*1 JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED; APPEAL DISMISSING CASE REMANDED THAT TO COURT WITH INSTRUCTIONS TO VACATE THE JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY AND REMAND TO THIS THE CASE TO CIRCUIT COURT WITH DIRECTIONS TO THE VACATE DISTRICT COUNCIL’S DECISION AND ORDER THE DISTRICT COUNCIL TO DISMISS THE APPEAL ADMINISTRATIVE IT. BEFORE COSTS IN AND THIS COURT THE COURT OF AP- SPECIAL COUNTY, PEALS TO BE PAID BY PRINCE GEORGE’S MARYLAND.
v. ANTONETTI,
Robert J. Sr. 111, Sept. Term,
No. 2000. Appeals Maryland. Court of
Sept.
432 (J.
Randolph Sergent, Atty. Stuart Asst. Joseph Gen. Cur- ran, Jr., Gen., brief), Baltimore, Atty. on petitioner. Brennan, (Brent Manzi, C. Knight,
William Jr. M. Ahalt of LaPlaca, P.A., brief), Marlboro, Nussbaum & on Upper respondent. Sun, L. Alan Blumenberg, Community
Anne T.L. Law Center, Inc., Baltimore, support on brief of Amicus Curiae respondents. C.J., BELL, ELDRIDGE, RAKER,
Argued before WILNER, CATHELL, HARRELL, BATTAGLIA, JJ.
BATTAGLIA, Judge. us, appeal
In the now before we must consider whether Antonetti, Sr., Robert J. who served as the Administrator for George’s Board of County Supervisors Prince of Elections provisions Law, violated of the Public Ethics Md.Code Ann., (1984, § Gov’t seq. Repl.Vol.),1 State 15-101 et hiring, recruiting, promoting and supervising wife and in temporary employment minor children positions spanning a year Petitioner, six period George’s the Prince Coun ty Supervisors Board of of Elections. case, purposes analysis of our apply For under the facts we of this recodified version of the Ethics Law in Public effect in 1995. The State complaint against September Ethics Commission filed its on 25, 1995, alleging which occurred violations between 1988 and 1994. provisions comparable of the Public Ethics Law were enacted Ann.Code, originally ch. 1979 Md. Laws 513 and codified at Md. art. (1957, seq. Repl.Vol.). 40A 1-102 et The statute was subse- quently change by chapter amended without substantive 533 of the Laws, Maryland which transferred the Ethics Law Public to the Maryland State Government Article of the Code.
433 Facts I. (“Antonetti”), Antonetti, Sr. Respondent,
The Robert J. George’s County the Prince Administrator for served the (“the Board”) thirty of Supervisors of Elections Board 5, of the Elec- January duties starting on years, George’s County in have been Prince tions Administrator Description Perfor- county’s in the “Position formally defined as: mance Standards” the principal and advisor to of
Chief Executive Officer all regulates of which Feder- Supervisors Board of Elections Administra- al, County The Elections and elections. State planning, management, one of responsibility is primary tor’s and gener- administering and fiscal functions developing Supervisors of of of the Board al activities of office combining knowledge technology a and election Elections performed Work is skills. law with administrative policies independent judgment within established Federal, County law.... An and Board and dictates State and the work of all class evaluates employee in this counsels elects, training programs assigns and directs the employees, technical, tempo- and including clerical employees for Board rary personnel.2 Administrator, eighteenth year as
In Antonetti’s Elections children, family, including began and of his wife Board. positions Antonetti’s to work a number 1988, wife, Antonetti, Board in worked for the Mary Catherine signed clerk. Antonetti 1994 as election permitting Mrs. authorization form Antonet- supplemental pay Board and temporary employee estab- ti become a 1994, a lishing pay.3 In executed subse- her rate of copy Description “Position language 2. This was taken from a Antonetti, signed J. Sr. on Performance Standards” form Robert hearing September produced as an at the before exhibit Commission. Commission, Douglas, hearing Walter who 3. At the before the John county Investigations Office of served as auditor for the Audits quent authorizing form a pay increase for his wife. Mrs. paid per Antonetti was hour 1988 for a total of $7.00 $234.50, $514.50, per hour 1990 for total of $7.00 *6 per hour in 1994 for a total of $10.00 $530.00. son, Antonetti, (“Robert,
Antonetti’s eldest Robert J. Jr. Jr.”) began at working years age eleven of for Board in runner, books, a book carrying 1988 as supplies, other signed election materials to election judges. Antonetti a Robert, supplemental pay authorization for Jr. in 1988 at an pay 1990, In hourly rate of Antonetti executed another $6.25. supplemental pay increasing Robert, salary authorization Jr.’s runner, per Robert, to hour. As a book Jr. earned $7.00 in 1988 and in 1990. $84.38 $105.00 Robert, sixteen, In 1992 when Jr. was he a Voting became time, At Machine Technician. there were no other indi- age eighteen employed viduals under the of who were voting machine with capacity, technicians the Board. In this Robert, programmed, performed Jr. tested and maintenance on George’s County voting this, the Prince machines. For signed supplemental pay a Antonetti authorization form en- abling employment Voting his son’s Machine I Technician 1992, per Robert, at hour. In Jr. a total earned $8.00 $2,048.50 1993, for in position. his work this In Antonetti a supplemental pay promoted executed authorization which Robert, to position II, Jr. of Voting Machine Technician Robert, paid per Robert, which Jr. was hour.4 Jr. $10.00 George’s County, explained signs of Prince agency that when an head a supplemental pay agency authorization form allows the it to hire directly going through paperwork procedures someone without George's County. of the Office of Personnel of Prince He testified that supplemental
the Office pay Audits disfavored the use of the authori- forms. zation According provided to the information on Supplemental Pay authorizing employment Voting Authorization form his as a Machine I, following requirements Technician must be met in order to promotion Voting a receive to Machine Technician II: elections, satisfactory period, including a county After least two at may eligible promotion Voting incumbant be Techni- Machine upon Voting II cian recommendation of the Machine Consultant $4,275.00 1993, in 1994. $1,266.00 in position in this earned Robert, the Board as a his Jr. continued inII and 1996. Voting Machine Technician son, 1988, Paul Antonetti second John In Antonetti’s (“John”), age Board at the began employment with the brother, Robert, runner, He just book like his Jr. as a nine 1992, 1990, position during in this working continued autho- supplemental pay a Antonetti executed 1994 elections. hourly pay rate establishing form for in 1988 rization John occasions, executed subsequent On two $6.25. forms, increasing supplemental pay authorization additional in hour salary per per hour in 1990 and $10.00 John’s $7.00 performed year-old. as a for the he nine same tasks 1990, $159.50 earned total $105.00 John $84.38 1992, and in 1994. $150.00 *7 (“Ed- son, youngest Antonetti’s James Antonetti Edward ward”) in 1992 book for the Board began working as a runner in continued to do so 1994. Antonetti when he eleven and in pay a authorization Edward supplemental executed 1992, setting per his rate at hour. Edward earned pay $10.00 1992, in in 1994. a total $140.00 $150.00 1990, daughter, In Antonetti Antonetti’s Theresa Caroline (“Theresa”) began working age for the Board at the fifteen help summer in Board a total as office. She earned 1990, per $1,827.00 in pay at a hour rate $241.50 $7.00 $1,998.50 supple- in 1994. Antonetti executed the pay employment. forms mental authorization for Theresa’s signed for his all of time sheets wife through as their For of 1988 offspring supervisor. period 1994, $13,913.76 a total of family Antonetti’s members earned employees of Board. However, may the Elections Administrator. promotion no be consid- provid- completed training ered unless incumbent has the course of (emphasis original). equivalent, Corporation AVM or its ed Robert, promotion, participated time of not in two At the his Jr. had
county training only experience been elections or in course. His had a working Voting through I in as a Machine Technician 1992. 25, September On (“the the State Ethics Commission Commission”) issued a complaint against Antonetti, stating that in capacity his as Administrator for the Board of Supervi- sors of Elections of George’s County, Prince Antonetti was “a public official of subject the State to the conflict of interest and the financial provisions disclosure of the Ethics Law.” complaint The alleged Antonetti had violated the Public Ethics Law in that had: he
1. Participated in his official capacity the hiring of his
wife and for part children and temporary positions time with the Board of Supervisors of Elections of Prince George’s County 3-101(a) in violation of Sections and 3- Law; 104 of Ethics timely Failed to disclose employment of his wife and
dependent children on his annual financial disclosure statements for years calendar through 1994 in violation of Section 4-103 of the Ethics Law.5 alleged violations covered period of time from 1988 through 1994 and involved Antonetti’s recruitment of his family members to fill positions Board, with the enabling their employment by signing supplemental pay authorization forms, supervising them authorizing payment for their work, Robert, promoting Jr. to Voting II, posi- Technician tion for which he had not qualified, increasing their salaries requiring (cid:127)without additional performance work and for failing disclose the activities members on his annual financial disclosure statements required by Subtitle 6 of the Ethics Law.
A hearing was held before the Commission on January 1997 at which time the Commission made the following find- ings of fact: Respondent
1. is now and was at the times relevant to this complaint employed as Elections Administrator for George’s Prince County Supervisors Board of of Elec- 5. Complaint (1957, Citations in the are to Md. Ann.Code Art. 40A Repl.Vol.). (the Board). as the In he capacity this serves
tions to the principal and advisor Executive Officer Chief Federal, of in and all regulation Board administration County. position in The County and elections State admin- developing and management, planning, of is one agency, general and activities istering fiscal independent of duties performance and entails Board policies of the judgment within the established in- Federal, position law. County and The State relating responsibilities to direction volves substantial required supervision employees of Board County. out in the carry elections budget is development for final Though responsibility 2. County govern- ultimately Board and vested ment, advisory Respondent plays key we find that including recommending development, in budget role pay. and rates of types employees numbers and pro- substantially budget initial Board on the relies changing rates or posed Respondent, pay seldom Moreover, positions. it is from the numbers of clear Respondent’s key operational responsibili- record that managing program the Board’s and activities ties judgment filling involve substantial and discretion develop- in its positions budget authorized the Board process. Board ment Witnesses testified by Respondent, was “kept persons hired aware” hirings, given “notified” of or was a list recommenda- It us record tions. is clear to from the that wherever lay, legal hiring authority technical this is a citizen substantially board that on the efforts and recom- relies professional of its full-time staff administra- mendations decisions, that he fact func- hiring tor to make capacity. tions in this During period complaint to this time relevant
(1988 1994), Respondent capacity in his official involving actions many Elections Administrator took (Robert, Antonetti and his four spouse Mary children Edward, John), were, Jr., [sic], all of whom Teresa *9 matter, at most times involved in this minor children. These actions signatures involved on no than 11 fewer Supplemental Pay Authorizations, 4 Employment Eligi- Verifications, bility and 36 Time Sheets. Supple- The Pay mental key Authorizations were the hiring docu- ments, attesting to of individuals with the Board and authorizing agency compensate them for Eligibility services. The Verifications were legal essential reflecting documents finding by Respondent on agency behalf that individuals met citizenship requirements Federal eligible were to be employed by the Board. The Time key Sheets were the fiscal allowing documents County payroll authorities to issue checks compensating individuals for work per- formed as set forth in the document. testimony this matter was that these documents were essential for payment to they be made and that signed could only be Respondent. It was stated that Respon- without signature, dent’s an individual would not paid. be 4. As above, set forth in paragraph 3 these in- actions Respondent’s
volved the spouse and four minor children. All of these documents or implemented established employment relationship between these members Re- spondent’s Board, immediate and his agency, the and all were undertaken with anticipation that the individuals would compensation receive employ- this ment and would in fact receive economic benefits from the transaction. clearly The record shows that these individuals compensated were and did in fact benefit economically aas result of Respondent’s actions. 5. The record also indicates that Respondent on more than occasion,
one capacity his official recruited individuals who were his relatives or took actions designed to result in an employment relationship between them and the agency, which was intended to benefit them economical- ly. Testimony by Respondent’s spouse and at least one of his sons “my was that “my husband” or father” suggested their employment with the Board. Lists generated were and included in the record that include himby Respondent’s names recommended relatives’ occasion minutes of and on one employment, *10 by Respondent meeting Board a reflect recommendation daughter of his Tere- employment by for the the Board (then adult). sa [sic] in testimony and to Time According
6. Sheet documents Robert, record, son Jr. Respondent’s the now-adult to be recently employed 1996 continued as Summer Though a by voting the Board as machine technician. primarily supervision the record his direct reflects McAfee, in of the employee charge Sam another senior voting and machine maintenance Board’s warehouse program, responsible continues Respondent to be Sheets, no signature of his is son’s Time there formally any indication in the record of action taken to responsibility for his separate Respondent from ultimate son’s Board. employment activities the During period that is to com- 7. the time relevant this
plaint, George’s County of personnel the rules Prince apply prohibit employment particular did not to the jobs employ- at of individuals who related to issue were during in fact this agency, ees the and earlier periods Board individuals related various Board in employees employed positions were involving Respondent’s family similar to members. those employment persons of such was Testimony that upon pressing relied to meet at election times needs persons for competent paying recruit reliable and low jobs. but essential During years through Respondent 1988 1994 filed Ethics
financial disclosure statements with the State pursuant requirements of 6 Commission Subtitle 40A). (formerly Law 4 of Ethics Title Article statements, however, of These did not include disclosure spouse’s employment his or or the generally, children’s employment Board relationships of relatives above, form though set forth even and the it clearly instructions to indicate that disclosure is re- 440 (cid:127)
quired of any employment spouse dependent of a Subsequent children. amendments to forms have these been and Respondent’s submitted financial disclosure status now current and complete. is Antonetti,
The Commission found that as a official public serving Maryland Government, in an unit executive of State comply requirements must with “the limitations Law,” Ann.Code, Gov’t, seq. Ethics Md. 15-101 et State (1984, personnel and with Repl.Vol.)6, provisions George’s County, Md., through §§ Prince 16-117 16-120 Code ed.): (1995 further law Respondent’s conclude as
“[w]e matter relating actions to the of his relatives as set forth paragraphs through Findings of Fact by § participation constituted covered 15-501 Ethics *11 .... types Law each of the of transactions involved a dis- decision, finding, Respondent’s crete determination or types actions each of these of matters the final affected matters, decisions as to the involved his discretion and judgment, and in most was an situations essential action to (either reaching particular employee-relative a result for the establishing employment relationship, reflecting the a find- ing eligibility, or processing payment). a claim for More- over, all these actions related to that would determinations compensation directly that lead would accrue to the minor spouse economic benefit of children. Under circumstances, it the is our conclusion as a matter of law Respondent’s that partic- actions constituted nonministerial interest, ipation matters in which his relatives had an prohibited by § 15-501 of the Law.” The Commission determined that Antonetti did not violate Law, § the strictures of 15-506 of the Public Ethics Md.Code Ann., (1984,1995 Repl.Vol.), State Gov’t it since application,
“define[s] stricter standard for and that a only violation should be found where there is a clear show- 40A, (1957, Formerly seq. Repl. Md. Ann.Code art. et 1-101 Vol.) we position. abuse of While ing improper intentional suggest could that circumstances here the therefore believe section, concerns and given agency’s the a violation of this employees family long-standing practice other Board [of Board], we to exercise our working decline members in violation of this to find [Antonetti] enforcement discretion section of Law.” that Antonetti was re-
Additionally, the Commission found Law to disclose the § 15-607 the Public Ethics quired children on his annual financial spouse of his properly do so for calendar and failed disclosure statements through 1994.7 years May 1, Commission
Accordingly, on ordered and children at the Prince stop employing his wife any further George’s County Board Elections terminate actions, pay including signing supplemental autho- supervisory concerning any employ- continued rizations and time sheets8 part in relevant as follows: 7. Section 15-607 states 15-601(a) (a) general. required by § of this In statement that is —A disclosing the information and inter- subtitle shall contain schedules known, section, making specified if individual ests in this applicable period under this subtitle. statement for the (h) Family employed by shall include State.—The statement listing the a schedule members of immediate any capacity any employed were at individual who State during applicable period. time *12 (i) statement shall include a sched- Sources earned income.—The listing and of each: ule the name address (1) place employment of the or a member of of salaried individual family any during applicable at time the the individual’s immediate period; and (2) entity of which the or a member of the business individual owner, family partial from immediate was a sole or and individual’s income, family which member received earned at the individual any applicable period. during the time (1984, Repl.Vol.). § 15-607 This Md.Code Ann. State Gov’t. 40A, (1957, § formerly section was codified at Md. Ann.Code art. 4-103 Repl.Vol.). decision, Robert, When rendered its Jr. still held a 8. the Commission Board, Voting II was position Machine Technician with the son, Jr., Robert, ment his with the Board. The Commis- George’s sion recommended that the Board or Prince either County order that Antonetti endure “not 15 days less than further, without suspension pay, and the staff of direct appropriate pursuant Ethics Commission to take action to petition § 15-902 to the Circuit Court for of a imposition civil $7,500.” to regard improperly fine of With filed financial statements, to pay disclosure Antonetti ordered a late $1,000.00. filing officially repri- fee The Commission also Antonetti. manded judicial filed an action
Antonetti review of the Commis- George’s sion’s decision the Circuit Court for County Prince pursuant Maryland 7-201. The Court for Rule Circuit George’s County Prince vacated the Commission’s decision and remanded the case to Commission for a solely redeter- to an appropriate mination as sanction for Antonetti’s failure properly completed to file financial pur- disclosure statements Ann., suant to Md.Code State Gov’t. 15-607. The Court although had complied employ- found that with Code,9 provisions George’s ment County Prince he also Law, had a Public duty comply with the Ethics covering the employment issues facts related to the of this case. Pursuant record, however, to its review the Court Circuit exoner- following: ated Antonetti Commission, itself, expressly acknowledged has it was Elections, Antonetti, the Board not that made the hiring compensations final decisions. The record is not only clear that was the Board of Elections well aware that occasionally the Petitioner’s relatives were working for Board, approved but that Board hiring. of their Thus, Circuit Court participation found Antonetti’s regard payment to the hiring of his
permitted capacity, long respondent continue in this so no had regard supervisory employment. role with to his Md., George's (1995 County §§ through Prince 16-117 Code 16-120 ed.).
443 (b)(2) and 15- §in exceptions forth 15—501 the set fell within 501(c).10 finding with the Commission’s disagreed also
The Court authorizations supplemental pay that Antonetti’s execution of participation to unlawful family for members amounted 15-501(a) Court Ethics Law. The Circuit § Public under actions, character- which the Court reasoned that Antonetti’s were merely payroll,” insure ized as “mechanical act[s] only was the because Antonetti permissible under statute George’s County Office by the Prince individual authorized concluded sign payroll authorizations. The Court Finance to of im- indications shows no administrative record “[t]he The part of Antonetti. bias or on the proper influence” Commission’s ordered that the State Ethics Circuit Court 1, 1997, to the vacated and remanded May be Order a sanction proper for a determination of Commission disclo- completed financial properly failure Antonetti’s file participation exceptions regard with of interest conflicts as set public officials' matters of a § are as 15-501 of the Ethics Law follows: forth Public (a) (b) Exceptions. (1) of this section prohibitions of subsection The— apply participation if allowed: do not is (i) subject authority employees of the as to officials to the Commission; Commission, by regulation of the Ethics Ethics (ii) opinion advisory body; or (iii) by provision another of this subtitle. (2) participation by or prohibit does an official This section not of an or ministe- employee that is limited to the exercise administrative disposition respect to duty not or rial that does affect the decision the matter involved. (c) employee Participation notwithstanding or official conflict.—An participation sub- disqualified would from under who otherwise be (a) of this disclose the and circumstances section section shall nature act, conflict, may participate or if: (1) body quorum disqualification than a would leave with less acting; capable act; (2) disqualified employee required or is law to official or (3) employee only disqualified individual official is authorized to act. Ann., (1984, Repl.Vol.). These State Gov’t. 15-501 1995 Md.Code provisions 40A, formerly § 3-101 were at Md. art. codified Ann.Code (1957, Repl.Vol.). 1990 sure statements covering period from through *14 pursuant Ann., 15-607, § Md.Code State Gov’t. a violation from which appealed. Antonetti had not 19, 1999,
On March the State Ethics Commission noted an appeal from the Memorandum and Order of Court of the Circuit Court of George’s Prince In County. unreported decision Special Appeals the Court of affirmed the Circuit decision, Court agreeing, in part, with the Circuit Court’s reasoning, “[s]ome, stating all, but not of Antonetti’s actions that the Commission found violated the Ethics Laws within come the ambit of exception set forth in section 15- 501(c)(3).” that, The Court stated judge
the trial was correct when he reversed the decision of the Commission to the extent that punished the Commission violating Antonetti for the Ethics Laws signing his name relating documents to employment of members of his Thus, family. immediate the Commission’s order that Anto- netti any desist from performing ‘signature relating actions’ any continuing employment Robert, Jr., with the Board must be reversed. regard fact,
With to findings of the Court of Special Appeals that, stated
Antonetti was supervisor never the direct any his wife or Furthermore, his children. Antonetti did not de- have jure authority any to hire or fire Board employees. Only the Board itself had such authority. instances, In some however, he did power have de to hire temporary facto employees.
Petitioner, (“Commission”), State Ethics Commission filed a Petition for Writ of Certiorari to this on Court October 30, 2000, asking us to consider whether the Public Ethics Law prohibits public official from recruiting, recommending, hir- ing, promoting, placing or under his supervision the family, his immediate where such actions result in a direct monetary benefit to his household as a employ- result of their granted ment. We certiorari and now reverse the Court of Special Appeals and determine that Antonetti’s conduct with recruitment, supervising hiring, promoting, and regard to the violates employees of the Board members as Ann., set forth in Md.Code provisions interest conflicts of 15-501(a) 15-506. §§ Gov’t. State
II. of Review Standard Act, Procedures Md.Code Maryland Administrative (1984, Ann., seq. Repl.Vol.), sets Gov’t. 10-101 et State reviewing appellate of a court options forth the circuit agency. Section or order of an administrative final decision 10-222(h) specifies that: section, may: under this the court proceeding
In a (1) proceedings; for further remand the case *15 decision; (2) or affirm the final (3) right if any or the decision substantial modify reverse been because a petitioner may prejudiced have of the conclusion, finding, or decision: (i) unconstitutional; is
(ii) statutory jurisdiction of authority exceeds maker; final decision (iii) procedure; results from an unlawful (iv) law; of by any is affected other error (v) material, and sub- unsupported by competent, is as submit- light record stantial evidence entire ted; or
(vi) arbitrary capricious. is 10-222(h). Therefore, Ann., we must Md.Code State Gov’t decision was affected determine whether Commission’s concluding of law in that Antonetti violated the Public error v. Register County Law. Wills Baltimore Ethics See of (2001). Arrowsmith, 249, 364, 237, Md. 778 371 365 A.2d matter, reviewing decision In this “we reevaluate the Gigeous v. agency, of not the of the lower court.” decision 495-96, Institution, 481, 363 769 Correctional Md. Eastern (2001). 912, Thus, determining our role is A.2d 921 “limited if in the as a whole to is substantial record there evidence
446
support
agency’s findings
conclusions,”
and to ascer
tain whether the Commission’s decision
upon
was based
“an
erroneous conclusion of law.” United Parcel v. People’s
Counsel,
569, 577,
(1994).
226,
336 Md.
650 A.2d
230
In order
to find that there was substantial evidence on the
record
support
conclusions,
the Commission’s
we must determine that
record,
based on the
a reasonable mind could have
at
arrived
the same conclusions as the Commission. See Alviani v.
Dixon,
95, 108,
1234,
365 Md.
775
(2001);
A.2d
1241
Anderson
v. Department
187,
Public
213,
330
Safety,
Md.
623 A.2d
198,
(1993);
210
Bulluck v. Pelham Wood Apartments, 283
505, 512,
1119,
(1978).
Md.
390 A.2d
1123
requires
This
us to
ask whether it
reasonably
could
be said that
agency’s
may
conclusions
upon
be based
the facts set forth before the
agency, -without substituting our own judgment as to whether
agency’s
inferences were the best ones which could have
been made based on the record. See Supervisor
Assess
ments Montgomery County
Home,
v. Asbury Methodist
Inc.,
614, 625-26,
190,
313 Md.
(1988);
547 A.2d
195
Mayor &
Aldermen
v.
Annapolis
Co.,
Annapolis
284 Md.
Waterfront
383, 398,
1080, 1089 (1979);
396 A.2d
Bulluck v. Pelham Wood
Apartments,
513,
Where the findings of fact and inferences supported by are record, the evidence in the reviewing the court must defer to agency. See Board Physician of Banks, Quality Assurance 59, 68, v. 354 376, Md. 729 A.2d (1999). Therefore, 380-81 we “review agency’s decision light it; most favorable to ... agency’s decision is prima facie presumed valid, correct and and ... it is agency’s province to conflicting resolve evidence and to draw CBS, inferences from that evidence.” Inc. Comptroller, v. 319 687, 698, Md. 324, 575 A.2d 329 (1990)(quoting Ramsay,
447 834-35, A.2d 825, 490 302 Md. Co. v. Comptroller, Scarlett & omitted). (1985))(internal 1296, 1301 quotations law, of regard conclusions to the Commission’s With reviewing may courts substitute their argues that Antonetti That is agency. for that of the administrative judgment own reviewing give true, should it is also the case that courts but legal of conclusions degree deference to the some interpreta agency: agency’s administrative “an administrative adminis agency of statute which the application tion and by review ordinarily weight given should be considerable ters 381; Banks, 69, 729 see Md. at A.2d at ing courts.” 354 Commission, 681, 696- 343 Md. Maryland Racing Lussier v. (1996); Wittner, 697, 804, 314 v. McCullough 684 A.2d 811-812 (1989). Nevertheless, 602, 612, 881, owe 552 886 we Md. A.2d based of law. agency upon conclusions errors no deference Association, North, 355 Farms Inc. v. Belvoir Homeowners 267, 227, (1999); 259, Nursing Md. 734 A.2d 232 Catonsville 560, 569, Home, Loveman, v. Md. 709 A.2d Inc.
(1998).
III. Discussion argues in the em- Petitioner that Antonetti’s involvement ployment family any of his with the Board exceeds members duty” played “administrative a direct and substantial he management obtaining employment their and in the role employees of his supervision offspring, of his board. would have the old, ages at of nine and eleven and his years even the tender as a because process, wife be seen conundrum the election jobs. perform that no one was available to he asserts else lack of or unskilled over- perceived skilled labor cannot deci- inappropriateness whelm the Antonetti’s continuous employment. respect sions with to his relatives’ government performance Public confidence paramount importance. County officials is See Carroll Lennon, 49, 61, v. 703 A.2d Md.App. Ethics Commission 1338, 1344 (1998)(emphasizing investigate that the need to
448
sanction alleged ethical violations is “perhaps even more acute ... at local government level, government where the its greater another”).11 citizens have contact Legisla one recognition tive of this is § tenet in embodied 15-101 of the Law, Public Ethics explains which purpose its policy, stating as follows:
(a) Legislative findings. (1) Assembly The General of — Maryland, recognizing system that our representative government dependent is upon the people maintaining the highest trust in government their employees, officials and finds and declares that people have a right to be assured impartiality and independent judgment of those employees officials and will be maintained.
(2) It is evident that this confidence trust is eroded when the conduct of the subject State’s business is improper influence or appearance even the improper influence.
(b) Policy. purpose against of guarding improper —For influence, the Assembly General Maryland enacts this Pub- lic Ethics require Law to government certain officials and employees to disclose their financial affairs and to set minimum ethical standards for the conduct of State and local business.
(c) Liberal construction title. —The General Assembly title, intends that this except its provisions for criminal sanctions, liberally be construed to accomplish this purpose. Ann., Md.Code (1984, § State Gov’t. 15-101 Repl.Vol.).12 prohibition public officials’ involvement the em- ployment of their relatives is proscriptions embodied § 15-501 of the Public Ethics Law:
(a) In general. Except as provided otherwise in subsection — (c) section, of this employee official or may not partici- pate if: matter George's
11. The County Prince Supervisors Board of Election is a State agency, government rather than a local entity. Code, (1957, Formerly at Art. Repl.Vol.). 40A 1-102 *18 (1) relative of the employee qualifying or or a the official the has an in the matter and or interest employee official interest; knows of employee official or the (a) (b) of prohibitions of subsection Exceptions. (1)— if is apply participation not allowed: this section do (1) authority to employees subject the as officials Commission, of regulation the Ethics by Ethics the Commission;
(ii) or by advisory body; of an opinion (iii) by provision of this subtitle. another (2) by an prohibit participation This does not section of an or that is limited to the exercise employee official duty or ministerial that does not affect the administrative with to the involved. disposition respect or decision matter (c) or Participation notwithstanding conflict.—An official disqualified partic- from employee who otherwise would be (a) shall under of this section disclose ipation subsection conflict, may partici- nature and circumstances act, or pate if:
(1) body a than disqualification would leave less acting; quorum capable a
(2) required by is law employee official or disqualified act; or (3) or is the individ- employee only official disqualified to act. ual authorized Ann., purposes § of this Gov’t. 15-501.13 For
Md.Code State statute, spouse, is “a “qualifying parent, relative” defined as Code, provision formerly Art. at 40A 3-101 13. This codified (1957, Repl.Vol.), part which stated in relevant as follows: “(a) regulation Except permitted of the Commission as subject employees authority, opinion of an officials and to its title, advisory body, provisions employee this an official or or other matter, may any except in the of an participate not exercise duty disposi- ministerial which not affect the administrative or does matter, if, he, knowledge, respect to to his tion or decision with brother, child, sister,” or “employee” anyone while an is who is unit, Branch, an employed Legislative executive or the Government, Maryland Judicial Branch of excluding State may public those individuals who otherwise be classified or (ff). §§ 15-102(g) State officials. The statute defines an “interest” as:
(1) or legal equitable “Interest” means a economic interest wholly or or partly, jointly that is owned held or severally, directly indirectly, or or or not whether the economic inter- subject est to an is encumbrance condition.
(2) does not include: “Interest”
(i) custodian, capacity agent, interest held fiduciary, personal trustee, representative, or unless the *19 has an equitable subject matter; holder interest in the (ii) or deposit an interest a time demand a financial institution;
(iii) interest in policy, an insurance endowment policy, annuity or contract which an promises pay insurer a money of a lump periodically fixed amount sum or for specified or period; life or a (iv) or a part a common trust fund trust that forms of a or a pension profit-sharing plan that: 1. has more than 25 participants; and 2. is determined Internal Revenue Service § qualified § be a trust 401 or of under 501 the Internal Revenue Code. Ann., 15-102(t).14 §
Md.Code State Gov’t prohibits
The Public Ethics Law also employ State ees, Antonetti, “intentionally us[ing] such as from prestige of public position public office or or employ official’s private gain § ee’s or that of another.” 15-506. We have often premise stated that the basic of statutory interpretation is to child, brother, spouse, parent, minor or has an sister interest therein ...” change without Derived substantive from former Md. Ann.Code art. 40A, l-201(o)(1957, Repl.Vol.). 1990
451 legislature.” of the the intention effectuate “ascertain 434, Co., 419, 773 364 Md. Management Partner’s Tipton v. Inc. v. 488, (2001); Systems, Total Audio-Visual 497 A.2d 387, Labor, Md. Regulation, 360 Licensing & Department of (2000); 359 Md. 124, Riffe, v. 411-12, Langston 758 A.2d 137 omitted). (2000)(internal 389, 410, citations 396, 754 A.2d 396 applica scope and the legislative To intent ascertain must judice, we Law to the case sub bility of the Public Ethics statute. meaning of the words of the plain look at the first Motor v. Vehi Employees Federal Credit Union See Marriott 444-45, 455, Administration, 437, 458 697 A.2d cle 346 Md. (1997). ambig or does not contain obscure Where statute meaning,” simple language, expresses “and definite and uous statute in beyond plain language we not look need License legislative intent. Board order to understand the 354 Toye, v. County, Maryland Charles Commissioners for (1999); 407, & 116, 122, Chesapeake 410 729 A.2d see Md. v. Finance Maryland Co. Director Telephone Potomac Baltimore, 567, Md. 578- 343 Mayor City Council (1996). 79, 512, Ultimately, construe 517 we must 683 A.2d which is that we a result the words the statute such avoid unreasonable, absurd, with common illogical, inconsistent 803, Liston, Inc. v. 349 Md. Edgewater See Liquors, sense. 125, State, 811, 1301, (1998); Md. A.2d Frost v. 336 709 1304 106, (1994), 380, 137, 112 v. 328 Md. Tracey Tracey, A.2d 590, (1992). A.2d *20 determining In whether the Commission’s decision violating Law was Antonetti for the Public Ethics sanction evidence, factu we must consider the supported substantial statute alleged al for each of violations basis Antonetti’s instanc statutory to these application language and the that not violate the es of misconduct. Antonetti asserts he did recruiting, in through Public Ethics Law involvement supervising, of his and children. hiring, promoting spouse public from prohibits
The Public Ethics Law officials or public either the official participating matters where have in the public qualifying official’s relatives an interest 452 Ann.,
matter. Md.Code § State Gov’t. 15-501. The statute precludes also public using officials from positions their “private gain, benefit their own or that of another.” Md.Code Ann., Here, § State Gov’t. 15-506. we are confronted with a situation where children, Antonetti and his wife and minor who are all “qualifying 102(f), relatives” by § as defined 15— had a direct interest in generated the income employ their ment Although with the Board. the Public Ethics Law does not define what constitutes “participation” in a matter purposes of section, the conflicts of interest Webster’s New (4th College ed.1999) World Dictionary at 1050 defines the verb “participate” as “to part have take a or share with (in etc.).” activity, others some enterprise, We have stated analysis “the language statute’s must be undertak en from a commonsensical technical, rather than a perspective, always seeking to giving avoid the statute a interpre strained tation ...” Langston v. Riffe, Md. 396, 445-46, 359 754 A.2d State, 389, Bane v. 416 (2000)(quoting 305, 309, 327 Md. 313, (1992)). A.2d 314-15 In the absence of any additional statutory language or legislative history indicating a contrary intent, we phrase ascribe “participate in” as used 15-501(a) § ordinary its and commonly meaning. understood State, Metheny See v. 576, 618, 1088, 359 Md. 755 A.2d (2000)(using dictionary to conjunction define the “while” in interpreting 27A, Ann. v. 413(d)(10)); Md.Code art. Riemer Plan, Inc., Columbia Medical 222, 237, Md. 747 A.2d 685 (2000)(using dictionaries to define the copayment terms Ann., deductible Md.Code Health-Gen. interpreting 19-710(b) 701(f), (o)). §§ 19 - that, The record shows although the Board fill needed to temporary positions work during every election, neither the Board nor Antonetti in his capacity as Elections Administrator actively advertised for positions. these only positions which the Board advertised were for election judges. It is record, however, clear from the that in establishing the origi- nal Board, relationship with the Antonetti asked his to fill positions. the vacant *21 signed at least that Antonetti The record also discloses forms, employ- authorization four supplemental pay eleven forms, thirty-six time sheets eligibility ment verification as acting capacity in his family of his members while on behalf pay autho- signing supplemental a The act Administrator. directly and agencies people form allows to hire rization County. George’s Personnel of Prince bypass the Office of motion on only that the Board voted record indicates relatives, Theresa, once to occasion hire one Antonetti’s one pre-election a clerk. age majority, had as she attained the occasions, of the testimony of the members all other On hearing at and the Board members family Antonetti recruited the Commission showed Antonetti either before Board, him they work for or asked family his members to Robert, Jr. directly. example, For testified positions follows: question. you final How did decide
Commission: One technician, voting a how did that come about? become Robert, Well, job I a summer at the looking Jr.: was something I do that —I want to
time. wanted to didn’t burgers my doing, and I had flip like all friends were up always and I been prior been warehouse before guys doing with machines interested in what the were get I if I my job and asked father could somehow be job, opening was an and I considered for a there accepted applied history. I was and the rest is Robert, position. for this Jr. never had a formal interview legally obligated family
Antonetti not to hire his mem- Board, therefore, employees improperly of the bers he his position with the Board to exercise discretion used argues §§ so in 15-501 and 15-506. do violation personnel of the also rela- that other Board office had their positions employed temporary during with the Board tives period in question. Although the time the record disclosed personnel George’s County Board of that other the Prince may employed had Elections have temporary part-time employees, person- Board as the full-time in employment positions they not where nel Board were *22 authority had people, the to hire let procure employ- alone to event, for their any ment own relatives. In that would not contrast, by Antonetti, excuse violations In Antonetti. as agency head who had hiring authority been vested with to use supplemental pay authorization forms to sanction employ- the temporary employees ment of with the Board and so abused position by his hiring spouse his and children. so,
Although attempts he to do successfully Antonetti cannot claim that he was uninvolved the final phase hiring of his spouse temporary and children for the employment. Antonet- ti argues hiring that members of his family immediate by conducted the Board of conjunction Elections in with the Office of Personnel of George’s County. such, Prince As Antonetti would have this Court believe that he disclosed the employment family of his members to the Board in keeping 15-501(c) exception with the forth in set which allows a public participate official to where there would otherwise be a conflict of long interest so as “the nature and circumstances of the conflict” public are disclosed and the official partici- must pate law, required by by virtue of the fact that they are the only circumstance, individuals authorized to act in the or in to prevent order a loss of quorum where needed. There is no on suggest evidence the record to that the Office of Personnel George’s of Prince County any had knowledge that Antonetti’s family county members were on payroll the until February 1995, when the George’s County Prince Government of Office Audits and Investigations employment reviewed the practices of Board.15 system Antonetti’s using supplemental of pay authorization forms allowed him employees to hire any without Thus, review of Office Personnel. Antonetti used the authority granted to him of position virtue as Elections Administrator to circumvent the Office of through Personnel audit, 15. As a result George’s County of this the Prince Government Investigations Office of Audits and issued a memorandum to Antonetti informing provisions him George's that the County of the Prince Code addressing hiring of apply members did not in this situation positions because “none of the that were County’s filled are in the Code, George’s classified service.” County See Prince Subtitle 16. supplemental pay authorization forms his extensive use family. on behalf of his employment procure knowledge by the lack of The record discloses similar spouse Antonetti’s Board status hearing Jacqueline At Commission C. before the children. White, during Board who President served as secre- period inquiry previously had served relevant Board, reviewing the minutes of tary to the testified that after any find indication Board as far back as 1979 she could not hiring had of Antonetti’s approved of where the Board Board testified While other members of the wife children. in and around the they Antonetti’s wife and children saw *23 father, storage at with knowl- office and warehouse their the people, that these edge presence knowledge of their mere old, years on including as nine were the young children In addition to county payroll vastly are two different matters. of requirement to the satisfy Antonetti’s failure disclosure 501(c), no which could § the record contains evidence 15— engaged the that Antonetti this self- support argument law, on he serving requirement based a of the because conduct Board, quorum sought preserve to a on the or because he only act. individual authorized to In to attempt place scope himself within the 501(b)(2), § concerning the non- exceptions forth set 15— per applicability provisions of the conflicts of interest to the which or minis purely formance duties are “administrative terial,” argues purely acted in a ministerial that he sign capacity only person he was authorized to because hearing At supplemental pay authorization forms. before 1997, 21, following dialogue on January the Commission place during took cross-examination: Antonetti’s true, testimony today, your It’s on we it’s Q: based heard sheets, practice all to practice sign your to the time it’s sign supplemental payroll? all responsibility, yes. A: Ministerial Q: you sign I me ask if all of them? asked—let A: Yes.
Q: duty? You believe that to ministerial be A: Correct. them,
Q: you If sign happen? refused to what would Nobody A: would be paid.
Q: major It seems to impact. me that’s a understand, A: far as I it As is ministerial while I’m there. only signature by I’m the Payroll. authorized broad opinion Antonetti’s declaration that he in a acted capacity actions, regard signatory ministerial to his how- ever, to fails that his demonstrate conduct falls within the exception participation 15-501(c) as set forth in of the Public Ethics Law. explaining In exercising the distinctions dis between functions, performing purely cretion and ministerial this Court has that: stated
The term “discretion” denotes freedom according to act judgment one’s in the absence of a and fast hard rule. officials, applied public When power “discretion” is the upon conferred them to act officially law under certain circumstances according to the own judg- dictates their conscience, ment and judgment and uncontrolled conscience others. 617, 623, Anne County,
Ashburn v. Arundel 306 Md. 510 A.2d 1078, Hawkins, (1986)(quoting v. Schneider 179 Md. *24 25, 861, (1940)). Thus, 16 A.2d 864 a person engages in non- or discretionary ministerial functions when he she or exercises judgment in process the of establishing maintaining em ployment relationships family for their with the Director, Board. v. Bovey See Executive Health Claims Office, 640, 649, 333, Arbitration 292 Md. 441 A.2d 338 (1982)(holding that director where the needed to exercise “his judgment sound and discretion” the director’s actions not were ministerial and thus a writ of mandamus could not be executed “to him to compel any procedure”).16 follow stated published advisory The State Ethics opinions Commission issues Law, concerning application the may of the Public Ethics which be to forms sign authorized these else had been If someone Board, it could by the then following approval employment mere- signatory may action have been that Antonetti’s be said 1802, Federa- v. Local American ly See Freeman ministerial. 67, State, County Municipal Employees Council tion of (1990). 684, 696, AFL-CIO, 569 A.2d 318 Md. at the rubber-stamping forms merely not these authority granted the party. another He used behest of him his Board Administrator position by virtue payment his relatives employment authorize from Thus, drawn the facts and inferences to be Board. that Antonetti conclusion support Commission’s the record Ann., Gov’t, §§ 15-501 the tenets Md.Code State violated and 15-506. transgression failing regard
With to Antonetti’s employed that members of his immediate were disclose forms, we Board on annual financial disclosure findings the Commission’s supports that the record conclude that Antonetti the clear of fact and conclusion of law violated Gov’t, Ann., of disclosure forth in Md.Code State mandate set Board, position § In his Administrator for the 15-607. to file oath annual required by Antonetti was law under Md. financial disclosure statements with Commission. upon by subject provisions See relied those to the of the statute. Ann., long § held State Gov’t. 15-301. The Commission has Md.Code Ann.Code, predecessors, § § art. that 15-502 and 15-506 and their Md. (1957, Repl.Vol.), if §§ 3-104 violated 40A 3-101 and “would be urge hiring or if employees or officials took action to of relatives they position employment positions bene- their to advance the or used employees in participation State fits of relatives” and would restrict evaluation, "hiring, firing, personnel-related matters that or other 92-5, Opinion the listed relatives.” No. State Ethics Commis- involve sion, 85-8, 84-8, 81-37, 19A.01.02; Opinion Nos. C.O.M.A.R. see 81-2. 81-37, Advisory Opinion explained In No. Commission judg- engages "his in non-ministerial actions when he uses individual ment, professional expertise Similarly, the Commis- and discretion.” recommendation, decision, "acting through approval, sion includes rendering relative participation of advice” as in the of a 3-101). Opin- (formerly § prohibited 15-501 which would be under No. 81-37. ion *25 Ann., 15-601, Code §§ State Gov’t. 15-602. The statements were to include Antonetti’s interests in real property, in corporations and partnerships, in interests business entities conducting State, gifts, business with the employment by or in interest doing business entities State, business with the indebtedness to doing State, entities business family employed State, by the and sources of in- earned Ann., come. Md.Code § State Gov’t. 15-607. The relevant subsection of the statute that: states
The statement shall a listing include schedule the name and address of each:
(1) place of employment salaried of the individual or a member the individual’s family any immediate at time during applicable period; (2) entity business of which the individual or a member of the individual’s family immediate was a sole or partial owner, and from which the individual or family member income, received earned any at during time applicable period. Ann., 15-607(i).
Md.Code § State Gov’t. Antonetti conceded his error completing the financial disclosure forms in testimony his before the Commission. Although he filed additional forms in 1995 to correct his omissions, earlier he nevertheless violated language the clear Ann., of Md.Code State Gov’t. 15-607 which requires disclo- sure all for his family immediate members. As public official, entrusted with upholding high standards of moral and ethical conduct in engendering support trust of community served, which he Antonetti transcend- ed mere omitting offensiveness in financial disclosure state- oath, ments filed under to disclose very employment he procured for family. his
We hold that 15-501, §§ violated 15-506 and 15- 607 of the Public Ethics through Law his participation recruiting, hiring, promoting supervising mem- employees Board, bers as by failing properly file *26 law, statements, required disclosure financial completed through 1994. from APPEALS OF SPECIAL THE COURT OF
JUDGMENT COURT REVERSED; THAT TO REMANDED CASE OF THE JUDGMENT TO VACATE INSTRUCTIONS WITH COUN- PRINCE GEORGE’S FOR COURT THE CIRCUIT THE CIRCUIT TO THE CASE REMAND AND TO TY THE AFFIRM ORDER TO DIRECTIONS WITH COURT IN COSTS ETHICS COMMISSION. THE STATE OF APPEALS SPECIAL THE COURT OF AND THIS COURT BY PAID RESPONDENT. BE TO HARRELL, dissenting. Judge, for the reasons Special Appeals, The
I dissent. Court affirming the in correct unreported opinion, its stated opinion was Because of the Circuit Court. judgment of its portions here the relevant re-publish I unreported, my own or two an embellishment reasoning. I shall add in this dissent. later as follows: Appeals reasoned Special
The Court the Commis “Some, all, actions that not of Antonetti’s but within the ambit Ethics Laws come found violated the sion 15-501(c)(3).1 in section exception set forth the Ethics that Antonetti violated found “The Commission (1) by signing numerous ways, viz: in two distinct Laws of his relatives hiring payment or relating to documents hiring, (2) indirectly responsible hiring, being or of his relatives. provides: exception
1. That employee or (c) notwithstanding official conflict.—An Participation participation under sub- disqualified from be who otherwise would (a) nature and circumstances shall disclose the of this section section act, conflict, participate if: may only (3) employee individual disqualified is official or to act. authorized Signature “A. on Documents fact, “In findings its the Commission found: During period “3. of time relevant to this com- (1988 1994), plaint capacity [Antonetti] his official Elections Administrator took many actions involving his spouse Mary (Robert, Jr., his four children Theresa, Edward, John), were, all of whom at most matter, times involved this minor children. These actions signatures involved on no fewer than 11 Supple- Authorizations, Pay Employment mental Eligibility Ver- ifications, and 36 Time Sheets. Supplemental Pay *27 key documents, Authorizations hiring were the attesting employment the of individuals with the Board and authorizing agency compensate the them for services. Eligibility Verifications were legal essential docu- reflecting ments a finding by Respondent the on behalf of agency that the individuals citizenship met Federal re- quirements eligible and were employed by be the Board. key The Time Sheets were the fiscal documents allowing County payroll the authorities to issue checks compensating individuals for performed work as set forth testimony the document. The in this matter was that these documents payment were essential for to be made they and that signed only could be by It [Antonetti]. stated that signature, without [Antonetti’s] an individual paid. would not be
“6. According to Time Sheet testimony documents and record, in the Robert, [Antonetti’s] now-adult son Jr. recently continued as as Summer 1996 to employed by be the Board a voting Though machine technician. the record supervision reflects his direct primarily by Sam McAfee, employee another senior in charge of the Board’s and voting warehouse machine program, maintenance responsible [Antonetti] continues to be signature for Sheets, his son’s Time and there is no indication in the of any record action formally separate taken to [Antonet- employment his son’s responsibility for from ultimate ti] Board. activities for the finding a that included
“The conclusions law Board’s documents constitut- employment various signing of the Laws. In of the Ethics of section 15-501 ed violation conclusion, did not discuss reaching that Commission 15-501(c)(3) in section set forth provisions whether that, to us insofar actions. It is clear shielded Antonetti’s Ethics violated the found the Commission other various time sheets and signing Laws documents, must be reversed. the Commission’s decision Board, it was uncontroverted hearing
“In the before sign only authorized to employee that Antonetti was find- And own employment documents. the Commission’s this when found that docu- ings they demonstrated “these authorizations, employment (supplemental pay verifi- ments sheets) cations, payment for to be and essential time were only could be they signed [Antonetti].” made ... Moreover, before Board was that the the evidence clear working family members were Board knew that Antonetti’s Board, being paid, that his members were for that, Board, signed time Supervisor as the he necessary for them hired sheets documents to be other Thus, to be the “nature and paid. their salaries *28 conflict of the was disclosed. circumstances” trial was correct he the deci- judge “The when reversed to that the sion Commission the extent Commission Ethics violating by signing Antonetti for Laws punished to relating employment his name documents to of members Thus, family. his order that immediate the Commission’s any “signature actions” performing Antonetti desist from Robert, Jr., relating continuing with any employment the Board must be reversed. Board
“B. Recommendation to the that Family Hired Members Be fact, “In found: findings its the Commission “5. The record also indicates [Antonetti] on more occasion, than one capacity!,] his official recruited individuals who were his relatives or took actions de- signed employment to result an relationship between agency, them and the which was intended to benefit them economically. Testimony by spouse and at [Antonetti’s] least one of his sons “my was that husband” “my suggested employment father” their Board. Lists generated were and included in the record that include relatives’ names by [Antonetti’s] as recommended him employment, and on one occasion minutes of the meeting Board reflect recommendation [Antonetti] employment by for the daughter the Board of his Teresa (then adult). an
“In its found, conclusions of law the Commission inter alia, that relating Antonetti’s actions family 5, set forth in Paragraph violated the face, Ethics Laws. On its that conclusion wrong of law is insofar as it found that “on one occasion minutes of the Board meeting reflect a recommendation [Antonetti] employment by (then the Board of his daughter [Teresa] adult).” It was anot violation of May the Ethics Laws in of 1994 for Antonetti to recommend the employment by the Board of daughter. Ann.Code, his adult 407, See Md. art. (1993 § 3-101 Repl.Vol). 1, 1994, Effective October howev- er, the law was changed prohibit participation by officials in matters related to adult Mary- children. See 2 Laws of land ch. 19. from Teresa,
“Aside the conclusion as to the Commission also found that it awas violation of the Ethics Laws to recommend to the Board that members be em- ployed. That clearly conduct is protected by not excep- 15-501(c)(3). tion set forth in section employ- Insofar as ment concerned, recommendations are obviously only was not “the individual authorized to act.”
[*] 4« 4< [*] 4: 4: contends, alternative, “Antonetti that his recom- *29 mendation^) to the Board that his members be hired to Laws due of the Ethics violation Board was not a by the 15-501(b)(2) (“This section exception set forth in section employee by an or official prohibit participation not does or ministeri- of administrative limited to the that is exercise with decision disposition duty al that does not affect involved.”) applicable. is the matter respect to he made recommenda- agree with Antonetti. When “We book jobs positions temporary to fill clerical tions and/or loaders,7 Antonetti was "7 to the was no that recommended There evidence son, Robert, Jr., voting as a anyone be hired else
Board or that technician. machine then be- duty. question an fulfilling administrative the decision Did affect comes: Antonetti’s recommendations record regard, In this family? of his to hire members explain why did To that it not. unambiguous was clear and so, example this an is useful. is War,
“If, a four-star height at the of the Vietnam as a social job his son for a general recommended marine House, if, after that recommendation at the White aide received, that coveted general’s son was selected inferred, general’s position, legitimately, it can be that the there hiring decision because recommendations affected applicants. obviously eager qualified would be a host of his son general if the same recommended But marine infantry platoon in Vietnam and foot soldier serve general’s position, son was selected if the recommendation, likelihood, not general’s in all would have scarcity applicants— decision of the affected the because Likewise, in judice, otherwise. the case sub eager or scarcity for the applicants is clear that was a record there testimony jobs According at issue. to the uncontradicted Commission, presented extremely it was difficult to the get part-time jobs to take for which Antonetti made people fact, members, many to that Board Due recommendations. Board, their own recruited together employees period positions during to fill the hectic family elections. immediately preceding primary general *30 464 Commission, no presented
There was evidence to the nor any from legitimately fact which an inference could be drawn, that Antonetti members would not have been they if had for a applied job hired with the Board and Thus, had Antonetti refused to make a recommendation. clearly it the Commission was erroneous when found that hiring Antonetti’s actions affected the Board’s decisions.8 hiring regarding the [Commission] relevant statement Paragraph in Report recommendations was set forth its "Final of and Order” follows: view, may authority In that our the Board have had final decisions, budget hiring compensation and for and does not alter the Respondent professional employee fact that is the senior for a citizen substantially professional expertise experi- board that relies on and Moreover, types ence. each involved transactions a discrete of of decision, finding, Respondent’s or and determination actions in each of matters, types judgment, these involved his discretion and and in most of reaching particular an situations was essential action a result (either employee-relative establishing employment relationship, re- flecting finding eligibility, processing payment). a of a claim for Moreover, these actions all related to that determinations would lead to compensation directly that would accrue to the economic benefit of his circumstances, spouse or minor children. it is Under our conclu- Respondent’s sion as a matter of law that actions constituted nonminis- interest, participation terial in which matters in his relatives had an prohibited by 15-501 of the Law.” (Some omitted; emphasis original). internal footnotes in embellishment,
By way Finding I note that in # 2 Fact in Report its Final of 1 May Order the State Ethics (Commission) Commission ultimately stated that is “[i]t clear to us from record legal that wherever the hiring technical (the authority this lay, Supervisors [ Board of Elections for George’s County) Prince is citizen ] board relies sub- stantially on the efforts and of its recommendations full-time professional decisions, staff hiring administrator to make that he in fact functions in this capacity.” my Based on Court, review of the record extract I submitted to this con- context, clude that such a finding, placed its relevant is unsupported by material, competent, and substantial evidence and, therefore, Rather, is arbitrary capricious. the record that, 1988-94, extract a Board period reveals over the relevant knowingly participated equal on at least with Respon- terms dent pursuing policy identifying institutional workers, includ- retaining seasonal/temporary election reliable regard, In the Board own families. this ing from within their to, Administrator, of, Antonetti. no or slave its captive White, as a member Jacqueline appointed Democratic C. 1995,2 President in described Board in 1993 and chosen its Board find and approaches employed the various seasonal, help: temporary hire election Usually [just busy to an we’re so prior election] that time at meeting, Mr. really having not a formal but that we’re are, gets an always people lets us know who phone. meeting will approval, mostly by Sometimes he *31 list, get, they I can say people a this is the submit us it, a okay They at it’s with them. don’t make say look most formal motion on of them. election, example,
Leading up to the 1994 one Antonetti proposed with lists of the seasonal workers supplied the Board hired, by job indicating who had organized to be recom- non-partisan position. for The lists for person mended each a positions indicated after each the clerical and book loaders symbol equated with that prospective employee’s name a by a Democratic person having been recommended either member, Antonetti, Republican Board or sole Board mem- the ber, family Mr. were on list Deegan. Antonetti’s members the hired, they clearly for to be positions under which were by identified as Antonetti. recommended however, explained, proposed As Ms. not all seasonal White year in in writing were memorialized hires each election scheduled, meeting advance: “if wasn’t a we would there normal, usually by phone.”3 twice-monthly do it The Board’s time,” meeting due schedule was abandoned “around election secretary previously employed was as a from 2. Ms. White at Board appointment 1979 until her as a member. Majority accurately, during period *32 through policy change,4 the Board’s 1995 had who recom- family successfully mended for seasonal and other case, however, In employment. Board no that save mentioned in supra, n. was approval any employee the seasonal referenced the Board’s minutes. Reio, Shirley
Ms. E. supervising Republican the Board’s Registrar,5 Moreover, testimony. corroborated Ms. White’s change, prohibiting employees 4. The the relatives of Board members or (other warehouse), proposed from Board than in the was Board, by adopted by primarily response Antonetti and the to critical newspapers local complaints "disgrun- articles in occasioned from following closely-contested tled" former Board members 1994 state- wide election. employed Ms. Reio at the Board from 1964 to 1994. Pay- County’s acknowledged practice, approved a she Finance, prepared whereby its she roll Division of Office behalf, employee’s employee’s on seasonal signed, sake of did as a convenience and for the time sheets. She this “had to come staff no reason efficiency because seasonal office, County not run around the into could we ” had her signatures.... recommended obtaining these She through employment, Board grandchildren daughter for member, Deegan. Republican Board Mr. and the ... people of the hired Respondent [were] testified that “all through consent through Board motion or Board either ” kind, Respondent to work in the Board.... approved some Board.” independently that he did not “act of the testified last Board Regarding process employed and the he seasonal, staff, hiring temporary particular- election minute labor, it as ly and warehouse Antonetti described clerical follows: newspa-
Q. any in the you didn’t make advertisements So any ads? pers, members, through
A. It was of board recommendations officials, employed, people who were elected they positions if judges or election would ask had some available.
Q. the rec- you As the administrator would have solicited
ommendations? I I board know A. don’t solicit recommendations. let the if there positions that we had available and then these forth, I some so the board were names and would tell looking position, for the people here’s some are them, it. you they would want to hire would confirm hiring process to a de- The closest contradiction above the Commission was scribed evidence before “testimony” A. former stipulated Wheatley, of Ms. Judith 1987-95, President and Democratic Board member between alia, testified, unaware who would have inter that she was until children had hired the 1994 election Antonetti’s been *33 Board County’s personnel audit was made and that the Also, approved hiring. had not their according to stipula- tion, would acknowledged she have daughter her son and time, had Board employees during been voting the same as a machine technician and a recruiter for Democratic election judges, respectively, but that no Board minutes reflected the approval Board’s hiring. of their It was stipulated also that daughter her had been fired as a Board employee at some point during Wheatley’s Ms. tenure as President. stipu- lation, however, to specify exactly failed who fired Ms. Wheat- ley’s daughter and under what circumstances and when. Wheatley’s testimony
Because Ms. a stipu- received as counsel, lation of there was no opportunity for the Commission to draw testimonial inferences based on a demeanor-based credibility thus, most, assessment of Wheatley; at only deriva- tive inferences were parts available be drawn from such of stipulation as were not perceived otherwise to be discred- ited. See Anderson v. Dep’t 187, Public Safety, 330 Md. 210-218, 198, (1993) 623 A.2d 209-213 and Dep’t Health & Shrieves, Mental v. Hygiene 283, 297-304, 100 Md.App. (1994), A.2d 906-909 and authorities discussed therein. portions stipulation Because the regarding the asserted approval lack of Board hiring the Antonetti children for the appear election plainly contrary most the live testimonial and documentary evidence received the Com- mission, a credibility demeanor-based assessment would be only means which an administrative fact-finder ration- ally could choose to Wheatley’s stipulated believe statement over contrary. the evidence to the straightforward Given the and sweeping stipulated statements, nature no reason- able or supplemental derivative inferences are As a available. credibility demeanor-based assessment possible, was not it strikes me as untenable to accept that stipulation as to Wheatley’s testimony relevant satisfy could the substantial evidence prerequisite any of the Board’s fact-finding Accordingly, conclusions. Wheatley’s stipulation does not en- view, gage, my the deferential standard of ordinarily review by a reviewing accorded court to an agency’s administrative fact-finding.
469 Wheatley’s testimony figure could the stipulated Even if fact-finding analysis the Commission’s substantial evidence hiring to the conclusions, solely pertained her statements 1994 Her for the election. of Antonetti’s credited, establishing fairly statements, fall far short of if findings or conclusions debatable basis the Commission’s To that 1988, hirings. or to the 1990 1992 election relative extent, minimum, was error. the Commission’s decision at a arguably that could be construed only other evidence that, effect, Antonetti led support finding the Commission’s metaphysical nose seasonal regarding Board around its the inherently vague and con- hiring patently was the decisions member, Mr. testimony of lone Board Republican flicted Deegan during on Board Deegan. Charles Mr. served C. charges were period the 1988-94 with which the Commission’s seasonal, acknowledging broadly that Although concerned. “usually” Board temporary election workers were hired after approved hirings, pro- of the he members were solicited and did Antonetti’s wife fessed to be or not “recall” that “unaware” sons, Edward, employed by Paul and two of John were for the His of Mrs. the Board 1994 election. awareness employment arose he saw at the Board’s Antonetti’s when her in 1994.6 stated day offices on election He he became aware employment of John Paul’s and Edward’s at the Board ware- newspaper house he read a article about the when Yet, family working for Board. was he admitted he aware son, Jr., Robert, employment of Antonetti’s at the Theresa, daughter, pre-elec- as a warehouse Antonetti’s clerk, making tion the latter he the motion to because recalled May meeting. hire her as reflected in the Board’s 23 See also supra. Deegan responded negatively n. Mr. to his questions Commission’s awareness counsel’s hiring Edward Paul for for the election John however, state, 1990 or 1992 He did not elections. approved Board hiring. had not their referring Presumably he was of 1994. the General Election Regarding process of hiring seasonal, staff, part-time Deegan responded that “practice of putting the names of [such hires] the [Board’s] minutes is of vintage” recent followed and “[s]ometimes” “other it times wasn’t.” Mr. Deegan acknowledged that he had recommended his niece for clerk, a pre-election specifically discussing it with Antonetti. She was hired. As to hiring, his niece’s Deegan could find no approval record of of that action in the minutes, Board’s though he “thought” had there been such a record. *35 equivocal
The highly idiosyncratic nature and quality of Mr. Deegan’s unawareness or lack of recall as to 1994, of Mrs. in 1994, Edward in 1992 and and John 1990, 1992, 1994, Paul in and does not support the Commis- Board, sion’s sweeping finding unit, that as a “relies substantially ... on its ... administrator hiring make decisions, and that he in fact functions in capacity.” this The Commission’s presumed expertise in interpreting the State Ethics Law empower does not it to translate the slender reed of this testimony into finding it made. The sum of Mr. Deegan’s testimony may, blush, that at first seem contradicto- ry White, Reio, to that of Ms. Ms. Respondent’s, and does not rise above a scintilla of in my analysis evidence of whether the Commission’s findings supported are on this record.
It fairly may be said that hiring the Board’s practices for seasonal, part-time personnel election between 1988 and 1994 far management fell short of best practices. That largely now process abandoned may also fairly be overly criticized as informal and fraught nepotism; however, Antonetti’s role in perpetuation of internally these well-understood pro- cesses policies cannot be reasonably construed to be of violative the State Ethics provisions Law that the Commis- found, sion excepting only the failure to proper make disclo- sures in required (§ 15-507). annual financial reports As violations, those non-disclosure Antonetti offered no contest before the Commission and the Court of Special Appeals. Court judgment affirm the I would Accordingly, Special Appeals.7 judge- Moreover, its have substituted majority appears to I note
7. concluding Respondent in Ethics Commission of the State ment for that of Law # 5 In Ethics Law. Conclusion § the Public violated 15-506 of 1997, “de- May Commission Report Order of 1 in its Final Respondent in discretion to find enforcement [its] exercise clinefd] to supplied). The Circuit (Emphasis of the Law.” violation of this section § In its Memoran- application of 15-506. Court did not consider Court, correctly February the court filed and Order of dum violating § ... 15- guilty Respondent not "was found noted that Commission, Appeals Special appealing to the Court 506.” The Court, among it found § the statutes not include 15-506 in this did and, own logically, seek review its did not Respondent violation of applicability § violate 15-506. finding Respondent did not Petitioner and to both Respondent been a non-issue has 15-506 to Report Order Final Respondent the Commission’s since 3. As the notes between 1988 and appears this record have memorialized the Board from to hiring part-time personnel meetings only its in the written minutes of once, Elliott, Antonetti, May on 23 1994 for Theresa Monica William Hensley. Bohlayer, Sean pressing needing to the tasks to accomplished be for the Frequent telephone weekly imminent election. calls and writ- ten became reports the modalities Board communication and action. hiring process, testified, election The seasonal Ms. White usually triggered by advising Board members fill to Board positions. the need certain member, frequently propose hiring friend, would a acquaintance. process goals thought This achieved good be whole, i.e., reliable, as a the Board the obtention of and the staff, of previously retention experienced, saving thus training Board time and resources and recruitment that, positions process, important while the electoral were relatively paying. short duration and low Even within that however, process, Ms. recalled that White been “[t]here ha[d] a couple past” rejected when Board [of times] persons recommended Antonetti because person[s] “someone knew the they [on Board] and knew very weren’t reliable.” Ms. her adult son temporarily White recommended be hired warehouse, work at Board’s and he was. She elaborat- personal knowledge ed from number of examples other members, stretching Board back as far as and running