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Montgomery County Ethics Commission
Text of Advisory Opinions - 1992

Advisory Opinion 1992-1]

ADVISORY OPINION 92-27

You are an employee of the Housing Opportunities Commission (HOC). As an HOC employee, you are assigned, among other duties, the task of providing staff support to Revenue Sharing Network, Inc. (RSN). This staff support involves helping RSN to raise funds through solicitations which are used to support the STAR Program. The STAR Program provides summer camp experiences for indigent children who live in HOC housing.

The Ethics Commission has reviewed your request for advice; you have provided the Commission either in writing or orally with the following facts:

 

 

RSN is a 501(c)(3) corporation organized under the laws of Maryland. According to RSN’s corporate charter, the purposes for which RSN is organized include:

(1) To devise, formulate, initiate, develop, evaluate, plan, manage and administer programs intended to assist and advise the Housing Opportunities Commission of Montgomery County ("HOC").

(2) To provide the resources for needs identified by HOC and for such other services as may be necessary to encourage the economic self-sufficiency of the residents of HOC housing properties.

(3) To encourage and receive the donation of goods, equipment, material, supplies and other valuable donations to be used to benefit needy residents of HOC in providing programs designed to break the cycle of poverty for economically disadvantaged or other needy persons.

(4) To provide such other services as may be necessary to encourage the economic self-sufficiency of the residents of HOC housing properties.

RSN has no paid employees and no expenses. HOC employees provide the necessary staff support for RSN’s fund raising activities. In fact, RSN’s office address is located at HOC headquarters.

As operated, RSN’s sole function is to raise financial support, either through grants or solicitation of donations, to support the needs of HOC housing residents. Funds raised through RSN’s solicitation efforts are used to support the STAR Program.

The brochures you have supplied the Ethics Commission regarding the STAR Program clearly link HOC and RSN together. In fact, one brochure entitled "The Capitol Steps" has printed on the bottom of the front page "Resources Sharing Network of the Housing Opportunities Commission." The HOC insignia is clearly visible on each of the brochures.

Section 19A-14(b) provides that a person must not use an official County agency insignia in connection with any private enterprise unless expressly authorized by the Chief Administrative Officer.

Section 19A-14(c) provides that a public employee must not use a government facility, property or work time for the use of another entity.

Section 19A-16 prohibits a public employee from soliciting a gift during official work hours, at a government agency, or while identifiable as a government employee. Section 19A-16(b)(2), however, allows a public employee to solicit "from any person, during official work hours, or at a county agency, for the benefit of a county agency if the solicitation is authorized by the County Executive in an executive order . . . " (Emphasis added.)

The Commission believes that, under the circumstances you have described, RSN is equivalent to HOC for purposed of applying the provisions of Sections 19A-14(b) and (c) and 19A-16(b)(2). RSN is organized specifically to assist HOC and is, in fact, operated in that manner. RSN has no employees of its own and no expenses. All funds raised by RSN go to support HOC programs. As long as these factors remain unchanged, the Commission believes that RSN is substantially equivalent to HOC for purposes of Section 19A-14(b) and (c) and 19A-16(b)(2). Accordingly, the Commission believes that:

1. HOC staff may, if authorized by appropriate supervisors, assist RSN in raising funds without violating Section 19A-14(c);

2. HOC may utilize its insignia in connection with activities sponsored by RSN; and

3. HOC staff may assist RSN in raising funds if the fund raising activity is approved in an Executive Order under Section 19A-16(b)(2).

If you have any further questions regarding this matter, please feel free to contact the Commission.

Date of Issue: 2/19/92

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[Advisory Opinion 1992-2]

ADVISORY OPINION 92-28

The Ethics Commission has reviewed your January 12th memorandum in which you object to that portion of the Commission’s previous advice to you that your financial disclosure statement must reflect the value of an IRA account owned by your spouse.

On December 17, 1991, the Ethics Commission issued an advisory opinion to you concerning an IRA account owned by your spouse and managed by an investment company. The Commission concluded that under the circumstances provided to the Commission by you, the IRA account was "substantially equivalent to an economic interest in a mutual fund." The Commission concluded 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."

Your January 12th memo argues that the value of the IRA account should not be reported because "The ethics laws are not designed to indicate values of personal or family holdings as a wealth indicator . . . "

The Commission disagrees. Section 19A-19(b) requires each financial disclosure filer to disclose the "nature and amount" of the economic interest held in any business. In light of this express statutory language, the Ethics Commission believes you must indicate the value of the IRA account at the end of each reporting period. This will result in your spouse’s IRA account being treated in the same manner for financial disclosure purposes as if it were a mutual fund.

The Commission trusts you will find this memorandum responsive to your inquiry.

 

Date of Issue: 2/19/92

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[Advisory Opinion 1992-2A]

[ADVISORY OPINION 92-28A]

May 12, 1992

Dear [name withheld]:

The Montgomery County Ethics Commission has received and reviewed your letter of March 31, 1992. According to your letter, you are a commissioner of the Montgomery County Housing Opportunities Commission (HOC) and a former member of the law firm Weiner, McCaffrey, Brodsky & Kaplan, P.C. (Weiner, McCaffrey).

You have been performing your duties as a Commissioner of HOC under a waiver granted to you by the Ethics Commission in October, 1986. This waiver had five conditions which, if met, would allow you to participate in HOC matters without a conflict of interest. These conditions were imposed due to your employment with Weiner, McCaffrey which followed your appointment to HOC and because HOC Commissioner Brodsky is a partner in the firm of Weiner, McCaffrey.

Since April 1, 1992 you have been employed as a sole practitioner attorney and, in consideration of that new employment, you are requesting an approval of your new employ under the Ethics law. In addition, you are suggesting conditions which you feel are appropriate to this requested outside employment approval.

After reviewing the former approval granted by the Ethics Commission and your newest request, the Ethics Commission, approves your new outside employment under Section 19A-12(a)(1) with the following conditions:

1. You will not represent any client in any matter before the HOC.

2. You will not participate as an HOC Commissioner in any matter in which a client has an interest in a matter before the HOC, and that you will disclose, on the record of the HOC, that you are not participating; provided that, in the event that your recusal will render the HOC unable to act on the matter, you may disclose the real or apparent conflict and participate in the matter before the Commission under Section 19A11-b(1).

3. You will not represent a client in connection with any matter, whether or not the matter is before the HOC, if the HOC has any interest in the matter.

The Ethics Commission trusts that this letter is responsive to your request and welcomes any questions that you may have in regard to this decision.

Sincerely,

Barbara McNally

Administrative Specialist

BMM:11

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[Advisory Opinion 1992-3]

ADVISORY OPINION 1992-29

The Ethics Commission has reviewed your request for an advisory opinion dated April 23, 1992. The Commission understands that the facts forming the background to your requests are as follows:

The Board of Education has identified a vacant tract of land (Site) on which the Board proposes to build a new high school. The Site is currently zoned for residential use but the owner has applied for a zoning change to a mixed residential, commercial, and office use.

The Education Committee of the Council has recommended that the Council approve an appropriation of $25,000 to allow the Board of Education to study the feasibility of building a high school on the Site. If the study indicates that building a high school on the Site is feasible, the Council may then be asked to decide whether to appropriate funds to acquire the Site and construct a high school on it.

You have indicated that you are a member of the County Council and that your personal residence, which you own, is approximately two blocks from the Site. You have further explained that your residence is separated from the Site by eight single-family homes and a six-lane divided highway. Finally, you have told the Commission that you do not know if construction of a high school on the Site will affect the value of your property.

You have asked the Commission if the Montgomery County Public Ethics Law allows you to participate in the discussions and vote on the appropriation of funds for: (1) the feasibility study; and (2) any subsequent decision to appropriate funds to acquire the Site and build a high school on it.

Section 19A-11(a) 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:

(A) property in which the public employee holds an economic interest;"

The Commission believes that you may participate without conflict of interest in the decision to fund a feasibility study. The Commission notes that the purpose of the study is to obtain information which may or may not lead to subsequent Council action with regard to acquiring and building on the Site. Accordingly, the Ethics Commission finds that an information study will not affect, in a manner distinct from the public generally, your property.

The Commission believes, on the other hand, that Section 19A-11(a) prevents you from participating as a Councilmember in any matter that directly affects the Site, including a decision to appropriate funds to acquire the Site or build a high school on it. Since your residence is only two blocks from the Site, the Commission feels that a decision affecting development on the Site would impact the value of your property in a manner distinct from its effect on the public generally.

The Commission would be happy to review this conclusion if you provide the Commission with information that development of the Site would have no economic impact on your property. The Commission would find the professional opinion of a qualified appraiser especially significant in this regard.

In the alternative, if you conclude that your responsibility as an elected official requires your participation in this matter, you may request a waiver from the Commission. Under Section 19A-8, the Commission is authorized to grant a waiver from the prohibitions of Section 19A-11 if the Commission 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."

Your request for a waiver should address each of these criteria.

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

 

Date of Issue:6/3/92

____________________________________________________

[Advisory Opinion 1992-4]

ADVISORY OPINION 92-30

The Ethics Commission has reviewed your request for an advisory opinion dated April 27, 1992. The Commission understands that the facts forming the background of your request are as follows:

You have been asked to serve as a member of the Board of Trustees of Suburban Hospital. You will not receive compensation for your services as a member of the Board of Trustees.

Suburban Hospital has at least one contract with Montgomery County; this contract is administered by the Department of Addiction, Victim, and Mental Health Services.

You are affiliated with the Department of Finance. You supervise the Department of Finance employees who: (1) disburse funds to County contractors upon presentation of proper documentation by the department administering the contract; and (2) certify the availability of funds under Section 11B-5 which is a prerequisite to the County entering into any contractual obligation. The Department of Finance, however, does not directly administer any contracts with Suburban Hospital.

You have asked if the Montgomery County Public Ethics Law prohibits you from accepting a position as a member of the Board of Trustees of Suburban Hospital.

Section 19A-12 provides that a public employee must not engage in any other employment unless the employment is approved by the Ethics Commission. Section 19A-4(g) defines employment as, " . . . engaging in an activity for compensation." Accordingly, the Ethics Commission concludes that you may accept a non-compensatory position as a member of the Board of Trustees of Suburban Hospital under the ethics law.

Section 19A-11(a)(2)(A) provides that a public employee must not participate in any matter that involves an entity of which the employee is a trustee. Accordingly, if you accept a position as a member of the Board of Trustees of Suburban Hospital, you must not participate as a public employee in a matter that involves the hospital unless permitted by a waiver issued by the Ethics Commission.

If you have any questions regarding this advisory opinion, please contact the Ethics Commission.

 

Date of Issue:6/3/92

________________________________________________________

[Advisory Opinion 1992-5]

ADVISORY OPINION 92-31

The Ethics Commission has reviewed your request dated May 15, 1992, to investigate the involvement of the Montgomery County Housing Opportunities Commission (HOC) in Rezoning Application G692 filed by (names of person, organization).

You allege that HOC has agreed with (name of organization) to support the Rezoning Application in exchange for a donation of 16 residential units. You ask the Ethics Commission to void the agreement between HOC and (name of organization), expunge from the Rezoning Application hearing record HOC’s testimony, and bar HOC from any further participation in the Rezoning Application.

The Montgomery County Public Ethics Law governs the conduct of individual public employees; the ethics law does not govern policy decisions made by a government agency unless the decision involves a matter relating to the private financial affairs of the government decision-maker. The Ethics Commission has carefully reviewed your letter and does not find that it alleges facts sufficient to state a violation of the ethics law. Accordingly, the Ethics Commission declines to pursue this matter.

If you have further questions regarding this matter, please do not hesitate to contact the Commission.

Date of Issue:7/1/92

[Advisory Opinion 1992-6]

ADVISORY OPINION 92-32

IBM has offered to give the Montgomery County Police Department (MCPD) a 60 channel Dictaphone Model 5000, master logging recorder. IBM has requested that MCPD formally request, in writing, this equipment. You have asked if MCPD may accept this gift and write the letter requested by IBM. This memorandum confirms the oral advice given by the Ethics Commission staff in response to your inquiry.

Ethics Commission staff has spoken with representatives of IBM who have indicated that the recorder requires no special support equipment, software, or maintenance agreement.

The Ethics Commission interview a representative of MCPD at its meeting on June 3, 1992, who indicated that there is a departmental need for the 60 channel recorder. Finally, the Commission understands that the County has contracts with IBM and that some of these contracts are administered by MCPD.

Section 19A-16(e), Montgomery County Code (1984), provides that a public employee may accept an unsolicited gift to a County agency even if the gift is from an entity that does business with the County agency with which the public employee is affiliated.

Accordingly, the Ethics Commission concludes that a public employee may accept on behalf of MCPD the recorder from IBM; however, the letter requested by IBM must clearly indicate that IBM’s offer to donate the recorder was not solicited by the County.

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

Date of Issue:7/1/92

[Advisory Opinion 1992-7]

ADVISORY OPINION 92-33

The Ethics Commission has reviewed your memorandum of April 24, 1992, requesting advice. Based on your memorandum, the Ethics Commission understands the background facts as follows:

Part of your job duties involve administering the County’s Cable Television Franchise Agreement with Cable TV Montgomery (CTM). In 1987, the County approved the cable television system design submitted by CTM. In approving CTM’s system design, the County relied on the advice of an independent engineering consultant. The approved cable system uses home subscriber converters manufactured by General Instrument Corporation (GI).

GI is on the verge of issuing an initial offering of 22,000,000 shares of common stock. Based on your stock broker’s advice, you indicated that you wish to purchase "several hundred shares" of GI stock.

Section 19A-11 prohibits a public employee from participating in a matter that affects a business in which the public employee has an economic interest. The question arises, therefore, whether you may invest in GI stock and continue to perform your duties for the cable television office.

In analyzing this issue, the Commission finds the following factors persuasive:

1. CTM, not the County, chose to use converters manufactured by GI and the system was approved by the County on the advice of an independent engineering consultant.

2. Purchasing a few hundred shares out of 22,000,000 shares of common stock will give you a negligible ownership interest in GI.

3. There is no direct contractual relationship between the County and GI.

In light of these circumstances, the Ethics Commission believes that you may purchase a few hundred shares of GI stock and continue to perform your functions as administrator of the County’s Cable Television Franchise Agreement with CTM without a conflict of interest.

The Ethics Commission would like to caution you, however, that you may not participate in any matter that involves, as a party, GI without first obtaining a waiver from the Ethics Commission. The Ethics Commission would also like to remind you that you must report your GI stock on your Financial Disclosure Statement.

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

[Advisory Opinion 1992-8]

ADVISORY OPINION 92-34[a]

By memorandum dated June 30, 1992, you requested the Ethics Commission to advise you if you may accept an invitation by the United Nations Association, National Capital Area (UN Association) to sign a letter inviting County organizations and individuals to become co-sponsors of a public celebration of United Nations Day in October. If necessary, you have requested a waiver allowing you to sign letters requesting various organizations and individuals to sponsor the UN Day celebration.

The following background has been provided by you: According to the draft letters soliciting sponsorship of the UN Day celebration, the observance will be held in Rockville on County property. The letter indicates that the UN Day celebration is jointly sponsored by the Montgomery County Government and the UN Association. Organizations are asked to contribute $15 or more to the UN Association to "help defray expenses." Individuals may become co-sponsors with a $5 minimum contribution. The solicitation letter appears to be targeted toward public interest groups and religious organizations. You have stated that "few of the organizations receiving the letter will be businesses with a financial interest in County procurement or other governmental decisions." Finally, you have indicated that co-sponsoring the UN Day celebration promotes the humanitarian and peacemaking activities of the United Nations which is "very much in the best interest of the County and all of its citizens."

Section 19A-14 of the Montgomery County Public Ethics Law provides:

(a) A public employee must not intentionally use the prestige of office for private gain or the gain of another. Performing usual and customary constituent services, without additional compensation, is not the use of prestige prohibited by this subsection.

* * *

(c) A public employee must not use any County agency facility, property, or work item for personal use or for the use of another person, unless the use is:

(1) Generally available to the public; or

(2) Authorized by a County law, regulation, or administrative procedure.

The Ethics Commission believes that your participation as County Executive in seeking sponsors for the UN Day celebration constitutes the use of the prestige of your office for the gain of another that is prohibited by Section 19A-14(c). Accordingly, a waiver is required in order for you to participate as County Executive in the solicitation to obtain sponsors for the UN Day celebration and to use a County facility to benefit the UN Association.

Section 19A-8 authorizes the Ethics Commission to grant a waiver from the prohibitions of Section 19A-14 if the Commission finds:

(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 applying these criteria, the Ethics Commission finds the following factors persuasive:

1. The Commission agrees that promoting the humanitarian and peacemaking activities of the United Nations is in the best interest of the County and its citizens.

2. The request for a contribution to the UN Association to defray the expenses of the UN Day Celebration is for a relatively nominal amount. Furthermore, the solicitation is not targeted toward entities that do business with the County. Accordingly, the Commission believes that there is virtually no potential for a conflict of interest to arise if this waiver is granted.

3. There appears to be no basis for concluding that granting this waiver will provide you with an unfair advantage over other members of the public.

Accordingly, the Commission grants you a waiver to sign the draft solicitation letters to obtain sponsors for the UN Day celebration and to hold the celebration on a County facility.

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

Date of Issue: 9/9/92

[Advisory Opinion 1992-9]

ADVISORY OPINION 92-34[b]

The Ethics Commission has received your request for advice dated August 3, 1992, in which you relate the following facts: You are an employee in the Department of Information Systems and Telecommunications (DIST). Part of your responsibilities includes selecting computer hardware and software products for use in various County agencies. You have indicated a desire to purchase stock of corporations that may provide computer hardware and software products to the County; these corporations include IBM, Wang, Hewlett Packard, Lotus Development, Microsoft, EASEL, and Gupta. You indicate that a decision by Montgomery County to purchase products made by these vendors would not have any measurable impact on the price of their stock or the viability of the corporation. You have asked for authorization to invest in stock of these companies.

Section 19A-11 provides that a public employee must not participate in a matter that affects a business in which the public employee has an economic interest. Section 19A-11(c) limits the meaning of economic interest to:

(1) Any source of income, direct or indirect, if the employee:

(A) Received more than $1,000 from that source of income in any of the last 3 years;

(B) Is currently receiving more than $1,000 per year from that source of income; or

(C) Is entitled to receive at least $1,000 in any year in the future from that source of income;

(2) A business in which the public employee owns more than 3%;

(3) Securities that represent ownership or can be converted into ownership of more than 3% of a business; and

(4) Any other economic interest worth more than $1,000.

The Ethics Commission finds that Section 19A-11 does not prohibit you from purchasing stock in corporations that provide computer hardware and software to the County. Section 19A-11 does prohibit you, however, from participating as a public employee in any decision regarding purchase of material from a corporation after you have purchased stock in that corporation if the value of your economic interest in the corporation exceeds the thresholds established in Section 19A-11(c).

The Commission would also like to point out to you that Section 19A-15(a) prohibits a public employee from using confidential information for personal gain or the gain of another. Accordingly, if a public employee knew that Montgomery County was about to enter into a substantial contract that might affect the value of a business, the public employee is prohibited from acquiring an economic interest in the business until the information about the pending contract became public.

Section 19A-8 authorizes the Commission to grant a waiver from the provisions of Section 19A-11 if the Commission finds each of the following:

(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.

Accordingly, if you purchase stock in a corporation that supplies computer hardware or software to the County, you could request a waiver from the Ethics Commission to authorize you to participate as a public employee in decisions relating to the purchase of goods from that business. The Commission must respond to such waiver requests on a case-by-case basis. With respect to each waiver request, the Commission would need to know at least the following information: the nature and value of the proposed procurement by the County; your role in the procurement; the quantity and value of your holdings in the company; your percentage of ownership in the company; and the gross income of the company.

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

Date of Issue: 10/15/92

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[Advisory Opinion 1992-10]

ADVISORY OPINION 92-35

The Ethics Commission has reviewed your request for advice concerning whether or not serving on the board of directors of the Montgomery County Human Services Foundation, Inc. (Foundation) would violate the Montgomery County Public Ethics Law. The Commission understands the factual background of your request to be as follows:

The Department Heads for the Department of Family Resources (DFR), the Department of Addiction, Victim, and Mental Health Services (DAVMHS), the Department of Health (DH), and the Department of Social Services (DSS) have formed the Foundation, a non-profit, non-stock Maryland corporation. The Foundation is organized, according to its Articles of Incorporation, for the exclusive purpose of "supporting and benefiting the Health and Human Services Secretariat under the auspices of Montgomery County Government’s Department of Family Resources. The corporation will serve as an intermediary agency for the County Government to facilitate the brokering, contracting, delivering and payment of services associated with program initiatives that support and preserve the integrity of the family." In particular, the Foundation is intended to assist the County in implementing the State System Reform program. The Foundation is intended to provide families with health care and other support necessary for the preservation of the family unit.

The by-laws of the Foundation will provide that the Board of Directors must include the Department Heads of DFR, DAVMHS, DH and DSS. The by-laws will also provide that these four Directors will be appointed by the County Executive to represent the public interest. Finally, under the by-laws, Foundation Directors will not be entitled to receive any compensation.

It is anticipated that the Foundation will enter into a non-competitive contract with the County under Section 11B-42 to provide services for the System Reform program. The contractor or contracts will be administered by DFR, DAVMHS, DH, and/or DSS. As the head of one of these departments, you have asked if serving as a member of the Board of Directors of the Foundation and administering a contract with the Foundation on behalf of the County constitutes a conflict of interest under the Montgomery County Public Ethics Law.

Section 19A-11(a)(2)(A) prohibits a public employee from participating in a matter if the public employee knows that a party to the matter is a business in which the public employee holds office as a director or trustee. Section 19A-4(b) provides that the term business, as used in the ethics law, includes a non-profit enterprise including a corporation, trust, or foundation. Section 19A-11(b)(4), however, provides that the prohibition against an employee participating in a matter involving an entity in which the employee holds an office does not apply if the County Executive appoints the public employee to serve as an officer or director of that business to represent the public interest.

Since you would be appointed to the Board of Directors of the Foundation by the County Executive to represent the public interest, the Commission finds that you may participate in administering a contract with the Foundation without violating Section 19A-11(a)(2)(A).

The Commission trusts you will find this advice responsive to your inquiry. If you have further questions, please contact the Commission.

Date of Issue: 12/14/92

[Advisory Opinion 1992-11]

ADVISORY OPINION 92-36

The Ethics Commission has reviewed your request for advice dated October 13, 1992. The Ethics Commission understands the facts which form the basis for your request are as follows:

In the spring of 1992, several Montgomery County police officers attended an honor guard seminar held by the Baltimore County Police Department. At the seminar, a representative of a funeral home emphasized the importance of using a casket for training purposes and spoke about the possibility of having a casket donated by a funeral home. Accordingly, a police Sergeant who attended the seminar asked another police officer to look into the possibility of obtaining a donated casket from a local funeral home. As a result of a request made by this police officer to a funeral home, a casket was donated to the Police Department for use by the police honor guard. The funeral home has indicated to the Police Department that the casket has no present value because of its age. You have asked if the Police Department may retain the donated casket for use by the Police honor guard.

Section 19A-16 generally prohibits a public employee from soliciting any gift during official work hours or while identifiable as a public employee. Section 19A-16(b)(3) provides that a public employee may solicit a gift during official work hours for the benefit of a County agency if the solicitation is authorized by the County Executive in an Executive Order. While the facts related in your opinion request are silent on this matter, the Ethics Commission assumes, for purposes of this advisory opinion, that the casket was solicited by a police officer during official work hours or while identifiable as a public employee without benefit of an Executive Order authorizing the solicitation. Based on these assumed facts, the casket was improperly obtained.

Section 19A-16(f) provides that a public employee who received a gift which the employee should not accept under the ethics law must either return the gift to the donor or transfer the gift to the County. Since the casket has been transferred to the control of the Police Department, the Ethics Commission believes that under Section 19A-16(f) the casket may be retained by the County for County use.

The Commission trusts that you will find this advisory opinion responsive to your inquiry. If you have further questions regarding this matter, please contact the Ethics Commission.

Date of Issue: 12/14/92

[Advisory Opinion 1992-12]

ADVISORY OPINION 92-37

The Ethics Commission has reviewed your request for advice dated November 11, 1992. Based on your request, the Commission understands the facts which form the basis of your inquiry are as follows:

You are a Special Assistant to the County Executive appointed under Charter Section 401. Among your duties, you act as a senior adviser to the County Executive and the Department of Environmental Protection (DEP) on solid waste disposal matters. The County is currently considering whether solid waste should be disposed within Montgomery County or if an out-of-County disposal option should be selected.

Your request for advice indicates that your brother-in-law’s firm has been retained by Browning Ferris Industries (BFI), a solid waste disposal business, to provide advice and services in promoting a grass roots education campaign in support of out-of-County solid waste disposal. Your brother-in-law’s firm is being paid by BFI on an hourly basis. You’ve indicated you have no economic relationship with your brother-in-law or his firm. Finally, the grass roots education campaign does not involve direct contact with the County government.

Section 19A-11 prohibits a public employee from participating in any matter that affects, in a manner distinct from its effect on the public generally, a business in which a relative has an economic interest, if the public employee knows about the relative’s interest. Section 19A-11(a)(2)(B) prohibits a public employee from participating in a matter if the employee knows that a party to the matter is a business in which a relative has an economic interest.

The compensation being paid by BFI to your brother-in-law’s firm does not depend upon which option the County selects. The services being performed by your brother-in-law’s firm for BFI are predecisional in nature; accordingly, continued work by the firm for BFI is not dependent upon the particular solid waste disposal option selected by the County. Therefore, the Ethics Commission does not believe your participation as a senior policy adviser to the County Executive and DEP on solid waste disposal matters creates a conflict of interest.

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

Date of Issue: 12/14/92

 

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