Chapter 02. Criteria for Certification
Regulation .01 Substantive Requirements for Certification.LinkCopy Citation
A.
A trust that complies with the appropriate procedural requirements of COMAR 19A.06.03, and that meets the substantive requirements set forth in Regulations .02—.04 of this chapter, may be certified by the Commission as a blind trust for purposes of COMAR 19A.06.01.03.
B.
A blind trust arrangement by an official or employee will be considered for certification only if in connection with the submission the official or employee certifies that:
(1)
All of the official's or employee's holdings at the time the trust is established will be subject to the trust unless otherwise specifically approved by the Commission; and
(2)
No new holdings will be purchased directly by the official or employee except as expressly approved by the Commission.
Regulation .02 Nature of Assets.LinkCopy Citation
A.
A trust shall be certified only if the holdings transferred to it by the official or employee meet the requirements of §B of this regulation.
B.
A trust shall be:
(1)
Well diversified.
(a)
In evaluating the diversification of a portfolio the Commission shall consider whether the assets are sufficiently diversified to support a conclusion of blindness and lack of appearance of conflict.
(b)
In making the determination the Commission shall consider the:
(i)
Number of holdings;
(ii)
Share of the portfolio in any particular holding or industry;
(iii)
Value of each holding; and
(iv)
Percentage of ownership in the entity the official's or employee's holding represents.
(c)
The Commission may not approve a portfolio for establishment of a blind trust whose assets exceed $350,000, when more than 20 percent of the trust value is held in a single security, or more than 30 percent is held in a single industry or economic sector, unless these particular holdings present no conflict of interest when the trust is created. The Commission may consider a lesser degree of diversification when smaller trusts make these percentages impractical and when the total circumstances warrant a finding of diversification.
(2)
Readily marketable. In evaluating the marketability of holdings the Commission shall consider the presence of a market for the holdings, including whether:
(a)
They are traded on a public exchange;
(b)
The prices are quoted in papers of general circulation;
(c)
The quantity of the holdings does not limit the possibility of sale; and
(d)
The records of the holding for the entity show a ready market for the securities.
(3)
Not a holding in an entity where the official or employee has as his primary State function regulatory or procurement duties relating to the entity, unless, due to the size of the holdings and the nature of the official's or employee's duties, a conflict of interest or appearance of conflict is unlikely.
(4)
Free of any restriction or encumbrance that would interfere with the trustee's ability to manage and control them as required by Regulation .04 of this chapter.
Regulation .03 Qualification of the Trustee.LinkCopy Citation
A.
For a trust to qualify for certification the trustee shall be independent of and unassociated with the official or employee in both reality and appearance.
B.
The trustee:
(1)
Shall be a financial institution or an ongoing organization that is generally actively involved in trust management activities;
(2)
May not have managerial employees or persons having duties relating to the trust that are partners, joint venturers, employee/consultants or otherwise engaged in business ventures with any interested party;
(3)
May not have an employee that is a spouse, parent, child, brother, or sister of any interested party;
(4)
May not have any current accounts, loans, or other financial transactions with any interested party;
(5)
During the period of the existence of the trust, may not make any institutional political contributions to the official or employee, or have any managerial employee or individual having duties relating to the trust actively involved with any political campaign of any interested party;
(6)
May not be subject in any significant way to the ongoing regulatory or contractual authority or control of the official or employee, if the official's or employee's ongoing functions are regulatory or contractual; and
(7)
Shall comply, initially and as a continuing matter, with the procedural requirements set forth in COMAR 19A.06.03.
Regulation .04 Features of the Trust.LinkCopy Citation
A.
To be certified as a blind trust pursuant to this subtitle, a trust shall be established by a trust instrument containing the provisions in §§B—H of this regulation.
B.
The trustee shall have absolute discretion and authority to manage and control the trust assets, including the authority to purchase and sell trust holdings.
C.
An interested party may not have the ability to learn of the assets of the trust or the actions of the trustee, and may not receive reports on the assets or income except those necessary (without identifying any particular asset or holding) for filing personal income tax returns.
D.
Tax returns of the trust shall be prepared and filed by the trustee and may not be available to any interested party.
E.
There may not be direct or indirect communication between the trustee and any interested party except directions regarding the disposition of income or general decisions regarding the approach of the trust as a short-term income or long-term growth approach. Any permitted communications shall be in writing, with copies provided to the Commission.
F.
An interested party may not seek to obtain information regarding the trust or its assets.
G.
Securities may not be purchased that would result in the holdings in any entity exceeding 20 percent of the total trust assets, or any industry or economic sector exceeding 30 percent of the total trust assets, except when the particular holdings present no conflict of interest under General Provisions Article, Title 5, Annotated Code of Maryland.
H.
The trust instrument shall provide for termination of the trust at the earliest of the following:
(1)
Upon termination of the official's or employee's State service;
(2)
In case of the official's or employee's death or incompetence;
(3)
Upon revocation of trust certification by the Commission pursuant to COMAR 19A.06.03.04; or
(4)
For cause at the request of the official or employee and with the prior approval of the Commission.
Chapter annotations
Authority: General Provisions Article, §§5-206, 5-501, 5-502, and 5-608, Annotated Code of Maryland
History: Effective date: May 27, 1991 (18:10 Md. R. 1118)
History: Regulation .01 amended effective April 7, 1997 (24:7 Md. R. 554)
History: Regulation .04H amended effective January 16, 2017 (44:1 Md. R. 12)
History: Regulation .05 adopted effective April 7, 1997 (24:7 Md. R. 554)
History: Regulation .05 repealed effective January 16, 2017 (44:1 Md. R. 12)