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Ethics Rules and Transition Teams: Maryland Weighs In

A recent advisory letter by the Maryland State Ethics Commission should remind those asked to serve on transition teams to be aware of the various state laws that might be triggered by their service.  In the advisory letter, written to a government contractor, the State Ethics Commission concluded that members of the Maryland Governor-Elect’s Transition Team are not “public officials” subject to the requirements imposed by the Maryland Public Ethics Law.

The Commission’s determination makes sense given Maryland law.  The most nearly-relevant provision in the Maryland definition of “public officials” generally applies to individuals in Maryland “executive units.”  Md. Code, Gen. Prov., § 5-103(b).   An “executive unit” is “a department, agency, commission, board, council, or other body of State government that. . . is established by law.”  Id. § 5-101.   Although Maryland law provides for staff, Md. Code, State Gov’t § 3-206, and office space, id. § 3-207, for the Governor-Elect’s transition, the Transition Team itself is not “established by law.”

Although members of the Transition Team are not subject to the Public Ethics Law, other restrictions still apply.  As the Ethics Commission’s letter alludes to, Transition Team members are still subject to the rule that an “individual who assists an executive unit in the drafting of specifications, an invitation for bids, a request for proposals for a procurement, or the selection or award made in response to an invitation for bids or request for proposals, or a person that employs the individual, may not … submit a bid or proposal for that procurement” or “assist or represent another person, directly or indirectly, who is submitting a bid or proposal for that procurement.”  Md. Code, Gen. Prov., § 5-508.  And the Maryland Governor-Elect is considered a “state official” even before inauguration, Md. Code, Gen. Prov., § 5-101(ll)(1), so Maryland’s gift rules apply.

Other states have different laws, of course.  Depending on the state, service on a transition team could implicate ethics codes, lobbying regulations, and government contracting restrictions.  Those asked to volunteer their time to assist state officials in transitions to elected office would be well-advised to understand how state laws might affect them.

© 2020 Covington & Burling LLPNational Law Review, Volume IV, Number 353

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Covington’s Election and Political Law practice is one of the oldest in the Nation.  In addition to our high-profile election law litigation and Federal Election Commission enforcement practice, we advise numerous Fortune 50 and Fortune 500 corporations, trade associations, financial institutions, political party committees, PACs, candidates, lobbying firms, and high net-worth individuals concerning compliance with the increasingly complex array of laws governing the political process.  These include federal and state campaign finance, lobbying disclosure, and government...

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