 to 10-512 (1993 & Supp. 1994); public ethics and financial disclosure requirements , Md. Ann. Code art. 40A, §§ 1-101 to 7-104 (1993 & Supp. 1994); and adj udicatory safeguards . . . .”).Gen. 55] 77

campaign donor advocates in support of his applicat ion cannot be squared with other provisions of the statute or wit h its broader public policy goal of limiting the influence of cam paign contributions on the County’s land use process. Th e statute provides that a council member “may not vote or par ticipate in any way” in a proceeding involving a contributor’s appl ication. GP § 5-835(b)(1). Although the term “participation” i s not defined in the statute, the Court of Appeals has construed tha t term, in another
section of the Ethics Law, to mean “to have or take a part or share with others (in some activity, enterprise, etc.).” Antonetti , 365 Md. at 452 (adopting the definition in Webster’s New Wo rld College Dictionary in construing the requirement that an of ficial may not “participate” in a matter if a relative has an inte rest in the matter). By that standard, a council member’s presence durin g his contributor’s testimony would constitute “participa tion” in the proceedings. 19

In our opinion, the statute’s policy goal—limiting the influence of campaign contributions on the County’s land use process—would be undermined if the affidavit deadli ne were to be interpreted to allow a Council member to be present during a contributor’s presentation. The General Assembly s ought not only to restrict influence, but also to improve public c onfidence in the integrity of the land use process by eliminating ev en “the

appearance of improper influence.” GP § 5-102(a)(2) (emphasi s added). That larger goal, too, would be undermined by giving the conflicted Council member a place at the table rega rdless of whether he overtly influences the Council’s deliber ation. A member could influence, or appear to influence, his colleagues’ position on his contributor’s proposal in any numbe r of ways during the hearing, whether by making comments, ask ing

19 We recognize that the language of § 5-835(b)(1) s uggests that the disqualification provision applies only “[ a ] fter [a contributor’s] application has been filed,” which could be read as authorizing the council member to participate while that application is being filed. As discussed above, these timing provisions seem to ha ve been drafted for the type of traditional application that is submitt ed in a quasi-judicial proceeding, where the Council’s consideration would only come after the application is submitted. See supra at 2. In that context, giving effect to the timing provision in § 5-835(b)(1) makes sens e. We believe it makes considerably less sense when read in the cont ext of proceedings on an area master plan or sectional map amendments, which are quasilegislative actions that are initiated in ways othe r than the filing of a traditional application.78 [100 Op. Att’y

questions, or even just seeming to convey his appro val or disapproval of particular witnesses’ testimony. Th e potential for that influence could be magnified in a jurisdiction like Prince George’s County, where elected officials serve by d istrict, rather than at large. In those circumstances, “councilman ic courtesy” can give decisive weight to an official’s views on a pr oposal involving

the official’s home district. 20

The principles that guide the interpretation of sta tutes thus suggest a broad construction of the term “considera tion.” A broad construction effectuates legislative intent, compor ts with the General Assembly’s direction that the Ethics Law “b e liberally construed,” GP § 5-102(c), and gives this remedial statute the construction necessary “to suppress the evil and ad vance the remedy.” See Lark v. Montgomery Hospice, Inc ., 414 Md. 215, 228 (2010). In this regard, we note the observatio n of the Court of Appeals that the need for the enforcement of ethics laws is “‘perhaps even more acute . . . at the local govern ment level, where the government and its citizens have greater contac t with one

another.’” Antonetti , 365 Md. at 447-48 (addressing the conduct of an employee of local board of elections, a State ag ency, quoting

Lennon , 119 Md. App. at 61). If anything is clear from th e long legislative history of this statute, it is the Gene ral Assembly’s repeatedly-demonstrated concern about the erosion o f public confidence in the County’s land use process brought on by repeated reports of abuse. It thus makes sense—and does not lead to absurd consequences—to read the affidavit deadline in such a way as to disqualify Council members from their contributors’ land use applications in time to prevent them from participa ting in any phase

of the Council’s deliberation.

To summarize, we believe that a narrow interpretati on of “consideration” to exclude the early stages of the District Council’s

20 “In some large cities land-use decisions are dete rmined by a system of ‘councilmanic courtesy’: all members of the elec ted governing body informally agree to follow the decision of the memb er from the district where the land-use problem has arisen.” David Schl eicher, City Unplanning , 122 Yale L.J. 1670, 1710 (2013) (quoting Robert C

. Ellickson, Suburban Growth Controls: An Economic and Legal Analysis , 86 Yale L.J. 385, 408 n.60 (1977)). The practice is related to “local courtesy,” which is “an unwritten, commonly observed custom

where the members of both the House and the Senate of the General Assembly defer to the representatives of a particul ar jurisdiction, i.e. a county’s local legislative delegation, on matters a ffecting only that

district.” Getty v. Carroll County Bd. of Elections , 399 Md. 710, 724-25 n.13 (2007).Gen. 55] 79

proceedings, whether in a meeting or by other actio n of that body, would weaken the disqualification requirement, run counter to the General Assembly’s likely understanding of the word when it enacted the law, and conflict with the statutory re quirement that the Ethics Law be construed “liberally” to achieve its purposes. Given the shared purpose of Part V and the Open Meetings Act to enhance public faith in government through disclosure requi rements, and the General Assembly’s consideration of both laws a s a way of addressing the influence of campaign contributions on the District
Council’s land use decisions, we believe that the New Carrollton definition of “consideration” applies here. In our opinion, then, “consideration” for purposes of Part V means the Co uncil’s “deliberative and decision-making process in its en tirety.” See

New Carrollton , 287 Md. at 72.

2. When the Affidavit Must Be Filed

We turn now to the more practical question of when, given our conclusion above, the applicant must submit his or her affidavit. Again, the statute contains two provisi ons that bear on the issue: § 5-835(c)(1), which requires that the applicant file the affidavit “[a]fter an application is filed,” and § 5-835(c)(2), which requires that the affidavit be filed “at least 30 c alendar days before consideration of the application by the District Co uncil.” When an applicant who has contributed to a member’s campaig n applies only by testifying at a hearing, these two provisio ns conflict: the first would seem to allow the applicant to file the affidavit after testifying, while the second would require him to f ile it at least 30 days before testifying.

The only way to achieve the timely disqualification of the member from the proceeding is to require the applic ant to file the affidavit before the hearing. So, given the choice between the two timing provisions, the provision that requires that the affidavit be filed “at least 30 calendar days before considerati on of the application,” GP § 5-835(c)(2), best effectuates th e Legislature’s intent that District Council members be timely barr ed from participating in, and voting on, their contributors ’ land use matters. This conclusion is clearer still from the wording o f the timing provision prior to its recodification in 2014:

The affidavit may be filed any time prior to consideration of the application by the District Council, at the discretion of the applicant.

However, in no event

may the affidavit be80 [100 Op. Att’y

filed less than 30 calendar days prior to consideration by the District Council of the application.

Former SG § 15-831(c)(2) (emphasis added); see also Allen v.

State , 402 Md. 59, 71-72, (2007) (observing that the “[r ]ecodification of statutes is presumed to be for the purpo se of clarity rather than change of meaning”). In our view, the legisla tive intent behind Part V would not be served by enabling an ap plicant to delay a council member’s disqualification by waitin g to file the affidavit until after the hearing on whether to re- zone the planning area in which the applicant’s land lies. See GP § 5-835(f) (prohibiting an applicant from taking “any action, directly or indirectly, with the intent to circumvent the inten t of this part”).

We reach the same result by applying the formalisti c rule that when two provisions in a statute conflict, the more specific prevails over the more general. See, e.g., A. S. Abell Pub. Co. v. Mezzanote

, 297 Md. 26, 40 (1983) (“Ordinarily, a specific enac tment prevails over an incompatible general enactment in the same or another statute.”). Section 5-835(c)(1) focuses on the cont ent of the affidavit and addresses timing only in a generally- worded preface to its detailed description of the disclosures to b e made. By contrast, § 5-835(c)(2) focuses only on timing. Given the structure of the section and the emphasis given to the 30-day provision in its earlier form, we believe that § 5-835(c)(2)—“at lea st 30 calendar days before consideration of the application”—provi des the operative deadline. 21

In construing Part V, we have referred only to Stat e law; our interpretation of what it means for the District Co uncil to “consider” an application does not hinge on the pro cedures the Council has established by ordinance. We have done so because the General Assembly expressly provided that the Co unty must carry out the land use powers granted to it by the Regional District Act “in accordance with” the Special Provisions, “[n]otwithstanding any other provision of law.” GP § 5-834. Moreover, an uncodified section of Part V provides that “this Act:

21 As noted above, there are similarities between th e affidavit filing deadlines in the Howard County and Prince George’s County ethics provisions. See supra note 11. Although that might suggest that the conclusions we reach here can be applied in Howard County as well, we cannot rule out the possibility that the meaning of the term “consideration” might vary with the circumstances o f each county’s “special” provisions. We do not mean to foreclose that possibility here; we construe only the Prince George’s County provisi ons.Gen. 55] 81

(1) Supersedes any Prince George’s County ordinance dealing with subjects covered by this Act; and (2) May not be su pplemented by any Prince George’s County ordinance.” 1993 Md. La ws, ch. 577,
§ 4; see also, e.g., County Council of Prince George’s County v. Brandywine Enters. , 350 Md. 339, 346 (1998) (observing that “any enactment concerning zoning in the county, which is at variance with the Regional District Act, is inoperative with in the district”) (citation and internal quotation marks omitted); Northampton Corp. v. Prince George’s County , 273 Md. 93, 96 (1974) (same).

Accordingly, a person who supports the up-zoning of property

in which he has an interest must file the contribut ion affidavit 30 days before any stage of the District Council’s del iberation on the matter, no matter how that person chooses to “apply .” For example, if a landowner “applies” by asking a Counc il or Planning Commission member to initiate the process for a sec tional map amendment that would up-zone the landowner’s proper ty, the landowner must file his affidavit 30 days before th e District Council, as a body, addresses whether to initiate t he process. Likewise, a landowner who wishes to “apply” by appe aring at a District Council hearing on the matter must file th e affidavit 30 days in advance of the hearing.

We understand that, under this interpretation, a pe rson who wants to participate only by speaking at a hearing before the

District Council must form that intention in time t o file an affidavit 30 days in advance. We read the statute as requiri ng that level of foresight because the Ethics Law expressly requires that the County’s land use powers “shall be carried out in a ccordance with”

Part V. See GP § 5-834. In other words, the County must adap t its land use decision-making process to accommodate the requirements of Part V, not the other way around. The County must therefore give landowners adequate notice of upcomi ng proceedings that might affect their property, and l andowners who want their land up-zoned during those proceedings m ust plan accordingly.

B. Whether an Application “Can Move Forward” When an Applicant Has Failed to File the Required Affidavit 30 Days Before the Council Meets to Consider the Applicatio n

In our view, the Council lacks the power to proceed with the application of a person who has failed to timely fi le the required affidavit. Although Part V does not explicitly pro vide as much, we82 [100 Op. Att’y

believe the District Council is not authorized to p roceed in the face of an applicant’s or agent’s violation of Part V.

The Council does not have inherent zoning powers; i nstead, it has only those powers that the State has granted it. See Montgomery Pres., Inc. v. Montgomery County Plannin g Bd. of the Maryland-National Capital Park & Planning Comm’n , 424 Md. 367, 377 (2012) (“The Council can only exercise its powers under

the statute to the extent and in the manner directe d by the legislature”). As to the Prince George’s County la nd within the Maryland-Washington Regional District, those powers are granted by the Regional District Act. See Brandywine , 350 Md. at 346 (observing that “the Regional District Act is the e xclusive source of zoning authority in those areas of Prince George ’s County located within the Regional District”). Section 22 -206(b) of the
Land Use Article, which authorizes the District Cou ncil to adopt certain procedures, does not list the ethics deadli nes as one of the procedures the District Council may alter. Moreove r, as we noted in the preceding section, the District Council may only exercise its Regional District Act powers “in accordance” with P art V. GP
§ 5-834. In our view, it would not accord with Par t V for the District Council to consider the applications of la ndowners who have violated the affidavit requirement, especially as the efficacy of the disqualification requirement hinges largely on compliance with the affidavit requirement. See, e.g., GP § 5-839(b)(3) (providing that a member “is guilty of violating th is part only if the member fails to abstain from voting or participatin g in a proceeding, based on information contained in an af fidavit”).

The importance of strict compliance with the affida vit requirement is also reflected in the judicial revie w provisions of the
statute, which mandate that the circuit court “ shall issue an order voiding an official action taken by the County Coun cil if . . . the action taken by the County Council was in violation of this part.” GP § 5-839(a)(2) (emphasis added). In short, “any enactment concerning zoning in the county, which is at varian ce with the Regional District Act, is inoperative within the di strict.” Brandywine , 350 Md. at 346 (citation and internal quotation m arks omitted).

Finally, we note that nothing in Part V gives the D istrict Council the discretion to grant extensions or excep tions to the statutory deadlines for the various disclosures tha t Part V requires. Affidavits and the other disclosures required by th e statute are to be filed with the clerk of the County Council, who is to act under

the “direction and control” of the State Ethics Com mission and its Executive Director. GP § 5-838(a), (c); see also GP § 5-101(k)Gen. 55] 83

(defining “Ethics Commission” to mean the State Eth ics Commission). The clerk “may only” perform four tas ks: receive filings, maintain records, report violations, and p erform “other ministerial duties necessary to administer this par t.” GP § 5- 838(a). One of those “other ministerial duties” is putting the affidavits in the appropriate case files; another i s submitting a “summary report” that compiles the affidavits and d isclosures. GP § 5-838(c). The Council clerk’s duties thus resemb le those of a
District or circuit court clerk; neither has the au thority to extend deadlines set by rule or law. See, e.g., Mutual Ben. Soc. of Baltimore, Inc. v. Haywood , 257 Md. 538, 541 (1970) (court officials’ actions “must conform to the practices a s defined in the Maryland Rules of Practice and Procedure”); see also re Kaela C.

, 394 Md. 432, 471-72 (2006) (because filing deadline s in the Maryland Rules are “precise rubrics,” circuit court erred by adopting the master’s recommendations before the fi ve-day period for filing exceptions had expired).

We thus conclude that the Council may not proceed w ith an application when the applicant has not complied wit h Part V. Although the consequences of proceeding in the abse nce of affidavits will depend on the specific facts of the Council’s decision, we agree with the Ethics Commission that an applicant’s failure to file a timely affidavit would raise “ser ious questions” about the validity of the Council’s action. See Memorandum Re: Prince George’s County Zoning Ethics, Disclosure Pa rticipation
and Contributions Provisions—Md. Code Ann., General Provisions §§ 5-833 – 5-839, at 4 (Oct. 1, 2014). For example, in 2012, the Circuit Court for Prince George’s County struck down the portions of a 2009 sectional map amendment that related to properties for which affidavits were required but h ad not been filed. See Accokeek, Mattawoman, Piscataway Creeks Communi ties Council v. County Council of Prince George’s County , Maryland, sitting as the District Council , CAL Nos. 09-31402 and 09-32017, Memorandum and Order of Court (Pr. G. Cty. Cir. Ct. Sept. 7, 2012). The court ordered that those properties wer e to “retain their original zones prior to the [amendment].” Id . at 5, 8.

How to implement the statute so as to avoid such consequences will depend on factual circumstances t hat the District Council is better able to anticipate than we are. That said, several general approaches suggest themselves. It is our u nderstanding, for example, that the District Council already informs potential applicants to submit their affidavits at least 30 d ays prior to the scheduled hearing date at which they intend to test ify. See supra84 [100 Op. Att’y

n.3. The Council might also wish to reiterate, at the opening of testimony, that applicants will not be allowed to t estify unless they have filed a timely affidavit. And if an applicant ’s failure to file an affidavit becomes apparent only later in the procee ding, Accokeek would seem to suggest that the Council should remov e the applicant’s property from consideration and postpon e any future consideration of it until after a timely affidavit has been filed. We only suggest these; what approach suits a particula r set of circumstances is best addressed by the Council in a ccordance with the Ethics Commission’s guidance.

IV

Conclusion

In our opinion, the Prince George’s County District Council’s “consideration” of an application for purposes of P art V of the

Public Ethics Law occurs whenever the District Coun cil, as a body,
addresses the matter, whether or not the District C ouncil intends to act on it at that time. Further, the Council may n ot move forward with an application if an applicant has failed to f ile the necessary affidavit at least 30 calendar days before the matt er comes before the District Council. The Ethics Law does not gran t to either the District Council or the clerk of the County Council the discretion to change the filing deadline or excuse applicants and agents from

it.

Brian E. Frosh Attorney General of Maryland

Adam D. Snyder Chief Counsel Opinions

& Advice

* Jeffrey G. Middleton, a former intern in this off ice, assisted in the preparation of this opinion.