Sec. 13b.01.03.02. Definitions

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

(1) “Commission” means the Maryland Higher Education Commission.

(2) “Disqualified person” means any person who was in a position to exercise substantial influence over the affairs of the institution any time during the 5 years prior to the date of a transaction, and includes, but is not limited to:

(a) Current and former officers, directors, trustees, and key employees;

(b) Family members of current and former officers, directors, trustees, and key employees; and

(c) An entity in which a current or former officer, director, trustee, key employee, or family member thereof has at least 35 percent ownership.

(3) “Excess benefit” means any economic benefit received by a disqualified person from an institution that exceeds the consideration, including services, given to the institution by the disqualified person.

(4) “Excess benefit transaction” means any transaction in which an excess benefit is provided by the institution, directly or indirectly, to or for the use of any disqualified person.

(5) “Family member” means a spouse, sibling, half-sibling, child, grandchild, great-grandchild, parent, grandparent, great-grandparent, or spouse of any relation listed in this definition.

(6) “For-profit institution of higher education” has the meaning stated in Education Article, §10-101, Annotated Code of Maryland.

(7) “Institution” means an institution of higher education and its affiliate organizations.

(8) “IRS” means the United States Internal Revenue Service.

(9) “Key employee” means an employee of an institution, other than an officer, director, or trustee, who meets all three of the following tests, applied in the following order:

(a) $150,000 Test. The employee receives reportable compensation from the institution and all related institutions in excess of $150,000 for the calendar year ending with or within the institution’s tax year.

(b) Responsibility Test. The employee:

(i) Has responsibilities, powers, or influence over the institution as a whole, similar to those of officers, directors, or trustees;

(ii) Manages a discrete segment or activity of the institution that represents 10 percent or more of the activities, assets, income, or expenses of the institution, as compared to the institution as a whole; or

(iii) Has or shares authority to control or determine 10 percent or more of the institution’s capital expenditures, operating budget, or compensation for employees.

(c) Top 20 Test. The employee meets the $150,000 Test and the Responsibility Test and is one of the 20 employees with the highest reportable compensation from the institution and related institutions for the calendar year ending with or within the institution’s tax year.

(10) “Net earnings” means gross revenue less expenses.

(11) “Person” means an individual, corporation, or other entity.

(12) “Private inurement” means financial arrangements that primarily benefit private interests instead of the institution’s charitable interests, which include but are not limited to:

(a) A compensation arrangement or contract where there is no upper limit or is based on factors extrinsic to performance at, and benefit to, the institution;

(b) Use of gross revenue or net earnings to provide goods and services to an individual or entity that primarily benefits private interests instead of the institution’s charitable interests; or

(c) Payment in excess of the fair market value in exchange for goods or services that primarily benefit private interests instead of the institution’s charitable interests.

(13) “Private nonprofit institution of higher education” has the meaning stated in Education Article, §10-101, Annotated Code of Maryland.

(14) “Prohibited tax shelter transaction” has the meaning stated in 26 U.S.C. §4965(e)(1).

(15) Reportable Incident.

(a) “Reportable incident” has the meaning stated in Education Article, §10-101, Annotated Code of Maryland.

(b) “Reportable incident” includes the following activities:

(i) Providing a grant or other assistance to a disqualified person;

(ii) Having receivables from or payables to a disqualified person; or

(iii) Being a party to a business transaction with a disqualified person.

(16) “Secretary” means the Secretary of Higher Education.