12 [92 Op. Att’y

PUBLIC ETHICS LAW

PUBLIC INFORMATION ACT – MUNICIPALITIES – BOWIE PUBLIC

ETHICS ORDINANCE IS CONSISTENT WITH STATE PUBLIC

ETHICS LAW – EXEMPTIONS FROM DISCLOSURE IN

ORDINANCE ARE CONSISTENT WITH PUBLIC INFORMATION

ACT

June 14, 2007

The Honorable G. Frederick Robinson

Mayor, City of Bowie

You have asked for our opinion concerning the application of

the Public Information Act (“PIA”) to certain records of the City

Ethics Commission of the City of Bowie (“City”). The materials

that accompanied your letter included several questions, which we

summarize and rephrase as follows: 

1. Are the provisions of the City Public Ethics Ordinance

concerning the disclosure of advisory opinions of the City Ethics

Commission and the disclosure of records related to complaints filed

with that commission consistent with the Maryland Public Ethics

Law?

2. To what extent is an advisory opinion of the City Ethics

Commission exempt from disclosure under the PIA?

3. To what extent are records related to a complaint filed

with the City Ethics Commission exempt from disclosure under the

PIA?

As explained more fully below, the answers to these questions

are as follows:

1. The part of the City ordinance concerning disclosure of

advisory opinions of the City Ethics Commission is virtually

identical to the model ethics law for local governments developed by

the State Ethics Commission pursuant to the Public Ethics Law.

Similarly, the part of the City ordinance concerning disclosure of

records relating to complaints filed with the City Ethics Commission
Gen. 12] 13

 is nearly identical to the State Ethics Commission’s model

ordinance. Accordingly, these provisions are consistent with the

Maryland Public Ethics Law.

2. The City Public Ethics Ordinance provides that the

advisory opinions of the City Ethics Commission are to be

“published and otherwise made available to the public” except that

the identity of the subject, i.e., the person who is the subject of the

advisory opinion, is to be deleted. While a municipal ordinance

cannot ordinarily create an exception to the general rule of disclosure

under the PIA, this particular provision derives from the model local

ordinance promulgated by the State Ethics Commission pursuant to

a statute that requires local governments to enact ethics laws similar

to the Maryland Public Ethics Law. The confidentiality provision in

the City ordinance is similar to a parallel confidentiality provision in

the law that governs advisory opinions of the State Ethics

Commission. The PIA defers to other State statutes that make

particular records or particular information confidential. Thus, the

identity of the subject of a City Ethics Commission advisory opinion

should not be disclosed in response to a PIA request.

3. The City Public Ethics Ordinance provides that all actions

of the City Ethics Commission on a complaint are to be treated

confidentially “until a final determination by the Commission.” This

provision is also based on the model ordinance developed by the

State Ethics Commission pursuant to State law. Accordingly,

records related to a complaint filed with the City Ethics Commission

may not be disclosed in response to a PIA request until the

Commission has made a final determination. It is also possible that

other exceptions in the PIA may apply to particular records related

to a complaint.

I

Background

Your request arose out of a controversy concerning the outside

employment of a member of the City Council and the disclosure of

records of the City Ethics Commission related to that controversy.

As we understand it, during 2006, two complaints were filed

with the City Ethics Commission alleging violations of the City’s

Public Ethics Ordinance by the Council Member and other

individuals. The Ethics Commission eventually determined that the
14 [92 Op. Att’y

 In compliance with our policy concerning opinion requests from 1

local governments, you included with your request a detailed legal

analysis by the City Attorney which we summarize in relevant part in the

text.

Council Member had a conflict of interest with respect to outside

employment. In late 2006, the Council Member requested an

advisory opinion from the City Ethics Commission concerning

prospective employment. After the Ethics Commission responded

to that request, the member submitted a second request in early 2007

seeking clarification of the first advisory opinion.

On March 2, 2007, the City Ethics Commission issued a

“partial” response to the Council Member’s second request for an

advisory opinion, apparently because it was going to be unable to

complete the full opinion by the time of a City Council meeting

scheduled for March 5, 2007. The Commission sent its partial

response to the Council Member who requested the opinion and also

distributed copies to the entire City Council, as well as various other

City officials, apparently because the Commission had concluded

that the Council Member should refrain from involvement in certain

matters on the agenda for the Council meeting. Thereafter, someone

supplied a copy of the partial opinion to a local newspaper. The City

Ethics Commission subsequently issued its complete advisory

opinion on March 15, 2007. 

The Council Member took issue with the release of the partial

advisory opinion. The City Ethics Commission expressed the view

that the partial advisory opinion was disclosable, except that the

identity of the subject of the opinion, i.e., the Council Member,

should have been redacted. That issue, and others raised by the

Council Member, were referred to the City Attorney. For example,

the Council Member also questioned whether records related to the

complaints filed with the City Ethics Commission would be

disclosable in response to PIA requests. 

The City Attorney agreed that the Commission’s partial

advisory opinion was disclosable, but expressed doubt that the

Council Member’s identity was confidential. The City Attorney 1

reasoned that, even if provisions of the City’s Public Ethics

Ordinance made that identity confidential, the City lacked authority

to pass an ordinance that would shield records from disclosure under

the PIA. With respect to records relating to complaints, the City

Attorney apparently reached a similar conclusion, but acknowledged
Gen. 12] 15

 We have summarized information set out in memoranda of the 2

City Attorney that were attached to your request. We have not been

provided with copies of the complaints, decisions of the City Ethics

Commission on those complaints, or the advisory opinions discussed in

those memoranda. However, the background information provided by the

City Attorney appears sufficient to respond to the questions addressed in

this opinion.

that the exception for investigatory records might apply to some of

those records for some period of time. 

The Council Member then requested that the City obtain an

opinion from this Office on various questions. 

2

II

Statutory Provisions

A. Public Information Act

The PIA allows the public a broad right of access to records in

the possession of State agencies and local governments. Annotated

Code of Maryland, State Government Article (“SG”), §10-611 et

seq. The statute includes a general right to inspect records, unless

one of the exceptions to the PIA precludes disclosure of records or

particular information. SG §10-613(a). The General Assembly has

directed that the statute be construed in favor of permitting

inspection of a public record, unless an unwarranted invasion of

personal privacy would result. SG §10-612(b). 

There are four categories of exceptions to the PIA’s general

rule of disclosure. First, the PIA defers to various types of law –

common law privileges, federal and State statutes, federal

regulations, court rules, court orders – that may preclude disclosure

of a record or particular information in a record. SG §10-615.

Second, the PIA itself requires that certain records and specified

categories of information be withheld from public inspection. SG

§§10-616 and 10-617. With respect to certain other types of records,

the PIA gives the custodian of the record discretion to deny access

to the record, or severable portions of the record, if the custodian

“believes that inspection ... by the applicant would be contrary to the

public interest.” SG §10-618. Because these various exceptions are

not mutually exclusive, more than one exception may apply to a
16 [92 Op. Att’y

 For certain issues involving legislative and judicial officials, the 3

law assigns administrative and enforcement functions to other entities.

See, e.g., SG §§15-102(b), 15-510 et seq.

 This mandate is also incorporated in the express powers of 4

municipalities. SG §15-802.

particular record. Office of the Attorney General v. Gallagher, 359

Md. 341, 753 A.2d 1036 (2000). Finally, the PIA includes a catchall provision that, in the event no exception applies and the custodian

of the record believes that its disclosure “would cause substantial

injury to the public interest,” the custodian may temporarily withhold

the record and seek a court order preventing disclosure. SG §10-

619. 

B. Ethics Laws

1. State Mandate for Local Ethics Laws

The Maryland Public Ethics Law, currently codified at SG §15-

101 et seq., sets forth ethical standards for State officials and

employees, contractors, and lobbyists. The State Ethics Commission

administers and enforces that law. To assist those subject to the law 3

in complying with its ethical standards, the statute includes a

procedure for individuals to obtain advisory opinions from the State

Ethics Commission on the application of the law to particular

circumstances. SG §15-301 et seq. With respect to enforcement of

those standards, the law authorizes the filing of complaints with the

Commission about alleged violations of the statute, which the

Commission is authorized to investigate and adjudicate. SG §15-401

et seq.

The Public Ethics Law also requires municipalities to enact

their own local ethics laws. SG §15-801 et seq.; see generally Seipp

v. Baltimore City Board of Elections, 377 Md. 362, 364-67, 833

A.2d 551 (2003). Pertinent to your inquiry, each municipal 4

corporation is to enact local laws governing conflicts of interest,

financial disclosure, and lobbying. SG §15-803. Local conflicts and

financial disclosure provisions are to be “similar” to the provisions

of the Public Ethics Law pertaining to the State government; local

lobbying provisions are to be “substantially similar.” SG §§15-804,

15-805(b), 15-806. However, local provisions can “be modified to
Gen. 12] 17

 Some municipalities have been granted partial or total 5

exemptions relating to local ethics laws. See COMAR 19A.04.03.03; see

also note following COMAR 19A.04.01.03.

the extent necessary to make the provisions relevant ... in the local

jurisdiction.” Id.5

The authority of a local government to administer and enforce

local ethics laws, including the creation of mechanisms to issue

advisory opinions and to adjudicate complaints, is implicit in the

legislative mandate to create those laws. 66 Opinions of the

Attorney General 197 (1981). To assist local governments in

carrying out these responsibilities, the State Ethics Commission is

charged with adopting model ethics provisions that may be used by

local government entities. SG §15-205(b). If a local government

fails to comply with the requirement to create a local ethics law, the

State Ethics Commission is authorized to bring suit in circuit court

to enforce that obligation. SG §15-808. 

The State Ethics Commission has adopted two model ethics

ordinances – a long version and a short version, known as Model A

and Model B respectively. COMAR 19A.04., Appendices A and B;

see also Seipp, 377 Md. at 366. In addition to substantive rules

concerning conflicts of interest, financial disclosure, and lobbying,

those models also provide for the creation of a local ethics

commission and authorize that commission to issue advisory

opinions and to investigate complaints of alleged violations. The

advisory opinion and complaint provisions appear to be based on

statutory provisions governing the issuance of advisory opinions and

the processing of complaints by the State Ethics Commission. SG

§§15-301 et seq., 15-401 et seq. 

2. City Public Ethics Ordinance

The City of Bowie has adopted a public ethics ordinance that

largely tracks Model A provided by the State Ethics Commission.

Bowie City Code, Article IV, §§2-66 through 2-73. The ordinance

creates the City Ethics Commission and includes provisions

concerning conflicts of interest, financial disclosure, and lobbying

adapted from the Model A with minor editing.

The Public Ethics Ordinance provides for the City Ethics

Commission to provide advisory opinions on the application of the

ethics ordinance. The relevant provision states:
18 [92 Op. Att’y

Any official or other person subject to the

provisions of this Article may request of the

Commission an advisory opinion concerning

the application of this Article. The

Commission shall respond promptly to these

requests, providing interpretations of this

Article based on the facts reasonably available

to it. Copies of these interpretations, with the

identity of the subject deleted, shall be

published and otherwise made available to the

public in accordance with any applicable State

or City of Bowie laws concerning public

records.

Article IV, §2-69(VI). This provision tracks almost verbatim the

language of Model A of the State Ethics Commission. See COMAR

19A.04, Appendix A, §4(f).

The Public Ethics Ordinance also contains a provision

concerning complaints about alleged violations of the ethics

ordinance:

Any person may file with the Commission

a complaint alleging a violation of any of the

provisions of this Article. These complaints

shall be written and under oath or affirmation

and shall be referred to the City Attorney or

other legal counsel, if appropriate, for

investigation and review. If after receiving an

investigative report, the Commission

determines there are insufficient facts upon

which to base a determination of violation, it

may dismiss the complaint. If there is a

reasonable basis for believing a violation has

occurred then the subject of the complaint

shall be afforded an opportunity for a hearing

conducted on the record. Any final

determination resulting from the hearing shall

include findings of fact and conclusions of

law. Upon a finding of a violation, the

Commission may take any enforcement action

provided for in accordance with Section 2-73

of this Article. After a complaint is filed and

until a final determination by the Commission,
Gen. 12] 19

 As a preliminary matter, we have considered whether our 6

consideration of these questions is consistent with our policies governing

Attorney General opinions.

As a matter of policy, when a question involves the interpretation of

a municipal ordinance we usually defer to the interpretation of the

municipal attorney. 88 Opinions of the Attorney General 103, 111-12 n.

12 (2003). In this case, the ordinance in question is virtually identical to

a model established in State law and the pertinent State law requires that

the ordinance be “similar” to a State statute. Moreover, the question

presented is not so much construction of the municipal ordinance but

whether its undisputed meaning is consistent with State law.

Second, this Office does not typically issue opinions concerning the

Public Ethics Law as it is our policy to defer to the interpretation of the

State Ethics Commission, which has been vested by law with the

obligation to construe that law. OAG Policies and Procedures, §2.0, II.C.

Again, the question here is not so much the construction of the Public

Ethics Law – the State Ethics Commission has clearly construed that law

to authorize local governments to adopt ethics ordinances that include

provisions for advisory opinions and the processing of ethics complaints

with a degree of confidentiality. The issue here is whether that

interpretation conflicts with the PIA. 

all actions regarding a complaint shall be

treated confidentially.

Article IV, §2-69(VII). Again, this provision tracks Model A. See

COMAR 19A.04, Appendix A, §4(g).

III

Analysis

As we understand it, the Council Member has raised questions

that turn on whether the Public Ethics Ordinance is consistent with

State law – specifically, the Public Ethics Law and the PIA. We

discuss first the relation of the ordinance to the Public Ethics Law

and, second, how two provisions of the ordinance relate to the PIA.6

A. Whether the City Ordinance is Consistent with the State

Public Ethics Law

As outlined above, it is apparent that the City adopted its

Public Ethics Ordinance to fulfill its obligations under the Maryland

Public Ethics Law. The provisions of that ordinance are derived
20 [92 Op. Att’y

from one of the model ordinances promulgated by the State Ethics

Commission. In particular, the provisions concerning disclosure of

information related to advisory opinions of the City Ethics

Commission or complaints filed with the City Ethics Commission

are virtually identical to the models provided by the State Ethics

Commission. Thus, those portions of the City’s Public Ethics

Ordinance are consistent with Maryland Public Ethics Law. 

B. Application of the PIA to Records of the City Ethics

Commission

1. Advisory Opinions

The City Attorney concluded that none of the mandatory

exemptions in the PIA for particular categories of records (SG §10-

616) or particular types of information (SG §10-617) applied to the

advisory opinions of the City Ethics Commission. He also noted that

those opinions are not encompassed within any of the categories of

records that may be withheld by a custodian if the custodian

determines that it is within the public interest to do so (SG §10-618).

We agree.

In our view, the City Attorney also correctly identified the key

question as whether disclosure of the identity of the individual who

is the subject of an advisory opinion is covered by the PIA’s

exemption for records governed by “other law” (SG §10-615). The

City Attorney determined that it is not. We respectfully disagree. 

SG §10-615 provides:

A custodian shall deny inspection of a

public record or any part of a public record if:

(1) by law, the public record is privileged

or confidential; or

(2) the inspection would be contrary to:

(i) a State statute;

(ii) a federal statute or a regulation

that is issued under the statute and has the

force of law;
Gen. 12] 21

 The identity of the subject of the opinion should, of course, be 7

redacted from other records related to the advisory opinion if requested

under the PIA. Cf. 64 Opinions of the Attorney General 162, 164 n.5

(1979). Such records may also be exempt from disclosure if other

exceptions to the PIA applied to particular records.

(iii) the rules adopted by the Court of

Appeals; or

(iv) an order of a court of record.

Municipal ordinances do not appear on the list of “other law”

set out in SG §10-615(2) that may trump the PIA’s general rule of

disclosure for public records. Thus, ordinarily a municipal

ordinance that purports to make records or information confidential

and to create an exception to the PIA not otherwise based on State

law is ineffective. In Police Patrol Security Systems, Inc. v. Prince

George’s County, 378 Md. 702, 838 A.2d 1191 (2003), the Court of

Appeals held that a county ordinance creating a registration system

for building alarm systems and purporting to protect those records

from public inspection could not preempt the PIA’s rule favoring

public access. The Court stated: “a local law or ordinance may not

make a particular public record or piece of public information

‘privileged or confidential’ for the purposes of the [PIA] unless one

of the sources of law listed in §10-615(2) does so or authorizes the

adoption of such.” 378 Md. at 715 (emphasis added). 

 Section 2-69(VI) of the City Public Ethics Ordinance

concerning advisory ethics opinions derives from a State statute. As

outlined above, that statute – the Public Ethics Law – requires

municipalities to adopt local ethics ordinances that are “similar” or

“substantially similar” to the State statute in a number of respects.

It also required the State Ethics Commission to devise model

ordinances for that purpose. In carrying out that charge, the State

Ethics Commission promulgated a model ordinance with

administrative provisions based on the corresponding provisions of

the Public Ethics Law. Among those provisions is the requirement

that the identity of the subject of an advisory opinion not be

disclosed when the substance of the opinion is made public. See SG

§ 15-303. Thus, in our opinion, disclosure of the identity of the

subject of an advisory opinion of the City Ethics Commission would

be “contrary to ... a State statute....”7
22 [92 Op. Att’y

 A local ordinance would not ordinarily supersede a mandatory 8

exception to disclosure in the PIA. Caffrey v. Dep’t of Liquor Control,

370 Md. 272, 303, 805 A.2d 268 (2002).

In a 1986 opinion, Attorney General Sachs dealt with a

converse situation. 71 Opinions of the Attorney General 282 (1986).

In that situation, a county ethics law, which was patterned after a

model promulgated by the State Ethics Commission, required certain

county officials and employees to file annual financial disclosure

statements. In accordance with the model ordinance, the county

ordinance allowed for public inspection of those records. However,

the county ethics commission raised the question whether the PIA’s

mandatory exemption for personal financial information (SG §10-

617(f)) trumped the ordinance and required the commission to

withhold the information from public inspection. Attorney General 8

Sachs traced the origin of the disclosure requirement to the Maryland

Public Ethics Law and noted that the requirements embodied in the

county’s ordinance and disclosure forms were “patterned on the

disclosure approaches discussed in the [State Ethics Commission’s]

regulations and reflect the State disclosure approach.” Id. at 283-85.

Accordingly, he concluded that the local ordinance based on the

Public Ethics Law prevailed over the otherwise mandatory exception

in the PIA. 

It might be argued that, while the Public Ethics Law requires

local governments to adopt certain ethics provisions, it does not

itself mandate that the local ordinance provide for confidentiality of

the identity of a requester of an opinion. However, in the Public

Ethics Law, the General Assembly also delegated to the State Ethics

Commission the task of devising model ordinances “similar” or

“substantially similar” to the State ethics provisions. The

administrative and enforcement provisions that the State Ethics

Commission has included in its model laws help ensure that the

substantive provisions of the local ethics law are implemented and

interpreted in a way that is “similar” or “substantially similar” to the

corresponding provisions of the State ethics law. See COMAR

19A.04.02.03. 

The Legislature has required the State Ethics Commission to

keep confidential the identity of the subject of a State ethics advisory

opinion. SG §15-303(b). The obvious purpose of that provision is

to encourage individuals to seek guidance from the State Ethics

Commission without necessarily exposing private affairs to public

view, while still allowing for publication of the substance and
Gen. 12] 23

 The phrase “person in interest” is defined generally as “a person 9

or governmental unit that is the subject of a public record ....” SG §10-

611(e).

 The provision governing complaints filed with the State Ethics 10

Commission arguably provides for greater confidentiality as the matter

remains confidential unless the State Ethics Commission finds a violation

or refers the matter for prosecution. The provision in the City Public

(continued...)

reasoning of the opinion for the benefit of the public at large. By

including such a provision in its model local ordinance, the State

Ethics Commission was simply incorporating policy judgments

already made by the General Assembly. The Commission’s decision

was undoubtedly a reasonable choice within its delegated discretion.

Indeed, it could be argued that, without the benefit of a

confidentiality provision to encourage the development of the local

law through advisory opinions, the local law might fall short of

“substantial similarity” to the Public Ethics Law mandated by the

General Assembly.

It might also be argued that even a local ordinance derived

from and closely related to a State statute is not “other law” that

creates an exception under SG §10-615, because the PIA is to be

“construed in favor of permitting inspection of a public record.” SG

§10-612(b). However, that rule of construction is qualified by the

phrase “unless an unwarranted invasion of privacy of a person in

interest would result.” Id. As noted above, the confidentiality

provision in question is designed to protect the privacy of the

requester of the opinion – “a person in interest.” Thus, the 9

presumption that a record is open to inspection does not have the

same force in this context as it may in others.

2. Records Relating to Complaints

The same analysis applies to disclosure of information related

to a complaint of an ethics law violation. Section 2-69(VII) of the

City Public Ethics Ordinance provides that all actions relating to a

complaint filed with the City Ethics Commission are to remain

confidential until the Commission has made a final determination of

the complaint. Like the provision concerning advisory opinions, this

provision derives from a State statute and provides for

confidentiality somewhat similar to that provided for complaints

processed by the State Ethics Commission. See SG §15-407. For 10
24 [92 Op. Att’y

 (...continued) 10

Ethics Ordinance does not turn on whether a violation is found or a

criminal referral is made, just whether the City Ethics Commission has

made a final determination.

 That exception encompasses records of investigation conducted

11

by a city attorney and an “investigatory file compiled for any ... law

enforcement, judicial, correctional, or prosecution purpose...” SG §10-

618(f)(1)(i)-(ii). Such records may be withheld from inspection under the

PIA if the custodian finds that disclosure would be “contrary to the public

interest.” SG §10-618(a). If the requester is a “person in interest,” the

custodian may only withhold the records if the custodian finds that

disclosure would cause at least one of seven enumerated harms. SG §10-

618(f)(2). 

the same reasons outlined in the previous section as to advisory

opinions, disclosure of records relating to a complaint prior to the

determination of the City Ethics Commission would be contrary to

provisions of the ordinance deriving from the same State statute.

Accordingly, such records would be exempt from disclosure under

SG §10-615(2).

Other exceptions in the PIA may also apply to particular

records related to a particular complaint. For example, as the City

Attorney indicated, the discretionary exception for investigatory

records in SG §10-618(f) may apply to records relating to

complaints. It is also possible that some of the Commission’s 11

records relating to complaints may fall within the discretionary

exception in SG §10-618(b) for pre-decisional records that reflect an

agency’s deliberative process. See Stromberg Metal Works, Inc. v.

University of Maryland, 382 Md. 151, 854 A.2d 1220 (2004). In

addition, depending on the nature of the particular complaint, there

may be other exceptions that could apply to particular records.

IV

Conclusion

For the reasons set forth above, our opinion is as follows:

1. The provisions of the City Public Ethics Ordinance

concerning disclosure of advisory opinions of the City Ethics

Commission and disclosure of records related to complaints filed
Gen. 12] 25

with that commission are consistent with Maryland Public Ethics

Law.

2. The identity of the subject of an advisory opinion of the

City Ethics Commission falls within SG §10-615(2), the PIA’s

exemption concerning records made confidential by other State laws.

3. Records related to a complaint filed with the City Ethics

Commission are exempt from disclosure under SG §10-615(2) of the

PIA until the Commission has made a final determination. It is

possible that other exceptions to the PIA’s general rule of disclosure

may apply to particular records related to a complaint.

Douglas F. Gansler

Attorney General

Robert N. McDonald

Chief Counsel

 Opinions and Advice