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Montgomery County Ethics Commission
Text of Advisory Opinions - 1997

Advisory Opinion 1997-1

Montgomery County Ethics Commission Advisory Opinion

January 22, 1997

Presently before the Commission is a November 11, 1996, request from a member of the Montgomery County Board of Appeals for an advisory opinion concerning the application of Chapter 19A (County Ethics Law) and §2-109 (Board of Appeals Code of Ethics) to political campaign activities the member had engaged in and intends to continue pursuing.

For the reasons explained below, it is the Commission’s opinion that:

1. The solicitation of campaign contributions by a member of the Board of Appeals does not constitute a per se violation of the County ethics law or the Board of Appeals Code of Ethics.

2. Although the solicitation of campaign contributions does not per se violate the County ethics law or Board of Appeals Code of Ethics, a Board member’s political campaign conduct is not totally insulated from regulation under the County ethics law and the Board’s Code of Ethics. Accordingly, the Board member should avoid engaging in acts that could lead a reasonable person to conclude that:

 

 

A. the member is using the prestige of the member’s office for personal gain or the gain of another in violation of Section 19A-14(a). In this regard the Board member should avoid using the member’s County title in connection with any campaign activity; or

B. the member is coercing or discriminating against another for the purpose of interfering with that person’s freedom to engage in political activity in violation of Sections 19A-14(e) and 2-109. In this regard the Board member should not target for solicitation parties, witnesses, or attorneys who appear before the Board of Appeals.

3. The Board member’s suggestions regarding future participation in political activities are appropriate and the member is encouraged to follow them; these are:

    • not allowing the member’s name to be the sole name used on fund raising or partisan communications.
    • not allowing the member’s name and address to be used for receiving campaign contributions.
    • notifying the Ethics Commission of each fund raising event with which the member’s name is associated for inclusion in a file open to the public.
    • disclosing on the record the nature of any relationship with a person who appears before the Board as a party, witness, or attorney.

FACTS

The relevant facts are as follows. Since 1970, the Board member has been actively involved in political campaigns for Democratic candidates for various offices and for the Democratic Party on the local, State, and national levels. The member has served as a paid campaign staff person, a fund raising consultant, party official, and a volunteer. The member presently serves a party official at a national level. The member has hosted many fund raising and other political events in the member’s home and served on the finance and steering committees of numerous campaigns.

The specific event that led to the Board member’s request for an opinion grew out of an October 22, 1996, fund raising event which the member co-chaired. The event was publicized through an invitation mailed to over 2,200 people, largely in Montgomery County.

 

Governor Parris Glendening Senator Paul Sarbanes Senator Barbara Mikulski
Invite you to join us for
A Very Special Evening with a Very Special Person
GEORGE STEPHANOPOULOS
at a
Fundraising Reception to Benefit Campaign ‘96
The Montgomery County Democratic Coordinated Campaign
Tuesday, October 22, 1996
7:00-8:30 p.m.
Home of Ben and Joyce Schlesinger
6801 Broxburn Drive—Bethesda, Maryland
RSVP by enclosed card [Board member] and Joan Stern Co-Chairs $500 Patron
or call 301-977-0015 $250 Host
or [Board member’s home telephone number] $125 Guest

Checks were to be made payable to "Campaign ‘96" and mailed to the Board member’s home address. The Board member’s request for advice indicates that the beneficiaries of the funds raised were the Montgomery and Maryland Democratic Parties and their activities in Campaign ‘96. The RSVP card stated, "Your contribution will be used in connection with federal elections and is subject to the limitations and prohibitions of the Federal Election Campaign Act. Contributions are not tax deductible for federal income tax purposes. Paid for by Campaign ‘96—a project of the Maryland Democratic Party."

The Board member’s request for advice states in part:

The names and addresses of those to whom this flyer was mailed were contained on several different lists, and the actual mailing was done in several places under independent supervision. The lists used included ones: (1) compiled by individuals based on contributions to past campaigns in Montgomery County, (2) maintained by the MCDCC [Montgomery County Democratic Central Committee] of major givers to the party, (3) developed the National Jewish Democratic Council, and (4) developed by the Women’s Leadership Forum of the DNC [Democratic National Committee]. A separate mailing was sent by the Coordinated Campaign of the Maryland Democratic Party to a list that it had developed. Most of the Montgomery County–based mailing—and all of the Maryland state mailing—was handled by others without my participation or presence. Follow up calls were made by a number of people, including several who participated in "phone banks" organized by the MCDCC. I did not participate in those follow up activities.

I handwrote notes on the flyer to a number of personal and political friends and followed up a number of those notes with telephone calls in the week prior to the event. To my knowledge, none of these personal notes or telephone calls was directed to anyone who has appeared before the Board or has a pending case before the Board.

Approximately 175 people attended the event. The Commission assumes, for the purposes of this advice, that a number of individuals, including attorneys, who appear or may appear before the Board of Appeals received the invitation. There is no indication whether any of these individuals attended the event. The Commission has no basis for assuming that the Board member treated any person differently in subsequent Board actions because the person attended the fundraiser, made a contribution, or failed to contribute.

DISCUSSION

The Commission has identified two sections of the Montgomery County Code that appear relevant to the Board Member’s conduct under this set of facts, namely §§19A-16 and 2-109.

I. Montgomery County Ethics Law

Section 19A-16 of the County ethics law provides in relevant part:

(a) A public employee must not solicit a gift to the employee or another person or organization:

(1) from any business or person who:

(A) is registered or must register as a lobbyist;

(B) does business with the County agency with which the public employee is affiliated; or

(C) is, or owns or operates a business that is, regulated by the County agency with which the public employee is affiliated;

(2) during official work hours, or at a County agency, or from any other public employee who is supervised directly or indirectly by the public employee;

(3) while wearing all or part of an official uniform of a County agency, or while otherwise identifiable as a public employee;

(4) with the intent of affecting or offering to affect any action by a County agency.

Section 19A-4(h) defines the term "gift" as:

Gift means the transfer of anything of economic value, regardless of form, without an exchange of consideration of at least equal value. Gift does not include a transfer regulated by state or federal law governing political campaigns or elections. (Emphasis added).

Given this definition, the first inquiry should be whether the transfers involved in the October 22nd fund raiser are "regulated by State law governing political campaigns or elections."

Maryland Code (1957, 1993 Repl. Vol., 1996 Supp.), Article 33 ("Election Code") contains detailed provisions concerning the electoral process in Maryland. Subtitle 26 of Article 33, entitled "Fair Election Practices," extensively regulates campaigns in the State of Maryland. Article 33, Section 26-9 ("Contributions and expenses of persons not candidates") heavily regulates election campaign financing and sets limits on campaign contributions to candidates and political committees. Sections 30-1 through 30-4 regulate disclosure of contributions by those doing business with the government.

Sections 30-1 et. seq. as well as all of subtitle 26, apply to both State and federal campaigns. Article 33, Section 26-1 states that "the provisions of [subtitle 26] shall apply to all elections in which ballots shall be cast pursuant to the provisions of this article." The term "election" is defined as:

the process by which voters of the State, or any county or city thereof, vote for any party or public officer pursuant to the laws of this State or the United States, any constitution or constitutional amendment, public law, public act or proposition and unless otherwise indicated shall include all elections, primary, general, special, local, congressional, presidential, or statewide. It does not mean any municipal election other than in Baltimore City unless otherwise specifically provided for in this article. (Emphasis added).

Even though State law may be preempted as to federal elections, the Commission does not believe that the term "gift" in the County ethics law should be interpreted to include a transfer made in connection with a federal political campaign and yet to exclude a transfer made in connection with a State political campaign. Such an interpretation would not advance any rational legislative purpose. Therefore, the Commission believes that all transfers regulated by either State or federal campaign laws should be excluded from the definition of gift in the County ethics law.

Accordingly, any contributions which the Board member solicited as part of the October 22nd fundraiser are not "gifts" under the County ethics law, and the solicitation of those funds is not prohibited under section 19A-16.

II. Board of Appeals Code of Ethics

Section 2-109 sets out additional statutory provisions regulating the conduct of members of the Board of Appeals. Section 2-109 provides in relevant part:

(b) Conduct prohibited. No member shall:

* * *

(3) Solicit or accept any gift, favor, loan, service, promise, employment or thing which might influence or tend to influence the proper performance of his duty.

* * *

(c) Exemptions. No part of this section shall be construed to prohibit a member of the board of appeals from appearing in the pursuit of his private interests as a citizen, or from accepting or receiving any benefit by operation of law, or prosecuting or pursuing any claim, right, privilege or remedy which is his by operation of law.

Section 19A-3 provides that "[i]f any other County statute or regulation relating to conflicts of interest, financial disclosure, or lobbying disclosure is more stringent than this law, the more stringent provision applies." Because Section 2-109 does not contain any limitation on the term "gift," Section 2-109 should not automatically be read to exclude transfers regulated by State law governing political campaigns or elections, as the County ethics law does.

However, before this section may be applied to the case at hand, it must be determined, as a threshold matter, whither the comprehensive federal and State laws regulating campaign finance have preempted the application of §2-109 to campaign solicitations.

A. State Preemption

While a chartered county may have authority to enact certain legislation, that legislation may still not pass muster if it is in conflict with or is preempted by State law. If a local law is struck down for either reason, the chartered county’s authority to enact the legislation is irrelevant. County Council for Montgomery County v. Montgomery Association, 274 Md. 52, 57, 333 A.2d 596, 599 (1975). In general, a State law may void a local law in one of three ways: (1) under the conflict doctrine, (2) by express preemption, or (3) by implied preemption. Talbot County v. Skipper, 329 Md. 481, 487-8, 620 A.2d 880, 883 (1993).

The Maryland Court of Appeals first applied the doctrine of implied preemption in County Council for Montgomery County v. Montgomery Association. 274 Md. 52, 57, 333 A.2d 596 (1975), when reviewing three county laws regulating campaign finance practices of political candidates in Montgomery County. The Court found that the General Assembly, by enacting comprehensive legislation in the area, "has completely occupied the field of regulation of campaign finances and thus made clear its intent to exclude local legislation on the subject." Id. At 57,333 A.2d at 599 (footnote omitted). The Court found it unnecessary, therefore, to decide whether the county had the initial authority to enact its local law in the first place.

B. Federal Preemption

State law is preempted under the supremacy clause of the U.S. Constitution, art. VI, cl. 2, in three circumstances. First, Congress can explicitly state what, if any, preemptive effect a federal law will have. Second, in the absence of explicit language, the court can infer preemption from a scheme of federal regulation which is so pervasive as to make reasonable the conclusion that Congress left no room for the states to regulate in that area. Finally, state law is preempted to the extent it actually conflicts with federal law. English v. General Electric Co., 496 U.S. 72, 78–79, 110 S.Ct. 2270, 2275, 110 L.Ed.2d 65 (1990). For supremacy clause purposes, a local law is analyzed in the same way as a statewide law. Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 713, 105 S.Ct. 2371, 2375, 85 L.Ed.2d 714 (1985).

As already noted, the Federal Election Campaign Act, 2 U.S.C. Sections 431–456 expressly preempts "any provision of State law with respect to election to Federal office." 2 U.S.C §453. Accordingly, an express preemption analysis must be employed. "If the statute contains an express pre-emption clause, the task of statutory construction must in the first instance focus on the plain wording of the clause, which necessarily contains the best evidence of Congress’ pre-emptive intent." CSX Transportation, Inc. v. Easterwood, 113 S.Ct. 1832, 1737, 123 L.Ed.2d 387 (1993).

C. Is Section 2-109 Preempted?

The Commission does not believe that either State or federal campaign finance laws preempt the application of Section 2-109 under all circumstances.

In reaching this conclusion, the Commission reviewed an Attorney General opinion regarding a Prince George’s County ordnance "requiring that all persons who do business with the County report campaign contributions made to elected officials in Prince George’s County; providing for restriction upon the activities of persons registered as lobbyists; and providing that persons contracting with the County file required reports." In a letter dated April 4, 1990, the Maryland Attorney General opined that the bulk of the ordnance was preempted by State law. The Attorney General stated:

With one exception, Council Bill 17-1990 deals with the "matter of election campaign financing." It prohibits certain contributions . . . requires a statement of certain contributions . . . and sets attribution rules for these contributions . . . . However, the State Election Code, Article 33, fully occupies the field of campaign finance regulation. Article 33 addresses both campaign contributions and disclosure of contributions by those doing public business. See Article 33, §§26-9 and 30-1 through 30-4.

75 Op. Att’y Gen. 343 (1990 [No. 90-018, April 4, 1990] (footnote omitted). However, the Attorney General concluded that one provision of the ordnance was not preempted:

The one provision of Section 2 of Council Bill 17-1990 that is not preempted, in our view, is proposed Code §2-295.1(a)(1), which prohibits a lobbyist from "[a]ttempt[ing] to influence the vote of any member of the County Council by the promise of financial support of the member’s candidacy or by threat of financial opposition to the member’s candidacy."

Under Article 40A, §6-301 [presently codified at Maryland Code (1995 Repl. Vol.), §15-803 of the State Government Article], each local government is directed to "enact lobbyist regulation provisions substantially similar to the provisions of Title 5 of [Article 40A] which shall be modified to the extent necessary to make the provisions relevant to that jurisdiction and which may be further modified to the extent deemed necessary and appropriate by and for that jurisdiction." This provision does not authorize a local government to regulate campaign contributions by lobbyists, because the matter of campaign contributions is separately regulated by the Election code. See 71 Op. Att’y Gen. 108, 109 (1986); 68 Op. Att’y Gen. 252, 261–63 (1983).

Nevertheless, in our view, a prohibition against "[a]ttempting to influence the vote of any member of the County Council" by promising future contributions, or threatening to withhold future contributions, is sufficiently distinct from the regulation of the contributions themselves to fall outside of the zone of preemption. The State Election Code does not regulate the nature of the discourse between lobbyists and officials. Thus, Code §2-295.1(a)(1) is a proper exercise of the County’s power under Article 40A, §6-301. (Emphasis added) (footnote omitted).

The Commission finds the reasoning by the Attorney General persuasive and, therefore, concludes that federal and State laws regulation campaign financing do not automatically preempt county laws regarding ethics, even though the County law may touch upon the same transaction.

D. Does Section 2-109 Prevent a Board Member from Participating in Political Campaigns?

In construing Section 2-109, the rules of statutory construction set out by the Court of Appeals in Maryland State Police v. Warwick Supply & Equipment Co., Inc., 330 Md. 474, 624 A.2d 1238 (1993), appear to be particularly relevant:

Again and again, we have said that the cardinal rule of statutory construction is to ascertain and effectuate the legislative intention. Harford County v. University, 318 Md. 525, 529, 569 A.2d 649 (1990); Jones v. State, 311 Md. 398, 405, 535 A.2d 471 (1988). While the language of the statute is the primary source for determining legislative intent, State v. Fabritz, 276 Md. 416, 421, 348 A. 2d 275 (1975), the plain meaning rule is not absolute. Kaczorowski v. City of Baltimore, 309 Md. 505, 513, 525 A.2d 628 (1987). Rather, the statute is to be construed reasonably with reference to the purpose, aim, or policies of the Legislature reflected in the statute. Id. Words in a statute must, therefore, be read in a way that advances the legislative policy involved. Morris v. Prince George’s Co., 319 Md. 597, 603–04, 573 A.2d 1346 (1990). And where two statutes purport to deal with the same subject matter, they must be construed together as if they were not inconsistent with one another. Police Comm’r v. Dowling, 281 Md. 412, 418, 379 A.2d 1007 (1977); Comm’n on Md. Discipline v. Bendler, 280 Md. 326, 330, 373 A.2d 1232 (1977). In this regard, the courts strongly favor a harmonious interpretation in construing the related statutes which gives full effect to both statutes, even where they were enacted at different times and without relation one another.

Id. at 483.

In light of these principles of statutory construction, the Commission does not find that Section 2-109(b)(3) precludes Board members from soliciting campaign contributions for candidates under all circumstances or precludes Board members from soliciting campaign contributions to fund their own campaigns for elective office. The Commission does not believe that the application of the rules of statutory construction set out in Maryland State Police v. Warwick support an interpretation that totally precludes such activities. In order to preclude such political activities, Section 2-109 would need to include more express and defined limitations.

Although the Supreme Court has specifically upheld one state law containing restrictions on the political activity of State employees, Maryland has enacted legislation ensuring that public employees’ political activities and expression are preserved. Maryland Code (1957, 1996 Repl. Vol.), Article 24, Title 13 provides:

13-102. Public policy

Employment by a local entity does not affect any right or obligation of a citizen under the Constitution and laws of the United States of America or under the Constitution and laws of this State.

13-103. Employee rights.

Except as otherwise provided in this title, an employee of a local entity:

(1) May freely participate in any political activity and express any political opinion; and

(2) May not be required to provide any political service.

Although Section 13-103 applies to employees and not members of boards and committees, the Commission finds this State law a persuasive factor in concluding that the Commission should not read into Section 2-109 a complete ban on involvement in political campaigns.

Although states and counties may enact statutes restricting the right of a public employee to participate in the political process, laws doing so must be plain and express. 63 Am. Jur. 2d §39 Public Officers and Employees (1984). A strong public policy exists in favor of eligibility for public office and any ambiguities in a statute purporting to limit such eligibility should be construed in favor of participation in the political process. For example, in imposing limitations on the political activity of members of this Commission and the Merit System Protection Board, the applicable law has done so expressly, with clear and unmistakable language. See §19A-5(b); County Charter §403. This is not the type of language found in §2-109(b)(3).

Moreover, the Commission believes Section 2-109 must be interpreted in a manner consistent with the County ethics law. See, Maryland State Police v. Warwick, 330 Md. 474, 624 A.2d 1238 (1993). As previously discussed, the County ethics law does not regulate a public employee’s solicitation of campaign contributions. The Commission cannot justify imposing by way of statutory construction a limitation on the political activities of members of the Board of Appeals. Members of other quasi-judicial bodies are not limited in their political activities. See, e.g., Section 10B-3, Commission on Common Ownership Communities; Section 24A-4, Historic Preservation Commission; Section 27-2, Human Relations Commission; and Section 29-9, Landlord-Tenant Commission.

Finally, §2-109(c) expressly provides that "no part of this section shall be construed to prohibit a member of the board of appeals from appearing in the pursuit of his private interests as a citizen, or from accepting or receiving any benefit by operation of law, or prosecuting or pursuing any claim, right, privilege or remedy which is his by operation of law." The right to run for elected office may fall within this provision. Accordingly, the Commission believes subsection (c) provides further indication that the Council did not intend to impose a per se ban on members of the Board of Appeals from soliciting campaign contributions.

CONCLUSION

As discussed, the Ethics Commission is by no means precluded from applying the County ethics law or the Board of Appeals Code of Ethics to the conduct of a public employee merely because that conduct is political. In 62 Op. Att’y Gen. 425 (1977), the Maryland Attorney General opined that while a State employee’s political activity is protected under State law and may not be automatically banned as violative of the State ethics code, such activity is not thereby immunized from review under the ethics code. For example, an employee may violate Section 19A-15 if the employee discloses confidential information while engaging in political activity.

Thus, while the County ethics law and §2-109 may not be read as a ban on participation in political activity (including seeking elected office), the Commission may review a Board member’s activities to determine whether he or she has "solicit[ed] or accept[ed] any gift, favor, loan, service, promise, employment or thing which might influence or tend to influence the proper performance of his duty." Likewise, the Commission may examine whether a Board member has misused his or her prestige of office in violation of Section 19A-14(a) or attempted to coerce or discriminate against a person for the purpose of interfering with that person’s freedom to engage in political activity in violation of Section 19A-14(e).

The Commission does not find, however, that the facts presented in the Board member’s request constitute a violation of the County ethics law or Section 2-109. We believe that the guidelines suggested in the Board member’s letter are reasonable and appropriate voluntary restraints on the member’s political activity.

Although the Commission does not believe that County laws prohibit the Board member’s political activities, the Commission is concerned that participation in political campaign activities may be inconsistent with the responsibilities of membership on a quasi-judicial County board or commission.

Membership on a board or commission that exercises quasi-judicial powers requires adherence to the highest standards of balance and objectivity, and the demands of a political advocate may often be in conflict with such objectivity. Not only should such a conflict be avoided, but the appearance of a conflict should also be avoided.

Except for the Merit System Protection Board and the Ethics Commission, members of quasi-judicial County boards and commission are not currently prohibited from participating actively in the political process. Such participation, this Commission believes, may lead to a conflict of interest, or the appearance thereof. This conflict can be avoided by requiring that the member choose between political campaign activity and service on a quasi-judicial board or commission.

To avoid this possible conflict, the Commission recommends that the Council consider legislation, and if necessary an amendment to Charter Section 405, to prohibit active participation in the political campaign process by any County board or commission member who serves in a quasi-judicial capacity.

[signed]

Laurie Horvitz, Chair

Montgomery County Ethics Commission

 

[Advisory Opinion 1997-2]

February 11, 1997

 

Dear [name withheld]:

At its last meeting, the Ethics Commission reviewed your letter of December 13, 1996 regarding your appointment as the school system’s representative to the Telecommunications Transmission Facility Coordinating Group. This group was established by the County Council to refer applications for cellular towers/monopoles to the agencies who make decisions regarding the applications.

You have disclosed that you own stock valued at $100,000 in Associated Communications, Inc. which was recently acquired by Southwest Bell, the parent of Cellular One. Because Cellular One or Southwest Bell could be potential applicants before your coordinating group, you have asked for advice from the Ethics Commission to avoid any conflicts of interest.

The Ethics Commission noted that your interest in Associated Communications, Inc. is monetarily substantial. In light of this large interest, the Commission concluded that you should not discuss or vote on any applications related to Southwest Bell or Cellular One. See Section 19A-11 of the Montgomery County Ethics Code.

The Commission trusts that this letter is responsive to your request. Please contact our office if you have further questions or concerns regarding this matter.

Sincerely,

[signed]

Barbara McNally

Executive Secretary

 

 

[Advisory Opinion 1997-3]

February 11, 1997

[name withheld]

Re: Request for a Waiver to Act as a Subcontractor with Information Planning Associates

Dear [name withheld]:

Thank you for your letter of September 26, 1996 concerning your request for a waiver to permit you to act as a subcontractor with Information Planning Associates to provide computer consulting and programming services to the Montgomery County Government.

Based upon the facts that you have presented to the Ethics Commission, the Commission has determined that you do not need a waiver of the Montgomery County Ethics Law. Two provisions in the law apply to former County employees.

Section 19A-13(b) prohibits certain employment within one year of a person’s last County employment, if the person significantly regulated the employer while a County employee, or administered a contract between the employer and the County. More than one year has passed since you retired from County government and you do not fall within the prohibition against engaging in certain employment relationships within one year of your last County service. Therefore, you do not need a waiver of Section 19A-13(b).

Section 19A-13(a) prohibits certain conduct of former County employees for ten years. Based upon the description of your County duties, the Commission has concluded that Section 19A-13(a) does not preclude your requested employment.

Thank you for bringing this matter to the Commission’s attention. I trust that we have been responsive to your request.

Sincerely,

[signed]

Laurie Horvitz, Chair

Montgomery County Ethics Commission

 

[Advisory Opinion 1997-4]

February 11, 1997

Dear [name withheld]:

Thank you for your memorandum of December 16, 1996 regarding your interest in contracting with Montgomery County Public Health Clinics to provide dentistry services. You have provided the Commission with the following information:

In October, 1996 you involuntarily retired from Montgomery County employment due to a Reduction-in-Force. You had served in a merit position of Dentist for nine years rendering dentistry services at public health clinics across the County. During that time, you did not have responsibility for monitoring contracts or awarding contracts associated with the Dental Program.

In consideration of these facts, the Commission determined that you do not require a waiver of Chapter 19A, and that you are free to contract with the County to provide general dentistry services. If you have any further questions, please do not hesitate to contact our office.

 

Sincerely,

[signed]

Barbara McNally

Executive Secretary

BMM:jw

cc: J. Wormack, Office of Procurement
B. Tublin, DHHS—Contract Management Team

 

[Advisory Opinion 1997-5]

MEMORANDUM

February 13, 1997

TO: [name1 withheld], Acting Planning Manager
Division of Solid Waste Services
Department of Public Works and Transportation

FROM: Barbara M. McNally, Executive Secretary [initialed]
Ethics Commission

SUBJECT: Your memo of November 18, 1996

At its meeting in December, the Ethics Commission reviewed your memo disclosing that [name2 withheld] of Park and Planning is assisting your division, Solid Waste Services, with the preparation of an RFP for the restoration and long-term use of an historic farm. According to information provided by you, [name2 withheld] is the Historic Preservation Coordinator in the Montgomery County Department of Parks and Planning and is the appropriate employee in her department to coordinate and review RFP documents regarding historic preservation issues.

You have asked the Ethics Commission for guidance or comments concerning [name2 withheld]’s participation in the preparation of the RFP because she has regular contact both professionally and vocationally with preservationists who may potentially bid on the project. One such potential proposer works as a contract employee under [name2 withheld]’s supervision.

In your memorandum you indicated that "[name2 withheld] believes that she can provide her services in an objective manner and is sensitive to her obligations to not disclose any material concerning the RFP to potential proposers on this project." In consideration of this assurance and the procurement law prohibition of the use of confidential information, the Commission determined that [name2 withheld]’s participation will not create a conflict of interest under the ethics law.

Thank you for bringing this matter to the attention of the Commission. We trust that this memo is responsive to your concern.

 

BmcN:jw

 

[Advisory Opinion 1997-6]

February 20, 1997

M E M O R A N D U M

TO: [name withheld], Chair
Child and Adolescent Subcommittee
Montgomery County Mental Health Advisory Committee

FROM: Laurie Horvitz, Chair [initialed]

RE: Waiver Request

You have requested a waiver under the Montgomery County Public Ethics Law to permit you to continue as a member of the Mental Health Advisory Committee. For the reasons explained below, the Ethics Commission has determined that it cannot grant your waiver request.

BACKGROUND

You are a member of the Montgomery County Mental Health Advisory Committee. The Mental Health Advisory Committee is established under Section 24-34. The duties of the Mental Health Advisory Committee include evaluating the allocation and adequacy of public funding for mental health services; participating in the development of the local mental health plan and local mental health budget; and identifying the needs of the County mental health system.

You are also a party to a contract dated June 24, 1995 with Montgomery County. The contract requires you to provide certain coordination and technical services to assist the County in meeting its obligations under the Systems Reform Initiative (SRI) grant. According to the Montgomery County Department of Health and Human Services, the SRI grant is funded, at least in part, by the Maryland Department of Health and Mental Hygiene.

DISCUSSION

Two prohibitions in the Montgomery County Code are relevant to your request. Section 24-34(c) provides:

A committee member must not receive direct or indirect monetary benefits from State Department of Health and Mental Hygiene grants or contracts, except local general hospitals that contain a clinic or state designated in-patient beds, a local community rehabilitation or housing program, and the representative from the County Mental Health Association. In this section, monetary benefits do not include reimbursement for ordinary expenses, such as travel, or compensation received by a government employee.

Section 11B-52 is also applicable to your situation. That section prohibits a County contractor from employing a public employee. Section 11B-52 further states that, "public employee and employ as used in this section are defined in Chapter 19A." Section 19A-4 defines a public employee to include any person appointed to a County board, commission or committee whether or not the person is compensated for serving on that body. Section 19A-4 defines employ as engaging in an activity for compensation. Accordingly, the Commission concludes that Section 11B-52 prohibits you from simultaneously serving as a member of the Mental Health Advisory Committee and being a party to a contract with the County without first obtaining a waiver from the Ethics Commission.

The County Code identifies which prohibitions in the County Code the Ethics Commission may waive and the standards governing waiver determinations. Section 19A-8 authorizes the Commission to waive the prohibitions of Chapter 19A, Charter Section 411, Section 11B-51 and Section 11B-52. Section 24-34(c) is not expressly enumerated in Section 19A-8. However, Section 19A-3 provides that, "If any other County statute...relating to conflicts of interest...is more stringent than this law [Chapter 19A, Ethics], the more stringent provision applies." The Commission has considered whether Section 19A-3 authorizes the Commission to waive Section 24-34(c). The Commission has determined that Section 19A-3 does not expand the waiver authority provided in Section 19A-8. Because Section 19A-8 expressly references certain sections of the County Code, and does not refer to Section 24-34(c), the Commission has concluded that it is without authority to waive the prohibitions of Section 24-34(c). Accordingly, the Commission has not granted a waiver of that Section.

As already noted, Section 19A-8 does authorize the Ethics Commission to waive the prohibition of Section 11B-52 under appropriate circumstances. The Commission may grant a waiver if it finds that:

1. The best interest of the County would be served by granting the waiver;

2. The importance to the County of a public employee performing his or her official duties outweighs the actual or potential harm of any conflict of interest; and

3. Granting the waiver will not give a public employee an unfair advantage over other members of the public.

In light of the clear policy expressed by the prohibition of Section 24-34(c), the Ethics Commission does not find that it is in the best interest of the County to grant you a waiver from the prohibition of Section 11B-52. Accordingly, your waiver request must be denied.

If there are additional issues which you believe the Commission should consider in regard to your request, please let the Commission know.

 

[Advisory Opinion 1997-7]

March 17, 1997

Dear [name withheld]:

The Ethics Commission has reviewed your request for advice regarding potential employment outside the Department of Health and Human Services (DHHS).

You currently are employed part-time with DHHS, Adult Mental Health and Substance Abuse Services. You are a Psychiatric Nurse Clinical Specialist and provide outpatient addiction and psychiatric treatment to persons who have both chemical addictions and psychiatric disorders.

You are a candidate for two outside employment positions and you wish to know if there would be any potential conflict if you pursue either. One position is with a private provider as a Nurse Psychotherapist to provide psychiatric services to chronically mentally ill clients. The other position is with the Montgomery County Public Schools System (MCPS) as an Employee Assistance Program Specialist responsible for assessment, evaluation, short term treatment and referral of MCPS employees and their families for continued services and/or treatment.

Based on the limited information provided in your letter, you will not need a waiver of the County conflict of interest laws in order to accept employment with either of these outside employers. However, a conflict of interest may be present if either of these positions is part of a contract held by the outside employer with DHHS. In that event, you would need to obtain a waiver from the Commission of Section 19A-13 of the Montgomery County Code.

If no DHHS contracts exist, you will not need a waiver but will nonetheless need to obtain Commission approval for the outside employment. To receive outside employment approval, you must submit a request for outside employment to your Department Director who will in turn forward it to the Ethics Commission for final approval. I have enclosed the necessary form for your use. If you have any questions, please contact our office.

Sincerely,

[signed]

Barbara McNally

Executive Secretary

BM/jlw

Enclosure

 

[Advisory Opinion 1997-8]

March 10, 1997

[name withheld]

Office of the County Attorney

Dear [name withheld]:

The Ethics Commission considered at its February meeting your request regarding the applicability of Section 19A-16(c) to your situation. The Ethics Commission agrees with your conclusion that Section 19A-16(c) does not apply to the facts presented in your letter.

Specifically, you are dating an individual who has contracts with the County. However, the individual does not have a contract with the Agency with which you are employed, nor does he have contracts over which you have any control. As a result, you have concluded that Section 19A-16(c) does not apply to gifts that you may receive from this person. The Commission agrees.

Thank you for your request. If you have any additional questions, please do not hesitate to contact the Commission.

Sincerely,

[signed]

Laurie Horvitz, Chair

 

[Advisory Opinion 1997-9]

April 8, 1997

Dear [name withheld]:

The Ethics Commission has reviewed your letter of February 17, 1997. In that letter you advised the Commission of the following:

Beginning in 1994 you had worked as a volunteer technician at Montgomery Community Television. When you interviewed for an appointment on the Cable Communications Advisory Committee ("CCAC") in November of 1996 you informed the County Council’s interview committee that you had just accepted part-time employment with Montgomery Community Television. Your disclosure did not affect your appointment to the CCAC as a voting member.

Since your appointment, you have been asked by the Program Manager of the Cable TV Unit to request an advisory opinion and/or waiver in the event of a conflict between your employment and your position on the Committee.

The Ethics Commission reviewed these facts and determined that a waiver was not necessary. Thank you for bringing this matter to our attention.

Sincerely,

[signed]

Barbara McNally

Executive Secretary

_

[Advisory Opinion 1997-10]

April 11, 1997

[name withheld], Acting Director

Department of Permitting Services

Re: DPS Customer Service Workgroup (CSW) Facilitator

Dear [name withheld]:

The Montgomery County Ethics Commission has received your memorandum of March 4, 1997 and has considered your request.

According to your memorandum, your Department has established a customer service workgroup which is comprised of representatives of a number of different organizations. One of those organizations, the Suburban Maryland Building Industry Association has offered to pay for a facilitator to help this group develop recommendations for improved customer service. The person who has been suggested as the facilitator currently works for a consulting group that has a contract with the County. Until January of this year, the proposed facilitator worked for the County in conjunction with the consulting group.

Based upon the facts described in your request, the Commission has concluded that a waiver is not necessary for the Department to hire the proposed facilitator or to accept the services of a facilitator hired by Suburban Maryland Building Industry Association. This is because Section 19A-16(e) of the County Code does not prevent an agency from accepting unsolicited gifts. The Commission has no basis for concluding that you have solicited the gift. Therefore, a waiver of the gift provisions is not necessary.

However, your memorandum raises another ethics issue concerning former County employees. Because the facilitator is a former County employee who left County service within the last year, she must review the provisions of Section 19A-13(b). She may need a waiver in order to work for a company that has a contract with the County because she may have had official responsibility concerning the contract while a County employee. It is not clear from your request whether she needs a waiver of Section 19A-13. Therefore it would be appropriate for her to consult with the Commission promptly.

Thank you for consulting the Commission. I hope that we have fully answered your question.

Sincerely,

[signed]

Laurie Horvitz, Chair

Montgomery County Ethics Commission

LH/jlw

_

[Advisory Opinion 1997-11]

MEMORANDUM

June 16, 1997

TO: [name withheld], Director
Department of Housing and Community Affairs

[name withheld], MPDU Coordinator
Department of Housing and Community Affairs

FROM: Laurie Horvitz
Chair, Montgomery County Ethics Commission [initialed]

SUBJECT: Rehabilitation Loan Program: Advisory Opinion

Attached is the Ethics Commission’s Advisory Opinion in response to your request of March 3, 1997.

If you have any questions or concerns regarding this advice, please contact the Ethics Commission.

LH:lma

Attachment

cc: Marc P. Hansen, Senior County Attorney

Montgomery County Ethics Commission Advisory Opinion

June 16, 1997

Background

The Ethics Commission has been asked for an advisory opinion concerning the County’s Rehabilitation Loan Program which is administered by the Rehabilitation Section of the Housing Division of the Department of Housing and Community Affairs (DHCA). Under this loan program, the County makes loans to homeowners for the purpose of renovating the owner’s home. The homeowner, in turn, enters into a contract with a home improvement contractor. Although DHCA will provide the homeowner with a list of home improvement contractors, the homeowner is free to select a contractor not on the list. Although the County is not a party to the contract, employees of DHCA prepare the specifications for the work to be performed, inspect the work for compliance with the contract, and approve payments to the home improvement contractor.

Question

This opinion addresses whether an employee of the Rehabilitation Section may use a home improvement contractor involved in the Rehabilitation Loan Program to perform private work for the employee. This opinion also addresses whether other employees of DHCA who do not participate in the Rehabilitation Loan Program can use the private work contractors who participate in the program.

Response

1. Employees of the Rehabilitation Section.

Section 19A-11(a)(2)(E) prohibits a public employee from participating in a matter "if the employee knows . . . that any party to the matter is . . . a business . . . that is a party to an existing contract with the public employee . . . if the contract could reasonably result in a conflict between private interests and official duties."

The Ethics Commission believes that Section 19A-11(a)(2)(E) prohibits employees of the Rehabilitation Section from entering into a contract with a home improvement contractor for private work if the public employee is called upon under the Rehabilitation Loan Program to inspect the work of or approve payments to that contractor.

2. Other Employees of DHCA.

Section 19A-11, however, does not prohibit DHCA employees who are not working for the Rehabilitation Section from entering into contracts for private work with home improvement contractors participating in the Rehabilitation Loan Program. But, the Ethics Commission cautions employees of DHCA that Section 19A-16 prohibits public employees from accepting a direct or indirect gift from any individual or organization that does business with the County agency with which the employee is affiliated. Accordingly, an employee of DHCA must not accept a discount from a home improvement contractor that participates in the Rehabilitation Loan Program. Employees of DHCA should exercise great caution in negotiating with home improvement contractors that participate in the Rehabilitation Loan Program.

If there are any questions or concerns regarding this advice, please contact the Ethics Commission.

_

[Advisory Opinion 1997-12]

MEMORANDUM

TO: [name withheld], Environmental Health Specialist II
DPS, Wells and Septic Section

FROM: Barbara McNally, Executive Secretary [initialed]

SUBJECT: Purchase of firearms from a contractor

DATE: July 8, 1997

The Commission has considered your memorandum in which you express an interest in purchasing firearms from a septic system installation contractor. As part of your County responsibilities, you inspect the contractor’s work to ensure compliance with County regulations. You have asked the Commission whether this situation poses a conflict of interest.

Based upon the information in your memorandum, the Commission has concluded that Section 19A-11 of the County Code is applicable. Therefore, you would be prohibited from inspecting the contractor for compliance with County regulations if you entered into a financial transaction with that contractor.

However, you may request a waiver of this section of the Code. The standard which governs waiver decisions is set forth in Section 19A-8 of the County Code. With any request for a waiver, you should submit a recent appraisal of the guns in question and information establishing the value of the transaction. If you wish to pursue this course of action, please send your request to the Commission with the required documents.

Do not hesitate to contact our office if you have any questions.

BMM:jw

 

[Advisory Opinion 1997-13]

MEMORANDUM

TO: Councilmember [name withheld]

FROM: Laurie Horvitz, Chair [signed]
Montgomery County Ethics Commission

SUBJECT: Request for outside employment approval

DATE: July 8, 1997

The Montgomery County Ethics Commission has considered your request for outside employment approval to teach a class at Montgomery College entitled "Politics in Action—Successful Techniques for a Winning Election".

Based upon the information you provided to the Commission, your request has been approved. However, you must disclose your outside employment with the College before voting on any Montgomery College budget appropriations. This condition only remains in effect during the duration of your outside employment.

If you have any questions regarding this decision, please do not hesitate to contact our office.

BMM:jw

_

[Advisory Opinion 1997-14]

August 15, 1997

[name1 withheld], Chief

Public Health Services

Department of Health & Human Services

Dear [name1 withheld]:

The Ethics Commission has considered your June 5, 1997 request for a formal opinion regarding the precautions you have taken to avoid a conflict of interest involving a County contract with a family member.

As you explained in your correspondence, you are the Chief of Public Health Services, with the Department of Health and Human Services (DHHS). You are responsible for policy making, partnership development and administration. You do not have contract administration authority or contract monitoring responsibilities. However, you do supervise employees who monitor contracts. Last year, Dr. [name2 withheld], your brother-in-law, was awarded a County contract to render dentistry services. Upon learning of your brother-in-law’s intention to bid on the contract, you removed yourself from all aspects of the precontract process and then assigned the monitoring responsibilities for the contract to a nurse administrator in your unit. Further, you directed this nurse administrator to report to the Director of DHHS regarding any issues relating to your brother-in-law’s contract.

Section 19A-11 governs conflicts of interest and prohibits a County employee from participating in County matters affecting a relative’s business, economic interests or prospective employment opportunities. See 19A-11(1)(C), (2)(B), (2)(D), (2)(E), (2)(F)(ii). Section 19A-4(n)(2) defines the term "relative" to include a spouse’s sibling.

As you are aware, Section 19A-11 applies to your situation and prohibited your participation in the selection of your brother-in-law for the County contract. Similarly, Section 19A-11 prohibits your administration or supervision of this contract.

According to your correspondence with the Commission, it appears that you independently recognized this ethics issue and voluntarily sought to limit your participation. The Commission has reviewed the procedures that you have followed and the manner in which you have chosen to recuse yourself. The Commission has concluded that you have instituted appropriate procedures to ensure your non-participation. Of course, you will need to be mindful of the nurse administrator’s dual role as your subordinate and the person assigned to perform monitoring responsibilities on the contract.

In sum, the Ethics Commission has determined that you have appropriately recused yourself. The Commission appreciates your sensitivity to these matters. We hope that this opinion is responsive to your request.

Sincerely,

Laurie B. Horvitz

Chair

_

[Advisory Opinion 1997-15]

Montgomery County Ethics Commission

Advisory Opinion

October 14, 1997

The Co-Chairs of the Ethics Committee of the Department of Health and Human Services have sought an advisory opinion of the Commission concerning the application of Chapter 19A of the Montgomery County Code (the "County Ethics Law") to a county employee’s acceptance of an unsolicited gift from a patient or client of the employee’s agency. In particular, the Committee has asked whether the County Ethics Law prohibits professionals, such as nurses and caseworkers employed by the Department of Health and Human Services, from accepting an unsolicited gift from a patient or client of the Department.

ADVICE

For the following reasons, the Commission is of the opinion that, with certain exceptions, the County Public Ethics Law prohibits the acceptance of such gifts. In particular, the Commission advises:

1. §19A-16(c) of the County Public Ethics Law prohibits every county employee, including professionals such as nurses and caseworkers, from accepting any gift, other than a gift permitted by §19A-16(d), from any individual or organization that the employee knows or reasonably should know does business with the County agency with which the employee is affiliated, including a patient or client of that agency.

2. A nurse or caseworker who receives a gift prohibited by §19A-16(c) is required by §19A-16(f) to report the gift to the Commission and either return the gift to the donor or transfer the gift to the County.

DISCUSSION

The Montgomery Public Ethics Law is grounded, in pertinent part, on the following legislative findings and statements of policy:

(a) Our system of representative government depends in part on the people maintaining the highest trust in their public officials and employees. The people have a right to public officials and employees who are impartial and use independent judgment.

(b) The confidence and trust of the public erodes when the conduct of County business is subject to improper influence or even the appearance of improper influence.

Montgomery County Code, §19A-2. This County Ethics Law also was enacted "to guard against improper influence." §19A-2(c), and, except for its criminal sanction provisions, is intended to "be liberally construed to accomplish this purpose," §19A-2(d).

In furtherance of these findings and policies and in response to a state law mandate, the County Public Ethics Law specifically addresses the acceptance of an unsolicited gift by a public employee In pertinent part, §19A-16(c) provides:

A public employee must not knowingly accept a direct or indirect gift from any individual or organization that the public employee knows or reasonably should know:

* * *

(2) does business with the County agency with which the public employee is affiliated;

* * *

or

(4) has an identifiable economic interest that is different from that of the general public, which the public employee may substantially affect in performing the public employee’s official duties.

§19A-16(f) requires that a public employee who receives a gift prohibited by §19A-16(c) report the gift to the Commission and either return the gift to the donor or transfer the gift to the County.

Montgomery County enacted §19A-16(c) in obedience to a provision of the State Public Ethics Law which requires that each county enact conflict of interest provisions similar to those of the State Ethics Law. See, Md. Code, State Gov. Art., §15-804; Co. Code, §19A-2(d). Thus, state law provides the model for the county provisions and the two are to be read in pari materia.

In 1982, the State Ethics Commission, which is uniquely qualified to construe the State Ethics Law, addressed, in a published opinion, the question of whether that law prohibited a community home care aide in a local department of social services from accepting a bequest from the estate of a former client. Based on the State Ethics Law’s admonition that it be liberally construed, the State Ethics Commission concluded that an agency client is a person doing business with the agency, and consequently agency personnel could neither solicit a gift nor accept an unsolicited gift from an agency client. Md. State Ethics Commission Opinion No. 82-54, XVII COMAR 535, 536 (December 15, 1982).

The longstanding formal construction of a law by the agency charged with its administration is entitled to weight. Md. Com’n. On Human Relations v. Baltimore Gas & Electric Co., 296 Md. 46 (1923). Indeed, when acquiesced in by the Legislature, the formal construction of a law by the agency charged with its enforcement is entitled to great weight and should not be disregarded except for the strongest reasons. Public Service Comm. of Md. v. Howard Research & Dev. Corp., 271 Md. 141 (1974). Thus, given the State Ethics Commission’s extraordinary authority to interpret the State Ethics Law and the approximately fifteen year period in which the Legislature has acquiesced in the construction of state law as prohibiting state employees from accepting a gift from their state agency client, Opinion 82-53 is entitled to great weight when construing the State Ethics Law. Furthermore, given the direct relationship between the similar conflict of interest provisions of the State Ethics Law and those of the County Ethics Law, Opinion 82-54 is also especially persuasive as to the meaning of the similar, state-mandated, gift prohibition provision of the Montgomery County Public Ethics Law.

Thus, in the light of both the state model, as construed by the State Ethics Commission, and the County Ethics Law’s express admonition that it be liberally construed "to guard against improper influence," this Commission concludes that §19A-16(c)(2) prohibits professionals, including nurses and social workers employed by a county agency, from accepting a gift from their patient or client, unless the gift is permitted by §19A-16(d).

[signed]

_____________________________

Laurie Horvitz, Chair

Montgomery County Ethics Commission

_

[Advisory Opinion 1997-16]

November 12, 1997

Dear [name1 withheld]:

The Ethics Commission has reviewed your letter of July 8, 1997 in which you discussed a situation involving [name2 withheld], a Commissioner with the Housing Opportunities Commission (HOC). As you explained, the Commissioner’s daughter has purchased a residence and intends to apply for a loan from the Mortgage Purchase Program, a program offered by the HOC. Although you indicated that you did not believe the facts raised ethical concerns, you felt it was appropriate to consult the Ethics Commission.

In your letter, you stated that the HOC issues tax exempt bonds from which funds are utilized to provide mortgages for certain qualified individuals to purchase single family homes in Montgomery County. HOC approved lenders receive purchaser applications and present them to the staff of the HOC. The HOC staff approves qualified applications. The HOC purchases the closed loans and then contracts with another private lender for servicing of the loans. According to the information you provided, HOC Commissioners do not typically participate in matters pertaining to particular loan applications. However, the Commissioners may address general matters relating to underwriting or loan term issues. You have assured the Ethics Commission that [name2 withheld] would recuse himself from all activities relating directly or indirectly to his daughter’s loan application.

Based upon your representations, the Ethics Commission concurs with your general assessment of [name2 withheld]’s situation. He does not need to obtain a waiver of the conflict of interest provisions in the Ethics Code because he will not participate in any matter affecting his daughter’s loan.

Very truly yours,

[signed]

Laurie B. Horvitz, Chair

 

[Advisory Opinion 1997-17]

November 21, 1997

[names withheld]

Co-Chairs, Ethics Committee

Montgomery County Department of Health and Human Services

Re: Acceptance of Unsolicited Gift from Patient or Client; Request for Opinion and Possible Waiver

Dear Co-Chairs [names withheld]:

As the Co-Chairs of the Ethics Committee (the "Committee") of the Montgomery County Department of Health and Human Services (the "Department"), you have asked the Montgomery County Ethics Commission (the "Commission") for an advisory opinion, pursuant to §19A-7 of the Montgomery County Code, regarding the application of the Montgomery County Public Ethics Law (the "Ethics Law") to the acceptance of unsolicited gifts by certain employees from certain donors. You have also suggested that, to the extent the acceptance of such gifts currently is prohibited, the Commission should consider the benefits of waiving, pursuant to §19A-8(a) of the Code, current restrictions so as to permit the acceptance of such gifts.

I.

ADVISORY OPINION

Question Presented

Does the Ethics Law prohibit a therapist (e.g., a nurse or a clinical social worker) employed by the Department of Health and Human Services from accepting an unsolicited gift from a patient or client?

Advice

The Ethics Law prohibits a therapist employed by the Department from accepting a gift from a patient or client. It also requires a County employee who accepts a prohibited gift to report the acceptance of the gift to the Commission and either return the gift to the donor or transfer the gift to the County.

This advice is founded upon the following facts, law and analysis.

A. Facts

As stated more fully in the document that accompanied your request, Department staff have presented the Committee with opposing views regarding the professional propriety and therapeutic value of a therapist accepting an unsolicited gift from a patient or client. One view is that in certain situations the rejection of an unsolicited gift from a patient or client may send a message that can be harmful. Another view is that the acceptance of such gifts may "contaminate" the clinical process.

B. Law

The Ethics Law, which is codified as Chapter 19A of the Montgomery County Code, was enacted "to guard against improper influence," and, except for its criminal sanction provisions, is expressly intended to "be liberally construed to accomplish this purpose." §19A-2(c)(d). The Law specifically addresses the acceptance of an unsolicited gift by a public employee. In pertinent part, §19A-16(c) provides:

A public employee must not knowingly accept a direct or indirect gift from any individual or organization that the public employee knows or reasonably should know:

* * *

(2) does business with the County agency with which the public employee is affiliated; [or]

* * *

(4) has an identifiable economic interest that is different from that of the general public, which the public employee may substantially affect in performing the public employee’s official duties.

§19A-16(d) contains numerous exceptions to §19A-16(c). One of those exceptions, the so-called "Ten Dollar Limit," permits the acceptance of "items of personal property, other than cash, worth less than $10." See, §19A-16(d)(3).

§19A-16(f) requires a public employee who receives a gift prohibited by §19A-16(c) to report the gift to the Commission and either return the gift to the donor or transfer the gift to the County.

C. Analysis.

§19A-16(c) was enacted in accordance with a provision of the State Public Ethics Law which requires that each county enact conflict of interest provisions similar to those of the state law. See, Md. Code, State Gov. Art., §15-804; Mont. Co. Code, §19A-2(d). Consequently, the state and county public ethics laws are to be read together.

In 1982, the State Ethics Commission addressed the question of whether the State Ethics Law, which prohibits state agency personnel from accepting a gift from a person who does business with the agency with whom the donee is affiliated, prohibited a community home care aide in a local department of social services from accepting a bequest from the estate of a deceased, former client. The State Ethics Commission concluded, among other things, that an agency client is a person doing business with the agency, and therefore a provision that prohibited a state employee from accepting a gift from one who does business with the employee’s agency would prevent the acceptance of a gift from a donor who is a current client of the donee’s agency. Md. State Ethics Commission Opinion No. 82-54, XVIII COMAR 533, 536 (December 15, 1982).

In light of the State Ethics Commission’s construction of the state law and the express admonition in §19A-2(d) that the County Law be liberally construed to accomplish its purposes, the Commission is of the opinion that:

§19A-16(c)(2) prohibits professionals, including therapists, employed by a county agency from accepting a gift from a patient or client, unless the gift is permitted by §19A-16(d); and

§19A-16(f) requires a therapist who receives a gift prohibited by §19A-16(c) to report it to the Commission and either return the gift to the donor or transfer it to the County.

II

WAIVER REQUEST

§19A-8 authorizes the Commission, after receiving a written request, to grant a public employee or class of public employees a waiver of any of the prohibitions of the Ethics Law, if the Commission makes certain findings. Your request suggests that the Commission may wish to consider the benefits of granting a waiver of the "Ten Dollar Limit" for the situations described in your letter, i.e., when a therapist receives an unsolicited gift from a patient or client.

Decision

The Commission will not grant a blanket waiver of the so-called "Ten Dollar Limit" for all unsolicited gifts from patients or clients to therapists under all circumstances and regardless of the value of the gift. However, if, in your view, permitting therapists to accept some gifts from patients or clients is both therapeutically prudent and consistent with the policies and objectives of the Ethics Law, you should articulate, support and submit a request for a more specific waiver.

We trust that this letter fully responds to your request for an advisory opinion and a waiver.

Very truly,

[signed]

__________________________________

Laurie Horvitz, Chair

 

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