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Montgomery County Ethics Commission
Text of Advisory Opinions - 1991

ADVISORY OPINION 91-9 [1991-1]

Thank you for your memorandum of January 4, 1991 concerning the application of the Ethics Law with regard to the award of Contract #15473. This contract is for the removal of dead trees from public rights-of-way in the Suburban Taxing District.

According to the information you have provided, the lowest bidder on this contract is the (name of company). This company is owned and operated by (person’s name), a former employee of the Montgomery County Department of Transportation, Division of Urban Maintenance. You have also indicated that, as a county employee, (person’s name) never held a management or decision-making position. He left County employ in 1984 to start his own tree removal business.

 

Your concern about the award of this contract to (person’s name) is that he may have had an unfair advantage over other bidders because he is knowledgeable of county practices as well as the fact that, if requested, PEPCO will remove portions of trees which are above power lines, thereby reducing a contractor’s costs.

Your memorandum also states, however, that all bidders were invited to a "voluntary" pre-bid meeting, and that those who attended "were made aware of items of this nature".

Based on all the foregoing, the Ethics Commission does not find any violation of 19A-13 (relating to former employment) or 19A-15 (relating to the use of confidential information), and knows of know reason why you would be prohibited from recommending award of IFB #15473 to the (company name).

Thank you for bringing this matter to the Commission’s attention. If you have any further questions, please contact our office.

Date of Issue: January 28, 1991

ADVISORY OPINION 91-10 [1991-2]

The Montgomery County Ethics Commission has received and reviewed your request for advice regarding compliance with the Ethics Law.

You have informed the Commission that several years ago, as a favor to a friend, you developed several patient profiles for use in a computer program simulating patient triage procedures. We understand that this work was performed by you "at home while off duty without compensation in any form".

This computer program is now being sold, and you have been offered a royalty of 15% of [ed.: to] 50% the net profits. This royalty is being offered in recognition of your past contribution to the program, and not for any present or future services. Furthermore, you have represented to the Commission that you will have "no involvement" in the marketing or sales of this program. You have further provided the Commission with a promotional brochure and some biographical data for our review.

The Ethics Commission has reviewed these three pages of material and finds no violation of 19A-14 therein. Please recognize that this opinion does not sanction any other use of your name and title for this or other purposes.

Based on the foregoing, the Ethics Commission has found no violation of law and advises you that you may accept the royalties under the conditions stated in your letter.

Date of Issue: January 28, 1991

ADVISORY OPINION 91-11 [1991-3]

The Ethics Commission has received and reviewed your memorandum of February 12, 1991.

In that memo, you indicated that next month your division will issue an RFP for third party claims administration services for Montgomery County and that it is possible that Consolidated Risk Management Service, Inc. will bid on this contract. You stated that you had worked for this company until April, 1987 when it conducted business under the name Yeager and Co., and that you know some of the people currently working for this organization since its purchase and renaming by Blue Cross Blue Shield of Virginia. You indicated that you "do not own stock, receive no pension and have no other contact with the company at this time."

Due to your past association with Yeager and Co., you have requested that the Commission determine whether you would have a conflict of interest if you: (1) participated in the bid process and evaluation of proposals as a member of the Qualification and Selection Committee; and (2) administered the contract if it is awarded to Consolidated Risk Management Service, Inc.

Section 19A-11(a)(1)(B) of the Ethics Law states:

" . . . Unless permitted by a waiver, a public employee must not participate in:

(1) any matter that affects, in a manner distinct from its effect on the public generally, any:

(B) business in which the public employee has an economic interest."

Since you have advised us that you have no current or future economic interest in Consolidated Risk Management, Inc., no conflict of interest exists and you do not require a waiver of this provision of the Ethics Law. Accordingly, you may participate in both the bid process as well as the administration of the contract if it is awarded to Consolidated Risk Management, Inc.

Date of Issue: March 20, 1991

ADVISORY OPINION 91-12 [1991-4]

The Ethics Commission has received your request for advice dated March 27, 1991. Your request relates the following facts: In December, 1990, you left County employment as the head of a department in the Executive Branch of County government (Department). Since that time, you have begun a "small consulting business" which utilizes your personal expertise in a technical field that forms the basis for the operation of the Department. While you were head of the Department, many of the firms operating in the area of your expertise had contracts administered by the Department.

You have asked the Ethics Commission if the Ethics Law prevents you from contracting with the firms that had a contract with the Department while you were its head.

Section 19A-13(b) provides:

"For one year after the effective date of termination from County employment, a former public employee must not enter into any employment understanding or arrangement (express, implied, or tacit) with any person or business that contracts with a County agency if the public employee:

* * *

(2) had official responsibility concerning a contract with the person or business (except a non-discretionary contract with a regulated public utility)".

Section 19A-13(b) prohibits a former employee from entering into an employment arrangement with a business that is currently contracting with the County. Your request for advice does not seriously address this issue. For purposes of this response, the Commission has assumed that the firms with which you are interested in providing consulting services are currently contracting with the County.

Section 19A-13(b) applies if you, as a public employee, had "official responsibility" over a contract that involved the business with which you would like to enter into an employment arrangement. Under the Montgomery County Procurement Regulations, Section E.7, each department is responsible for administering contracts originated by that department. Contract administration includes monitoring contract performance and making recommendations for termination of a contract, if necessary. As the head of the Department, the Ethics Commission believes that you have had official responsibility, within the meaning of Section 19A-13(b), for each contract administered by the Department.

Section 19A-13(b) prohibits a former public employee from entering into an "employment understanding or arrangement" with certain businesses. Section 19A-4(g) defines employment as ". . . engaging in an activity for compensation." Section 19A-4(d) defines compensation as ". . . any money or a thing of value, regardless of form, . . . that an employer pays or agrees to pay for services rendered." Based on these definitions, the Ethics Commission concludes that entering into a contract with a business to provide consulting services is an employment understanding within the meaning of Section 19A-13(b).

Accordingly, the Ethics Commission concludes that for a period of one year after the effective date of your termination of County employment, you may not enter into a consulting contract with a business that contracted with the Department while you were its head.

Under Section 19A-8, the Ethics Commission is authorized to grant a waiver from the prohibitions of Section 19A-13 if the Commission 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."

If you would like the Ethics Commission to consider a waiver that would allow you to contract with specific firms, you should write the Commission requesting a waiver and provide the following information:

1. The identity of the firm with which you wish to contract.

2. The nature and value of the contract the firm held with the department when you were its head.

3. The nature of your involvement in the administration of the contract, or its oversight, when you were employed by the County.

4. Whether you propose to work for the business on a matter involving a present County contract or to contact directly an employee of the Department.

5. A description of the nature of the consulting services you propose to provide the business.

6. The amount of consideration you expect to receive from the contract with the business.

The Commission trusts that this advice has been responsive to your inquiry. I you have further questions, please do not hesitate to contact the Ethics Commission.

Date of Issue: May 15, 1991

ADVISORY OPINION 91-13 [1991-5]

The Ethics Commission has reviewed your request for advice dated March 27, 1991. This request was submitted jointly by the head of an Executive Branch department and a Division Chief of that department. The Division Chief has indicated a desire to enter into a contract for architectural and construction management services to build a house the Division Chief intends to use as a personal residence. The Division Chief intends to contract with a firm that does business from time to time with the Department.

The Ethics Commission has reviewed Article III of the Montgomery County Public Ethics Law which sets out rules of conduct for public employees. The Commission concluded that the Ethics Law does not prohibit the Division Chief from entering into a contract with an entity that is doing business with the Chief’s department.

The Commission, however, would like to bring to your intention Section 19A-11(a)(2)(E). That section provides that if a public employee’s contract with a specific business could result in a conflict between private interests and public duties, the employee may not participate, as a public employee, in a matter that involves that business. The Commission has concluded that the type of contract described in the request for advice would result in a conflict under 19A-11(a)(2)(E). Accordingly, the Division Chief should not participate in any matter, as a public employee, that involves as a party the business that is providing architectural and construction management services to the Chief, unless a waiver is first obtained from the Ethics Commission.

The Commission trusts that this advice has been responsive to your inquiry. If you have any further questions, please do not hesitate to contact the Ethics Commission.

Date of Issue: May 15, 1991

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ADVISORY OPINION 91-14 [1991-6]

The Ethics Commission has received your request for advice dated March 25, 1991. Your request relates the following facts: You are the head of a principal office of the Executive Branch of County Government. The Democratic Central Committee nominated you, along with four others, to serve on the Montgomery County Commission on Redistricting. On January 29, 1991, the County Council appointed you to serve on the Commission. The purpose of the Commission on Redistricting is to submit a plan to the Council proposing new Councilmanic election districts.

You have asked if your membership on the Commission violates the Ethics Law, violates a Council resolution, or constitutes an appearance of a conflict of interest.

Montgomery County Charter Section 104 requires that Council district boundaries be redrawn every ten years. Section 104 charges the Council with the responsibility of appointing a commission to propose a redistricting plan. The plan submitted by the Commission is adopted if the Council fails to establish another plan within a certain period of time. Section 104 requires the Council to appoint three members from a list of five names submitted by the Central Committees of each major political party.

The office which you head is designated as a principal office or department in the Executive Branch of government by Section 1A-201. As a department head, you are appointed by the County Executive and serve at the pleasure of the County Executive. You are outside the County merit system. See, Sections 215 and 401 of the Montgomery County Charter. As a department head, you are clearly accountable to the County Executive, not the County Council.

Article III of the Montgomery County Public Ethics Law sets out rules of conduct for public employees. The Ethics Commission has reviewed each section within Article III and finds that your participation as a member of the Commission on Redistricting does not violate any provision of the Montgomery County Public Ethics Law.

The Ethics Commission understands that your second question concerning a "Council resolution" refers to Resolution No. 11-108, adopted on February 24, 1987. That resolution concerns the appointment of County employees to boards, committees, and commissions.

Section 19A-3 of the Montgomery County Public Ethics Law provides:

"If any other County statute or regulation relating to conflicts of interest . . . is more stringent than this law, the more stringent provision applies."

The question is whether Resolution No. 11-108 is either a "statute or regulation" which would bring it within the purview of the Ethics Law. Clearly, the Resolution is not a County statute. The Ethics Commission finds that the Resolution is not a regulation either, because:

(1) Section 2A-15 sets out the process for adopting a County regulation. That process requires publication of the regulation in the County Register and following a specific procedure for the review and approval of a County regulation. The process was not followed in the adoption of Resolution No. 11-108.

(2) Regulations are commonly understood to mean a restriction or rule that imposes a control or direction. Ballentine’s Law Dictionary (3rd Ed.). Paragraph 3(c) of Resolution 11-108 provides, "An appointment or confirmation is not void because it is contrary to this resolution." On the basis of this provision, the Ethics Commission concludes that Resolution 11-108 would not qualify as a regulation as that term is commonly understood because it is not mandatory.

Accordingly, the Ethics Commission does not believe that Resolution 11-108 is an ethical standard that has been made a part of the County ethics law by Section 19A-3.

Section 19A-7 authorizes the Ethics Commission to give advice concerning the application of the ethics law to the person requesting the opinion. Therefore, the Ethics Commission believes that it is beyond its purview to comment on the relationship between your appointment to the Commission on Redistricting and Resolution No. 11-108.

As indicated, the ethics law establishes specific rules of conduct for public employees to follow. So long as those rules are strictly followed, the Commission has no power to render an advisory opinion regarding whether or not your membership on the Commission on Redistricting creates an appearance of a conflict of interest.

The Ethics Commission trusts that it has responded to your inquiries. If you have further questions, please do not hesitate to contact the Commission.

Date of Issue: May 15, 1991

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ADVISORY OPINION 91-15 [1991-7

The Ethics Commission has reviewed your request for advice dated April 1, 1991. Your request related the following facts: You are the president of an independent fire corporation operating in Montgomery County. The fire corporation would like to give an employee of the Department of Fire and Rescue Services (DFRS) a $200 cash award. The award is being given for recent work the firefighter completed in repairing the brakes to a fire truck. The firefighter is regularly assigned by DFRS to the fire corporation that wishes to make the award. According to the senior career officer assigned to that corporation, the firefighter performed this repair work during regularly scheduled work time.

The Ethics Commission concluded that, under the circumstances of this case, the proposed $200 cash award would amount to a gift, rather than compensation for outside employment.

Under Section 19A-16(b), an employee of a County agency may not accept a gift from a business that is regulated by the department with which the employee is affiliated. The Commission noted that, under Section 19A-4(b), an independent fire corporation is a business for purposes of the Ethics Law; the Commission further noted that this business is regulated by DFRS.

An employee, however, may accept a gift from a regulated business if the gift is exempted under Section 19A-16(b)(6). Paragraph (6) exempts the gift after finding in writing that the gift would not be detrimental to the impartial conduct of the business of a County agency. Under the circumstances of this case, the Commission concluded that this one-time gift of $200 to the firefighter would not be detrimental to the impartial conduct of the business of DFRS or the County. Accordingly, the firefighter may accept the $200 cash award.

The Commission trusts that this advice has been responsive to your inquiry. If you have any further questions regarding this matter, please do not hesitate to contact the Ethics Commission.

Date of Issue: May 15, 1991

ADVISORY OPINION 91-16 [1991-8]

The Ethics Commission has received a request for advice dated April 5, 1991. The request relates the following facts: The director of a department of the Executive Branch of government submitted this request concerning an employee of the department. The employee has submitted a letter of resignation in order to return to work for a former employer. That employer provides services to Montgomery County under a contract administered by the department. The employee, however, has not been involved in any way with work performed by the business in question. The request has asked whether Section 19A-13 would prohibit the employee from working for this firm.

Section 19A-13(b) states:

"For one year after the effective date of termination from County employment, a former public employee must not enter into any employment understanding or arrangement (express, implied, or tacit) with any person or business that contracts with a County agency if the public employee:

(1) significantly participated in regulating the person or business; or

(2) had official responsibility concerning a contract with the person or business (except a non-discretionary contract with a regulated public utility)."

The Commission has concluded that since the employee has not been involved in any way with work performed by the business in question, Section 19A-13 would not apply to the employee. Accordingly, the employee may accept employment with this business.

The Ethics Commission trusts that it has been responsive to the inquiry. I you have any further questions, please do not hesitate to contact the Commission.

Date of Issue: May 15, 1991

ADVISORY OPINION 91-17 [1991-9]

The Ethics Commission has received your request for advice dated April 3, 1991. Your request relates the following facts: The County agency with which you are affiliated has received an invitation to send a representative to a seminar to be held in Europe in mid-May 1991.

The seminar will present an educational program on international investing. Since the agency with which you work is charged with the obligation of investing funds, the information to be presented at the seminar is directly related to the mission of the agency.

The seminar is sponsored, at least in part, by an entity that has a contract with the agency with which you are affiliated. The sponsors of this seminar will assume the costs associated with attending the seminar. The Commission understands that this invitation was unsolicited and that the agency would like you to attend as part of your regular work duties.

Section 19A-16(e) allows a public employee to accept an unsolicited gift made for the benefit of a County agency. Accordingly, the Commission has concluded that you may attend this seminar.

The Ethics Commission trusts that it has responded to your inquiry. If you have any further questions, please do not hesitate to contact the Commission.

Date of Issue: May 15, 199

ADVISORY OPINION 91-18 [1991-10]

The Ethics Commission has received your request for advice dated May 19, 1991. Your request relates the following facts: You are the head of a principal office in the Executive Branch of County Government. An employee of your office approached you about buying an automobile that you own. You responded that you thought it was inappropriate to sell the employee the vehicle. Subsequently, a "close personal friend" of the employee expressed an interest in purchasing the automobile in an "as is" condition. You have asked whether selling your automobile to this friend would constitute a violation of the County’s ethics law or the spirit of the County’s ethics law.

Article III of the Montgomery County Public Ethics Law sets out rules of conduct for public employees. The Ethics Commission has reviewed each section within Article III and finds that under the circumstances related in your request for advice selling your automobile to a close personal friend of an employee under your supervision does not violate any provision of the Montgomery County Public Ethics Law.

Section 19A-7 of the Montgomery County Public Ethics Law authorizes the Ethics Commission to give advice concerning the application of the ethics law to the person requesting the opinion. As long as the rules of conduct established in the ethics law are strictly followed, the Commission has no power to render advisory opinions regarding whether particular conduct might create an appearance of a conflict of interest.

The Ethics Commission trusts that it has responded to your inquiries. If you have further questions, please do not hesitate to contact the Commission.

Date of Issue: June 7, 1991

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ADVISORY OPINION 91-19 [1991-11]

By letter dated June 17, 1991, and supplemented by a memorandum dated June 18, 1991, you asked the Ethics Commission for advice regarding your plans to engage in consulting work through your son’s company after your retirement from the County.

You have provided the Commission with the following information: Your job with Montgomery County required you to: (a) review plans and plats for technical compliance with the road code and other policies of the Department of Transportation (DOT); (b) coordinate comments from DOT and present them to plan applicants and the Maryland–National Capital Parks and Planning Commission; and (c) coordinate comments from outside agencies such as the State Highway Administration. Occasionally, you have signed permits in the absence of other staff on behalf of DOT. You were not involved in awarding contracts or monitoring contracts within DOT.

You intend to engage in consulting work through your son’s landscaping company. You will: (a) assist engineers, developers, and attorneys through the development process; (b) obtain permits including plan approvals and permits from DOT; (c) review plans and permits intended to be submitted to Montgomery County and the MNCPPC; (d) conduct surveys under your professional land surveyor’s license; and (e) engage in general landscaping work.

Section 19A-13(b) of the Montgomery County Public Ethics Law states:

"For one year after the effective date of termination from County employment, a former public employee must not enter into any employment understanding or arrangement (express, implied, or tacit) with any person or business that contracts with a County agency if the public employee:

(1) significantly participated in regulating the person or business; or

(2) had official responsibility concerning a contract with the person or business (except a non-discretionary contract with a regulated public utility)."

The language of Section 19A-13(b) clearly indicates that this application is limited to an employment understanding with a person or business that is presently contracting with a County agency. Accordingly, you may provide consulting services through your son’s landscaping business to engineers, developers, and attorneys with regard to the development and permitting process if those clients are not currently contracting with the County agency.

If you intend to take on as a client an entity that is contracting with a County agency, the Commission believes that you must first request a waiver from the Commission. In order to grant a waiver from Section 19A-13(b), the Commission must find:

"(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."

This letter confirms the oral advice already given to you. If you have any questions regarding this advice, please contact the Commission.

Date of Issue: 8/13/91

ADVISORY OPINION 91-20 [1991-12]

The Ethics Commission has received your request for advice dated August 6, 1991. Your request relates the following facts: You are the Chief of a Division of a principal office that provides health related services directly to clients. A private donor has donated hardware and software development to automate data collection for a program that is operated by the Division you head. The estimated value of the gift is $500,000. The Chief Administrative Officer has approved this gift. The donor has requested to remain anonymous. You have indicated that the donor does not do business with Montgomery County.

As part of the software development, the Division’s staff meets with the donor and provides user input and ideas for software development. The donor has indicated a desire to give monetary awards of up to $100 each to those County employees who present creative ideas for software development. You have asked whether, under the ethics law, the employees of the Division may accept such an award.

Finally, you indicated that you were uncertain as to who would own the software after its development. Accordingly, it is uncertain whether the donor would be able to market the software to other entities. For purposes of this advice, the Commission has assumed that the donor will retain ownership of the software and would be able to license it to other users for compensation.

Section 19A-16(c)(4) of the Montgomery County Public Ethics Law provides that a public employee must not accept a gift from an individual or organization that "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." The Commission finds that Section 19A-16(c)(4) applies to this situation because: (1) the Division’s employees are providing input and ideas to the donor as part of the employee’s official duties; and (2) the input provided by the employees could substantially affect an identifiable economic interest of the donor that is different from that of the general public.

Accordingly, the Commission finds that it would not be appropriate for employees of the County to accept monetary awards from the donor.

The Ethics Commission trusts that it has responded to your inquiry. This opinion confirms the oral response previously given to you. If you have further questions, please do not hesitate to contact the Commission.

Date of Issue: 9/25/91

ADVISORY OPINION 91-21 [1991-13]

The Ethics Commission has reviewed your memorandum dated September 6, 1991, requesting an advisory opinion on whether you could accept a check from the American Public Works Association (APWA) for presenting the best technical paper at an APWA conference.

Based on the memorandum submitted by you and oral representations made by you to Commission staff, the Commission understands the facts to be as follows: You are a member of APWA as a direct result of County employment. APWA invited you to present a paper at the APWA conference in San Francisco in August 1991. You prepared the paper, in part, on County time and also attended the conference on County time. The paper concerned the County’s successful contracting experience in contracting out services previously performed by County employees.

Your paper was selected out of over 150 papers as the best technical paper and APWA presented you with a plaque and a check for $500. You were not aware prior to submitting your paper that an award might be granted. You have asked whether you may retain the $500 award.

Section 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:

(1) is registered, or must register, as a lobbyist on a matter that is or could be considered by the County agency with which the public employee is affiliated;

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

(3) owns or operates a business that is regulated by 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.

Since it appears to the Commission that APWA does not fall within any of the categories of organizations listed in 19A-16(c), the Commission concludes that you may accept the $500 award.

The Commission notes, however, that even if the County does contract with APWA through, for example, paying for membership costs, the Commission believes that you would be allowed under the ethics law to retain the $500 award. Section 19A-16(d)(8) authorizes a public employee to accept an award for achievement even if the award is given by an organization listed in 19A-16(c).

In reaching the determination that the $500 payment is an achievement award, the Commission has relied heavily on the fact that there was no prior agreement between you and APWA for the payment of compensation (contingent or otherwise) in exchange for your submission of the paper. In fact, you have indicated that you were unaware of the possibility that an award might be given. Accordingly, the Commission finds, in the alternative, that the $500 payment is an award for achievement and that you may accept it under Section 19A-16(d)(8).

The Commission trusts that you will find this advisory opinion responsive to your inquiry. If you have any further questions regarding this matter, please do not hesitate to contact the Commission.

Date of Issue: 10/15/91

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ADVISORY OPINION 91-22 [1991-14]

The Ethics Commission has reviewed your request for an advisory opinion dated September 23, 1991. You have provided the Commission with the following facts: You work part-time for the County as a nurse. At the time you became a County employee, you continued employment as a nurse for a local hospital (hospital). In July 1991, the County entered into a contract with the hospital to provide services to the County performing the functions of the program that you work for in the County. As a result, you will be performing essentially the same duties as a County employee and, though not simultaneously, as an employee of the hospital.

You have orally informed Commission staff that the Commission could discuss this request with your Department Head.

Section 19A-12(a) of the Montgomery County Public Ethics Law provides that a public employee "must not engage in any other employment unless the employment is approved by the Commission." Section 19A-12(b) provides that a public employee must not be employed by an entity that contracts with the County agency with which the employee is affiliated unless the Ethics Commission grants a waiver. Finally, Section 11B-52 provides that an entity must not simultaneously employ a County employee and contract with the County.

Under these circumstances, the Commission finds that your employment relationship with the hospital violates the ethics law.

If you decide to apply for outside employment approval and a waiver to work for the hospital, it would be necessary for the Commission to waive the prohibition set out in Section 19A-12(b).

Your request should address one or more of the following criteria which the Commission must find under Section 19A-8(b) before a waiver of 19A-12(b) may be granted:

"(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." (Emphasis added)

In addition, in order for you to continue your employment with the hospital, it would be necessary for the Commission to waive the prohibition set out in Section 11B-52. Your request should address all of the following criteria which the Commission must find under Section 19A-8(a) before a waiver of 11B-52 may be granted:

"(1) the best interests 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." (Emphasis added)

In this latter regard, the Commission would be most interested in your Department Head’s position on this matter.

The Commission trusts that you will find this opinion responsive to your inquiry. If you have questions regarding this matter, please do not hesitate to contact the Commission.

Date of Issue: 10/15/91

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ADVISORY OPINION 91-23 [1991-15]

The Ethics Commission has reviewed your request for an advisory opinion which was received on September 30, 1991. Your request provides the following facts: Until June 1991, you were employed by the County and worked in a Department that regulates and licenses service providers. You were a Program Manager for a licensing program. After you left County employment, you were recruited by and accepted employment with a management organization that operates two of the facilities that are licensed under the program you worked in as a County employee. In fact, you had previously met the general manager of your present employer when he applied for licenses for the two facilities. Finally, you have indicated that your present employer does not contract with the County.

Section 19A-13(b) of the Montgomery County Public Ethics Law provides:

"For one year after the effective date of termination from County employment, a former public employee must not enter into any employment understanding . . . with any . . . business that contracts with a County agency if the public employee: (1) significantly participated in regulating the person or business . . . ." (Emphasis added)

Since, as you have indicated, your present employer does not contract with the County, the Ethics Commission finds that 19A-13(b) would not prohibit your employment.

The Commission would like to remind you, however, that Section 19A-13(a) prohibits a former public employee from assisting, for compensation, any party other than the County in a "case, contract, or other specific matter for 10 years after the last date the employee significantly participated in the matter as a public employee." Accordingly, you may not participate, on behalf of your employer, in obtaining a license from the Department for the two facilities that were licensed while you were a County employee.

The Commission trusts that you will find this advisory opinion responsive to your inquiry. If you have any further questions regarding this matter, please do not hesitate to contact the Commission.

Date of Issue: 10/15/91

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ADVISORY OPINION 91-24 [1991-16]

The Ethics Commission has reviewed your letter of August 21, 1991, in which you question under what circumstances a County employee may solicit gifts on behalf of a charitable organization during official work hours.

Section 19A-7 of the Montgomery County Public Ethics Law provides that any person subject to the ethics law may ask the Commission for an advisory opinion on the meaning or application of the law to that person. The Commission understands that you are a County employee and has determined that the question you have asked may have application to you.

Your letter asserts: County firefighters desire to solicit donations from the public during official work hours for the benefit of the Muscular Dystrophy Association. The Ethics Commission had previously determined that such activity would violate the County’s ethics law and Charter; on the other hand, County employees currently participate in the Montgomery County Employees Charity Campaign during official work hours.

In 1988, the Ethics Commission received a request from the Fire Chief of an independent fire corporation to use paid firefighters and firefighting equipment to conduct door-to-door solicitations for donations to support the independent fire corporation. The Ethics Commission determined that such a solicitation would violate Section 19A-11 of the ethics law and declined to grant a waiver to allow such a solicitation. In 1988, Section 19A-11 prohibited an official or employee from soliciting any gift.

In January 1990, the Council adopted Bill 33-89 which generally revised the Montgomery County Public Ethics Law. Bill 33-89 went into effect in April 1990. Old Section 19A-11 became Section 19A-16 and now provides, in pertinent part:

"(a) A public employee must not solicit a gift

* * *

(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;

* * *

(b) However, a public employee may solicit a gift:

(1) from public employees during official work hours, or at a County agency, for a charitable drive that is approved by the County Executive or (for public employees of the legislative branch) the President of the Council, when the solicitation is part of the public employee's official duties;"

Accordingly, the ethics law now authorizes the County Executive to approve charitable drives that use the services of County employees during official work hours. The Commission notes that the current Montgomery County Employees Charity Association is participating in this drive.

Finally, in your letter you ask about the use of County firefighters to perform work outside of the employees’ job description. Your letter cites no facts in connection with this inquiry. The Commission, however, would like to note that issues regarding work outside of a job description are general personnel matters which are beyond the authority of the Ethics Commission to address. Section 19A-14(c), however, does prohibit a public employee from using work time for the benefit of another unless the use is available to the public generally or authorized by law, regulation, or administrative procedure.

The Commission hopes that you will find this advisory opinion responsive to your inquiry. If you have further questions regarding these matters, please do not hesitate to contact the Commission.

Date of Issue: 10/21/91

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ADVISORY OPINION 91-25 [1991-17]

The Ethics Commission has reviewed your request for advice concerning whether corporate securities held in a spouse’s individual retirement account (IRA) should be reported on a public employee’s financial disclosure statement. Based on your request for advice, the Commission understands the facts to be as follows:

You are required to file a public financial disclosure statement under Section 19A-17. Your spouse owns a rollover IRA managed by an investment management company. The management company makes all investment decisions and, in fact, does not allow you or your spouse to make investment decisions. Furthermore, neither you nor your spouse attempts to direct the investment decisions of the management company. The management company sends your spouse account statements showing transactions made during the previous month. The management invests the assets of the IRA in corporate securities.

Section 19A-19 requires a public employee to disclose on the employee’s financial disclosure statement "all economic interests in any business." Section 19A-4(b) defines a business as any "for profit or non-profit enterprise, including a corporation, general or limited partnership, sole proprietorship, joint venture, association, firm, institute, trust, or foundation." Section 19A-4(j) defines an economic interest as "any source of income or any other legal or equitable economic interest . . . which is owned or held, in whole or in part, jointly or severally, directly or indirectly." Finally, Section 19A-20 requires a public employee to treat as the employee’s own property, an economic interest of a spouse.

You have asked if: (a) You must list each security in which the management company has invested the assets of the IRA and each transaction that occurred in the account during the previous year; or (b) you may report the account with the management company and the value of the account at the end of the reporting period?

The Commission believes that under the facts provided to us your spouse’s IRA is substantially equivalent to an economic interest in a mutual fund. Accordingly, the Commission concludes that you should disclose the IRA on your financial disclosure statement and the value of the IRA at the close of the reporting period. You do not need to report each corporate security held in the IRA during the reporting period. In reaching this conclusion, the Commission finds the following factors of particular importance:

1. The Management company does not allow you or your spouse to direct investment decisions;

2. Neither you nor your spouse, in fact, attempts to direct investment decisions; and

3. The accountings made by the management company reflect transactions that occurred the previous month. Therefore, at any given time, neither you nor your spouse can be certain what securities are held in the IRA.

The IRA should be disclosed on Part III of the financial disclosure statement which concerns business holdings. A copy of Part III is attached for your reference. The Commission suggests the following reporting format:

Box 1—NAME OF BUSINESS—indicate the name of the management company and the title of the account;

Box 3—ADDRESS OF PRINCIPAL PLACE OF BUSINESS—Give the address of the management company;

Box 4—NATURE AND AMOUNT OF INTEREST—Indicate the value of the account at the end of the reporting period;

Box 5—CONDITIONS AND ENCUMBRANCES—Indicate that the account is an IRA;

Box 6—PERCENT OF BUSINESS OWNED—Indicate 100%;

Box 7—DATES OF ACQUISITIONS/TRANSFERS—Indicate the date the account was acquired;

Boxes 8, 9, and 10 would be used only if all or a portion of the assets are transferred out of the account.

The Commission trusts that this advice has been responsive to your inquiry. If you have further questions, please do not hesitate to contact the Commission.

Date of Issue: 12/17/91

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ADVISORY OPINION 91-26 [1991-18]

The Montgomery County Ethics Commission has reviewed your request for advice dated October 27, 1991. Your request relates the following information:

You retired from the Montgomery County government in August 1990. During that time, you worked for two departments that provided health related services to the public. Since your retirement, you have been asked by a management consulting firm to assist it in studying a program being administered by one of the departments you were affiliated with while a public employee. In fact, the study involves a program with which you were apparently involved as a public employee. The management firm has not previously held a contract with the County.

You have asked if the Montgomery County Public Ethics Law allows you to accept employment with this firm and, if not, you have requested a waiver.

Section 19A-13(a) prohibits a former employee from accepting employment to assist any party, other than the County, in a "case, contract, or other specific matter for 10 years after the last date the employee significantly participated in the matter as a public employee." Since the project you would work on involves the evaluation of a program, the Commission believes that you would not be working on a specific case, contract, or other matter in which you significantly participated as a public employee. Accordingly, the Commission finds that Section 19A-13(a) would not prohibit your proposed employment.

Section 19A-13(b) provides that a former employee for one year after leaving public employment must not enter into employment with any person or business that contracts with the County if the public employee:

"(1) significantly participated in regulating the person or business; or

(2) had official responsibility concerning a contract with the person or business (except a non-discretionary contract with a regulated public utility)."

Since you have not been involved in regulating or exercising responsibility over a contract with the management consulting firm that would employ you, the Ethics Commission concludes that Section 19A-13(b) does not apply to your proposed employment.

For these reasons, the Ethics Commission concludes that you may accept employment with this management consulting firm for the work outlined without violating the Montgomery County Public Ethics Law.

If you have any questions regarding this matter, please contact the Commission.

Date of Issue: 12/17/91

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.

 

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