Text of Advisory Opinions - 1990
An advisory opinion was requested concerning whether a member of a county commission, committee or board could contract with the County government while serving on that commission, committee or board.
The Montgomery County Public Ethics Law regulates the conduct of public employees. Section 19A-4 includes within the definition of public employee members of boards, committees, and commissions, whether paid or unpaid. Section 19A-8 provides that an employee may not engage in outside employment without first obtaining the consent of the Ethics Commission. This general requirement, however, does not apply to a member of a board or commission in regard to employment held at the time of appointment if that employment was publicly disclosed to the appointing authority. Section 19A-9(c)(3) continues to apply even though the clients or customers of the member may change from time to time.
The Commission notes, however, that there appears to be a strong policy in favor of careful regulation of public employees having a financial interest in any contract with the County. See Section 11B-52 (prohibiting a contractor from employing any public employee, without a waiver from the Commission, from being employed by an entity contracting with the agency with which the employee is affiliated). In light of this policy, the Commission concludes that the exemption provided by Section 19A-9(c)(3) does not extend to self-employed members of a board or commission who, subsequent to appointment, contract with the County or take as a client an entity which is subject to the authority of or contracts with the agency with which the employee is affiliated.
In an earlier decision, the Commission ruled that members of a board, committee, or commission may contract with the County if they obtain a waiver from the Commission or resign prior to submitting a proposal to the County. Waivers have been granted if the member has not participated in a recommendation regarding the specific project in question. Generally, the member is thereafter disqualified from participating in any government action which affects the project in question.
Date of Issue: March 9, 1990
A request was made by a member of the Historic Preservation Commission (HPC) concerning a potential conflict of interest between the Commission’s employment and membership on the HPC.
The Ethics Commission had been informed that HPC at that time was reviewing Historic Area Work Permit Applications for two projects located in the Kensington Historic District. While the HPC was involved in those deliberations, the requester anticipated that the Kensington Historical Society and the Town of Kensington would be submitting a grant proposal to the agency at which the Commissioner was employed. As the Commissioner’s job involved commenting on any application that would require agency funds, the Commissioner was concerned about reviewing these projects under two different authorities.
The Ethics Commission decided that since there was no grant application at that time, the Commissioner was not in a conflict of interest and could participate in regular duties as an HPC commissioner without violating the law. However, if the Commissioner’s employer made a grant to the Kensington Historical Society or the Town of Kensington, the Commissioner would require a waiver to participate on these projects or any other projects associated with the Kensington Historic District.
Date of Issue: May 22, 1990
The Ethics Commission has reviewed you letter of May 11, 1990 requesting permission to accept referrals from the Montgomery General Hospital Employee Assistance Program to your private practice which was previously approved by the Ethics Commission.
Because the referrals will come from Montgomery General Hospital, which is not a county agency, the Commission determined that you may accept referrals from this program. This approval is made with the stipulation that you keep accurate records of all county employees who are referred to you.
Please let us know if you have any further questions.
Date of Issue: June 11, 1990
Thank you for your letter requesting a ruling from the Commission as to whether you may accept reappointment to the Board of Social Services and Community Action Committee in consideration that since you were first appointed to these two boards you have become employed with the Montgomery County government under DHCD block grant.
The Commission has determined that your change in status from consumer to employee with Montgomery County does not prohibit you from serving on two volunteer boards simultaneously. Also, the Commission determined that the duties of the two boards in question do not create a conflict of interest with your employment. Please let us know if we may be of further service to you.
Date of Issue: June 11, 1990
June 19, 1990
Dear Mr. [name1 withheld]:
You have requested a waiver of the Ethics Law, if required, to avoid a conflict of interest concerning your wife’s employment and your position with the Historic Preservation Commission. As explained to the Ethics Commission, prior to your marriage to [name2 withheld], she worked for Mr. [name3 withheld] over the years on various aspects of an historic resource project. Most recently, she has been invited to perform additional work on this project. You have a concern about this most recent employment as Mr. [name3 withheld] has hired [name4 withheld], Esq. as his attorney on this project and Mr. [name4 withheld] is also representing a case that is coming before the Historic Preservation Commission of which you are a member.
In response to your request for a waiver, the Ethics Commission has found that based on your representation that your wife works for and at the direction of Mr. [name3 withheld], not Mr. [name4 withheld], no conflict of interest exists within the definition of the ethics law and no waiver is required. Of course, you always have the prerogative to recuse yourself from the HPC’s actions in Mr. [name4 withheld]’s case if you feel that this business relationship will influence your decisions as a Commissioner.
Thank you for bringing this matter to the Commission’s attention and let us know if we may be of further service.
The Ethics Commission has received your letter of June 6, 1990 regarding Police Officer (name omitted). You have asked what happens if this officer cannot find alternative employment and whether or not the Commission might review its policy on this matter.
On April 10, 1985, the County Council approved Ethics Commission Regulations regarding outside employment. Section 4.7 of these Regulations states:
"Sworn County police officers and civilian police employees may not hold outside employment involving security duties in the district to which they are assigned as County employees, except as permitted by special waiver granted by the Ethics Commission on a case by case basis."
In October 1987, the Ethics Commission announced that beginning on June 2, 1988, Section 4.7 would be strictly enforced unless a waiver was granted. Prior to that time, the Commission allowed police officers to remain in existing security related outside employment in the district to which the officer was assigned. The Commission did not approve requests by officers to take new security related jobs which were located in the district to which the officer was assigned. The purpose of this policy was to allow police officers time to phase out existing security related employment which violated the purpose of Section 4.7. Most police officers did, in fact, phase out employment prohibited by Section 4.7. In light of this history, the Ethics Commission concluded that limiting an additional grace period for (the officer’s name) to 60 days was appropriate.
The Commission believes that its policy of strict enforcement of Section 4.7 serves an important purpose. This policy helps preserve public confidence that officers are carrying their official duties in a fair and impartial manner. The policy also acts as a protection for police officers by preventing situations which create conflicts between an officer’s official obligation to protect life and property and the demands of a private employer who is paying for the same services. Based on experience, the Commission has found that the strict application of Section 4.7 has served to accomplish these important purposes.
Waivers to Section 4.7 can only be granted if the requirements of Section 19A-8(b) of the Montgomery County Public Ethics Law are met. That subsection provides:
"After receiving a written request, the Commission may grant a waiver of the prohibitions of subsection 19A-12(b) or section 19A-13 if it finds:
(1) the waiver is needed to ensure that competent services to the County are timely and available;
(2) failing to grant the waiver may reduce the ability of the County to hire or retain highly qualified public employees; or
(3) the proposed employment is not likely to create an actual conflict of interest."
The Commission is not aware of any evidence in this case which would support a waiver.
The Commission hopes that you will find this letter responsive to your inquiries.
Date of Issue: June 28, 1990
You have requested that we review and comment on certain advice which you have rendered to an HOC Commissioner. We have carefully reviewed your letter of July 20, 1990 and the additional information you subsequently provided pursuant to our request.
As we understand the facts, this commissioner is purchasing services from some of the same entities who are under contract to provide other services to HOC. We further understand that HOC contracts under $50,000 are awarded directly by its Executive Director, and that only contracts in excess of $50,000 come to the Commission for a vote.
As its legal counsel, you rendered advice to the HOC Commissioner regarding this matter. Your advice was that to avoid the appearance of impropriety, any Commissioner should recuse in those instances in which a contract is in existence between the contractor recommended to be approved by the Commission staff and which may also be under contract to any entity in which the Commissioner has an interest or which may be negotiating for such a contract with an entity in which the Commissioner has a business interest.
The Ethics Commission agrees that the best course of action would be recusal on all matters which come before the HOC and which involve persons or companies that also independently contract with the Commissioners’ businesses. The Commission further adds that specific waivers could be sought on individual matters prior to voting or acting on them. In addition, the Commission cautions you that our concerns extend beyond contract modification, enforcement, and termination.
Date of Issue: November 26, 1990
The Ethics Commission has reviewed your memorandum of November 5, 1990 and commends you for your decision not to share authorship with Malcolm Pirnie, Inc. in an article regarding the Oaks Landfill. Since you have had contract responsibility for this company in your county position, such a collaboration could have been perceived as a conflict of interest.
You have requested that the Commission provide you with guidance for the future when considering the possibility of writing technical papers jointly with: (1) firms doing business with the County; or (2) firms that have no active County contracts but which may submit proposals on future County projects.
In response, the Commission offers the following guidelines for your future consideration. You need not seek a waiver for articles or papers you write alone (sole authorship) if:
1. There is no remuneration.
2. Any use of a county title is pre-approved by the CAO;
3. There is no use of information that is not readily accessible to the general public.
All co-authorship opportunities must be reviewed by the Ethics Commission on a case-by-case basis. Similarly, all projects for which payment is received must be treated as secondary employment.
Date of Issue: December 24, 1990
The Ethics Commission has considered your request for permission to submit an article for publication and remuneration to "Dataperfect Users’ Newsletter" concerning your applications of Dataperfect software for various county uses. Your memo explained that you would not divulge "actual data" from this project, but would include "samples of screens". You further indicated your interest in writing future articles for other publications.
As a county employee in the Department of Information Systems and Telecommunications, it is part of your job responsibilities to develop efficient methods for the compilation and utilization of data necessary for the orderly operation of the county government. When an employee, in the course of county employment, develops a computer program, template, macro, formula or other similar piece of intellectual property, that property belongs to the county. Accordingly, you may not either sell, disclose or give away this property without following proper county procedures for the sale or disposal of county property. We understand that these procedures were not followed in this case.
As to future publications, the Ethics Commission must review each on a case-by-case basis, and provides the following additional guidelines:
1. any project for which you are paid must be treated as secondary employment for which approval must be granted;
2. any use of your county title must be pre-approved by the Chief Administrative Officer;
3. use or disclosure of information not readily accessible by the general public is prohibited.
Date of Issue: December 24, 1990