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Montgomery County Ethics Commission
Text of Advisory Opinions - 1994

[Advisory Opinion 1994-1]

MEMORANDUM

February 17, 1994

TO: [name withheld], Director
Department of Environmental Protection

FROM: Barbara McNally, Executive Secretary [initialed]
Montgomery County Ethics Commission

SUBJECT: Membership on the Board of Directors—Center for Watershed Protection

On February 15, 1994 the Ethics Commission reviewed your request for approval to serve on the Board of Directors of a nonprofit organization known as the Center for Watershed Protection.

As you have indicated in your request, (1) this organization’s work is scientific and educational in nature and will contribute greatly to local governments in developing, promoting and publicizing policies for watershed protection; (2) your involvement with the Center will be voluntary with no remuneration; (3) no lobbying by the Center is anticipated; and (4) the Center has not and will not be contracting with Montgomery County.

 

Based on the above representations, the Commission finds that there is no conflict of interest in your serving on the Board of Directors of the Center for Watershed Protection. Thank you for bringing this matter to the attention of the Ethics Commission.

__

[Advisory Opinion 1994-2]

MEMORANDUM

February 17, 1994

TO: [name withheld], Councilmember

FROM: Barbara McNally, Executive Secretary
Ethics Commission

SUBJECT: Request for waiver re Sewer Category Change 92A-URC-02

The Montgomery County Ethics Commission has received and reviewed your request for a waiver of the Ethics law to allow you to participate in a vote on Sewer Category Change application 92A-URC-02. You provided the following information:

You have indicated that the applicant for Sewer Category Change 92A-URC-02 is the Montgomery County Hospice Society. The purpose of this change is for the building of a residential hospice to be located in the Rockville area. Your husband is a member and past president of the Montgomery Hospice Foundation Board.

The Commission determined that your husband’s positions with the Hospice Board are strictly voluntary and that no financial interest or benefits are derived from his membership or the building of this residence. Based on this information, the Commission has determined that no waiver is necessary.

Thank you for bringing this matter to our attention.

 

[Advisory Opinion 1994-3]

 

MEMORANDUM

March 30, 1994

TO: [name withheld], Director
Silver Spring Government Center

FROM: Barbara McNally, Executive Secretary
Montgomery County Ethics Commission

SUBJECT: Request for Opinion/Waiver

 

You have requested an opinion/waiver from the Ethics Commission regarding whether you may serve on the Board of Investment Trustees while a member of the County’s retirement system.

The Commission has been advised by counsel that the membership of the Board of Investment Trustees requires that a county employee be appointed to this board. In consideration of this mandate, the Commission believes that your participation does not create a conflict of interest and does not require a waiver of the Ethics law. If you have further questions, please don’t hesitate to contact our office.

BMM:dw

 

[Advisory Opinion 1994-4]

MEMORANDUM

April 12, 1994

TO: [name withheld], Councilmember
Montgomery County Council

FROM: Jay L. Cohen, Chair [initialed]
Montgomery County Ethics Commission

RE: Request for Waiver

The Ethics Commission has reviewed your request for a waiver from certain requirements of the ethics law. Based on your request, the Ethics Commission understands the facts as follows.

You have asked for a waiver to allow you to submit your 1993 Financial Disclosure Statement without listing any of the wedding gifts you received when you married in June 1993. In the Commission’s memorandum to you dated July 14, 1993, the various provisions of the reporting requirements in the Ethics Law concerning the receipt of gifts and the reporting of gifts in a Financial Disclosure Statement were reviewed in detail. The Commission also invited you to submit any additional information that you felt would assist the Commission in reviewing your waiver request. Having received no additional material, the Commission has reviewed the original information provided by you and has considered the pertinent sections of the Ethics Law.

Based on this review, the Ethics Commission finds that it must deny your request for a waiver to submit your Financial Disclosure Statement without listing any of your wedding gifts. This decision is based on the fact that the disclosure of the gifts you have received is mandated by law, and that this Commission has no authority to release you from that legal obligation.

Section 19A-17(a)(1) of the Montgomery County Code provides that members of the County Council "must" file Financial Disclosure Statements. In addition, §19A-19 provides precise descriptions of the "information" which "must" be contained in the disclosure statements, including detailed rules identifying which gifts must be reported and the types of information which must be reported. See §19A-19(d) of the Montgomery County Code.

Although §19A-6(a)(9) allows the Commission to interpret the Ethics Law, no interpretation of §19A-19(d) could permit you to omit these wedding gifts from your Financial Disclosure Statement. Instead, it is clear that the reporting of these gifts is an express affirmative obligation imposed upon you by the Montgomery County Code. Moreover, while §19A-8 authorizes the Ethics Commission to grant waivers from various "prohibitions" contained in the Montgomery County Code, no provision appears in the Ethics Law that gives the Commission the power to waive specific affirmative obligations expressly imposed by the Code. Rather, the only power given to the Commission in this instance is the power to interpret the law and, upon receipt of a written request, to grant an extension of time for filing your financial disclosure statement. See § 19A-6(a) of the Montgomery County Code.

Based on the foregoing discussion, it is the decision of the Ethics Commission that your request for a waiver must be denied.

In completing the Financial Disclosure Statement the Commission would like to reiterate its previous guidance that gifts from relatives need not be reported, and that §19A-19(d)(2) permits the nondisclosure of certain gifts with a value of less than $50. Moreover, the gifts that must be reported require only the following information:

(a) the nature of each gift;

(b) the value of each gift by category:

(i) $50 or under;

(ii) $51 to $100;

(iii) $101 to $500;

(iv) above $500; and

(c) the person who gave the gift or directed, either directly or indirectly, that the gift be given.

§19A-19(d)(1) of the Montgomery County Code 1984, as amended. The Commission understands that the value of a particular gift may not be equal to the cost of the purchase and, therefore, does not anticipate that specific inquiries need to be made of your guests. Rather, the value typically is the fair market value or resale value of the item.

This waiver was denied by the Commission at its meeting on March 29, 1994. On April 6, 1994, Ethics Commission staff orally informed you of the denial of this waiver. If you believe you need additional time to complete your Financial Disclosure Statement, please address a written request to the Commission, pursuant to §19A-6(a) of the Montgomery County Code.

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

 

2602.JLC:rpc

cc: Barbara McNally, Administrative Specialist, Ethics Commission

 

[Advisory Opinion 1994-5]

MEMORANDUM

 

May 11, 1994

 

TO: [name withheld], Director
Department of [department name withheld]

FROM: Jay L.Cohen, Chairman [initialed]
Montgomery County Ethics Commission

RE: Request for Advisory Opinion

The Ethics Commission has considered your request for advice regarding the book you have written and plan to have published in May 1994. The following information was provided by you in support of your request.

In your memorandum dated January 27, 1994, you indicated that you have written a book entitled "[title withheld]" which you describe as a book about the success of Total Quality Management (TQM) in Montgomery County. You stated that you wrote this book because the County Executive had been asked by the County Council to provide a list of accomplishments resulting from the application of TQM principles within the County. By your memorandum, you requested permission to provide the publisher of the book with the names of individuals who may be interested purchasing the book, including County employees who have attended classes within the County and organizations for whom you have provided training. These individuals would thereupon be solicited by your publisher to purchase your book at a "reduced" price.

The Commission invited you to attend its meeting on March 29, 1994, to provide further explanation of your proposal. At that time, you stated that the book is a compilation of articles that you have written throughout your career concerning attitude and TQM principles. Included as a chapter in the book is the report that you prepared for the County Executive to submit to the County Council. You clarified that you brought this methodology to the County and obtained your training and knowledge from your experiences prior to County employment. Moreover, you stated that your drafting and editing of the book was performed during your own time, e.g., evenings and weekends. Finally, you explained that the publisher will market the book and that 40% of the income from sales will be provided to you, adding that you need to sell 5,000 books in order to recoup monies you have paid for the book’s publication.

Applicable Provisions of the Ethics Law

There are five separate provisions of the Ethics Law which directly relate to your planned publication and sale of "[title withheld]". Specifically, §§19A-12(a)(1), 19A-14(a), 19A-14(b), 19A-14(c), and 19A-15(a) apply to your request.

Generally, a public employee "[m]ust not engage in any other employment unless the employment is approved by the Commission." §19A-12(a)(1) of the Montgomery County Code 1984, as amended. Employment is defined as "engaging in any activity for compensation." §19A-4(f) of the Montgomery County Code.

Section 19A-14 of the Ethics Law further provides that:

(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.

(b) Unless expressly authorized by the Chief Administrative Officer a person must not use an official County agency title or insignia in connection with any private enterprise.

(c) A public employee must not use any County agency facility, property, or work time 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.

* * *

Pursuant to §19A-15(a) of the Ethics Law, a public employee must not disclose confidential information or use such information for personal gain or the gain of another. State law specifically includes employee names and addresses within its designation of confidential information, which may not be released to the public. See Md. State Govt. Code Ann. §§10-616 and 10-617 (personnel records are confidential; portions of public record containing employee names and addresses are confidential).

Finally, the Ethics Law contains two different provisions for the granting of waivers. The Ethics Commission may grant a waiver from the requirements of §19A-12 of the Ethics Law relating to secondary employment approval if it finds one of the following:

(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.

§19A-8(b) of the Montgomery County Code. The other four provisions, §§19A-14(a), 19A-14(b), 19A-14(c), and 19A-15(a), may be waived by the Commission only if it finds all 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.

§19A-8(a) of the Montgomery County Code.

Application of Ethics Law to Present Situation

For the following reasons, it is the opinion of the Ethics Commission that you must obtain both secondary employment approval and request a waiver of the Ethics Law before publishing and marketing the book as you have proposed.

The publication of the book, "[title withheld]", includes compensation and, as such, secondary employment approval is required by the Ethics Law. §19A-12(a)(1) of the Montgomery County Code. A waiver of the provisions of this section may be granted based upon establishment of at least one of the factors that appear in §19A-8(b) of the Montgomery County Code. The content of the book, and the various circumstances surrounding its publication, however, present several additional issues requiring that a waiver of the Ethics Law be requested.

First, the inclusion of the material prepared in response to the County Council’s request for information would result in a use of County facilities, property and work time for personal gain. This is prohibited by the Ethics Law absent the grant of a waiver. §19A-14(c) of the Montgomery County Code. Similarly, the provision of lists of individuals who have attended your classes, including County employees also derives from property of the County. In addition, State law designates the names and addresses of public employees to be confidential. See Md. State Govt. Code Ann. §10-616–§10-617. As such, the disclosure of the names and addresses of public employees, including attendees at training seminars, to the publisher is prohibited by the Montgomery County Ethics Law, which prohibits disclosure of confidential information for personal gain or the gain of another. §19A-15(a) of the Montgomery County Code. To obtain a waiver of this provision of the Ethics Law, you must establish each of the elements that appear in §19A-8(a) of the Montgomery County Code.

Second, the use of your position title in the book involves the use of the prestige of office for private gain and the use of an official title in connection with a private enterprise. §§19A-14(a) and 19A-14(b) of the Montgomery County Code. An official title may be used in connection with a private enterprise only if expressly authorized by the Chief Administrative Officer (CAO). §19A-14(b) of the Montgomery County Code.

The Commission, therefore, advises you to submit a secondary employment request and a request for a waiver in accordance with the provisions of the Ethics Law discussed herein. In addition to the general information required by §19A-8 of the Ethics Law, the Commission recommends that you include the following information with your request:

    • A copy of your request for CAO approval to print the book and receive compensation.
    • A copy of your request to the CAO for approval of the use of your County position title in the book and to include a notation that the book is published with the permission of the Montgomery County Government.
    • A copy of the CAO’s response to your request.
    • A list of the publications in which the articles appeared prior to this compilation, along with the dates of publication.

Moreover, the Commission advises you to include a copy of this advisory opinion along with your request for approval from the CAO to engage in this secondary employment and to use your official title, to assist the CAO in addressing the Commission’s concerns.

If you have any questions regarding this advisory opinion, please do not hesitate to contact the Commission.

2600.JLC.KLFH

cc: Barbara McNally, Administrative Specialist, Ethics Commission

 

[Advisory Opinion 1994-6]

[name withheld]

c/o Kenneth Tecler

Chef, Walsh & Tecler

May 11, 1994

Re: Request for Advisory Opinion

Dear [name withheld]:

The Ethics Commission has considered the request for an advisory opinion submitted on your behalf by Kenneth B. Tecler, Esquire, counsel to the Housing Opportunities Commission (HOC), of which you are a member.

The following information was provided in Mr. Tecler’s letter dated February 1, 1994. You serve as the Vice-Chair of the HOC. You are employed as the Executive Director of the National Association of Housing and Redevelopment Officials (NAHRO), which is a large association of organizations with an interest in the activities of the federal government and the Department of Housing and Urban Development (HUD) in housing matters. The membership of NAHRO includes 2500 governmental entities and 6500 members who are attorneys, developers, contractors, consultants, and housing experts. [In your current position], you provide assistance to the members but do not have regular contact on a daily basis with every member.

Recently, you recognized the names of two NAHRO members as potential bidders on an HOC project. To avoid a conflict of interest, you recused yourself from consideration of the matter. At this juncture, you have requested an advisory opinion as to whether you may participate in HOC matters involving members of NAHRO.

Applicable Provisions of the Ethics Law

Pursuant to §19A-11(a)(1)(B) of the Ethics Law:

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; . . . .

The definition of public employee includes a member of the HOC. §19A-4(m)(4) of the Montgomery County Code 1984, as amended.

Application of Ethics Law to Facts Presented

The conflict of interest that occurs in your situation derives from your participating in a decision involving an application by a member of NAHRO. Potentially, the grant of a project to the member could benefit your employer and, therefore, affect you in a manner distinct from the public generally. As a result, you would need a waiver of the Ethics Law to participate in the consideration of these projects.

To obtain a waiver, you must show that:

(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.

§19A-8(a) of the Montgomery County Code 1984, as amended.

The available information is insufficient for the Ethics Commission to grant a waiver at this time. Rather, the Commission must review a waiver request on a case-by-case basis. If you would like the Commission to reconsider your request for a waiver, the Commission suggests that you include the number of instances occurring in the course of a year in which recusal has become necessary, the amount of the contracts involved in those instances, the parties involved in the matter, and a description of the matter. In the meantime, you should continue to recuse yourself from matters in which you recognize that a member of the NAHRO is involved.

If you have any questions concerning this decision, please do not hesitate to contact the Commission.

Sincerely,

[signed]

Jay L. Cohen, Chairman

Montgomery County Ethics Commission

2601.JLC:KLF

cc: Kenneth B. Tecler, Esquire

Barbara McNally, Administrative Specialist, Ethics Commission

 

[Advisory Opinion 1994-7]

July 12, 1994

Confidential

 

RE: Request for Advisory Opinion and Waiver

Dear [name withheld]:

You have requested an advisory opinion and waiver from the Ethics Commission regarding whether you may represent a client before the Commission on Common Ownership Communities (COCOC), of which you are a member.

The background information you have provided reflects that you are a member of the COCOC, and you are a private attorney with a practice that includes representation of homeowners associations (HOAs) as clients. One of the HOAs has requested that you represent it in a matter that may result in a hearing before the COCOC. You have indicated that you would not be on the panel that would hear the case and that you would recuse yourself from any consideration of the case by the whole Commission. At the Ethics Commission’s meeting on June 7, 1994, you appeared and explained that the situation described herein is infrequent, having occurred only once in four years. You also noted that the entire Commission reviews questions involving COCOC’s jurisdiction.

Based upon the facts presented and the discussion of the applicable law that follows, the Ethics Commission has denied your request for a waiver to handle your client’s case before the COCOC.

Applicable Provisions of the Montgomery County Code

The COCOC is an administrative agency of the Montgomery County Government that is established by statute and codified in the Montgomery County Code 1984, as amended. The COCOC consists of 15 voting members, six of whom are members of professions associated with common ownership communities, such as attorneys who represent associations. §10B-3(a)(3) of the Montgomery County Code 1984, as amended. Among the duties of the COCOC is the ability to hear disputes between or among parties. §10B-9(a) of the Montgomery County Code. If a hearing is held, the panel consists of two COCOC members and one volunteer arbitrator, who serves as chair of the panel; if a suitable arbitrator is not available, the third panel member is selected from the COCOC. §10B-12 of the Montgomery County Code.

The Ethics Law provides in pertinent part:

[U]nless the Commission grants a waiver under subsection 19A-8(b), a public employee must not:

(1) be employed by any business that:

(A) is regulated by the County agency with which the public employee is affiliated; or

(B) negotiates or contracts with the County agency with which the public employee is affiliated; or

(2) hold any employment relationship that would impair the impartiality and independence of judgment of the public employee.

§19A-12(b) of the Montgomery County Code. The waiver provision to which this section refers states:

[A]fter 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.

§19A-8(b) of the Montgomery County Code.

Analysis

Based upon the Ethics Commission’s review of the information you have provided in conjunction with the applicable law, the Ethics Commission must deny your request for a waiver, because the required elements of §19A-8(b) of the Montgomery County Code have not been shown.

The Ethics Commission finds that the grant of a waiver is not necessary to ensure that timely and competent services are provided to the County, because this situation has presented itself only once in a four-year period. Similarly, the denial of the waiver request does not interfere with the County’s ability to obtain and retain qualified employees, because this is not a frequent occurrence.

Finally, the Ethics Commission finds that an actual conflict may occur as a result of the proposed employment/representation of your client before the COCOC. Although you have indicated your willingness to recuse yourself from any proceedings before the COCOC that involve your client, this would not remove the actual conflict that would occur in the event that the decision of the COCOC were appealed to the Circuit Court. Upon appeal, if you were to continue your representation, you would be taking a position adverse to the COCOC and the County, which creates an actual conflict of interest.

The decision to deny your request for a waiver, however, does not preclude you from advising your client and assisting with a settlement of the dispute. Rather, the Ethics Commission has denied your request for a waiver to permit you to appear before the COCOC when it conducts a hearing concerning your client.

If you have any questions, please do not hesitate to contact the Ethics Commission.

Sincerely,

[signed]

Jay L. Cohen, Chair

Montgomery County Ethics Commission

2686.JLC:rpc

 

[Advisory Opinion 1994-8]

MEMORANDUM

July 12, 1994

To: [name withheld], Director
Department [name of department withheld]

FROM: Jay L. Cohen, Chairman [initialed]
Montgomery County Ethics Commission

RE: Request for Advisory Opinion and Waiver

The Ethics Commission has considered your recent memorandum with which you included a letter from William H. Hussmann, Chairman of the Maryland–National Capital Park and Planning Commission. The Commission remains unable to provide a decision on your waiver request, because you have not provided the information delineated in its May 11, 1994, memorandum.

In that communication, the Ethics Commission described five sections of the Ethics Law that were implicated by your request to publish your book and the anticipated marketing of the book. The Ethics Commission further explained the means by which you could apply for a waiver of the Ethics Law and indicated that you also would need to obtain secondary employment approval. Toward this end, the Ethics Commission requested that you provide the following information along with any waiver request you chose to submit:

    • A copy of your request for CAO approval to print the book and receive compensation.
    • A copy of your request to the CAO for approval of the use of your County position title in the book and to include a notation that the book is published with the permission of the Montgomery County Government.
    • A copy of the CAO’s response to your request.
    • A list of the publications in which the articles appeared prior to this compilation, along with the dates of publication.

In addition, the Commission advised you to include a copy of this advisory opinion along with your request for approval from the CAO to engage in this secondary employment and to use your official title, to assist the CAO in addressing the Commission’s concerns.

The law requires CAO approval as a prerequisite to your private use of County property and/or your County title. Since Mr. Hussmann no longer is the CAO, he cannot grant you that approval. Accordingly, you need to address these issues to the current CAO, Eugene Lynch. Furthermore, you have not provided the information regarding the dates of publication of the individual articles that was also requested by the Commission.

As a result, the Commission has denied your request for a waiver. Should you decide to renew your request for a waiver, the information requested by the Commission in its May 11, 1994, memorandum to you must be included. If you have any questions regarding this advisory opinion, please do not hesitate to contact the Commission.

2685.JLC.rpc

cc: Barbara McNally, Administrative Specialist, Ethics Commission

 

[Advisory Opinion 1994-9]

MEMORANDUM

July 12, 1994

TO: [name withheld], Councilmember
Montgomery County Council

FROM: Jay L. Cohen, Chair [initialed]
County Ethics Commission

RE: Request for Advisory Opinion

You have requested an advisory opinion from the Ethics Commission concerning whether a waiver is needed for you to retain a law firm that participates in matters before the Montgomery County Council to perform personal services for you and your husband. The response to your request depends upon whether a conflict of interest exists or is reasonably likely to result from the firm’s performance of personal services for you.

Background

The pertinent information you have provided indicates that you are a member of the Montgomery County Council and you have consulted a local law firm for the preparation of personal items, such as a trust and other legal documents. You indicated that you will pay the normal and regular fees for the services provided by the firm. Several members of the law firm are registered with the Ethics Commission as lobbyists and appear regularly before the Montgomery County Council on various issues. For purposes of this opinion, the Commission assumes that the attorney who will prepare the personal documents for you is not one of the individuals who have registered as a lobbyist.

Applicable Law

The Montgomery County Code provides that:

[U]nless permitted by a waiver, a public employee must not participate in:

* * *

(2) any matter if the public employee knows or reasonably should know that any party to the matter is:

* * *

(E) any business or individual that is a party to an existing contract with the public employee or a relative, if the contract could reasonably result in a conflict between private interests and official duties . . . .

§19A-11(a)(2)(E) of the Montgomery County Code 1984, as amended.

Analysis

The Commission has determined that the law firm may perform personal legal services for you and your husband, because no conflict of interest exists. The section of the Ethics Law quoted above notes that a public employee may not participate in a matter involving a business or individual that has a contractual relationship with the employee "if the contract could reasonably result in a conflict between private interests and official duties . . . ." In the present situation, the attorney performing the preparation of legal documents for you and your husband is not one of the attorneys registered as a lobbyist and appearing before the Montgomery County Council. The matters being handled are purely personal and do not involve issues that may come before the Council. In addition, you will pay the normal fees associated with the performance of these services.

As a result, the Ethics Commission concludes that there is not a conflict of interest, because the preparation of legal documents for your personal use is not reasonably likely to result in a conflict. Inasmuch as no conflict exists, you need not disclose the performance of personal legal services when the firm appears before the Council, nor must you recuse yourself from deliberations on an issue when the firm has appeared before the Council.

If you have additional questions, please do not hesitate to contact the Commission.

2711.JLC.rpc

 

[Advisory Opinion 1994-10]

July 12, 1994

 

RE: Request for Waiver

Dear [name withheld]:

You have requested that the Ethics Commission grant you a waiver from §407 of the Montgomery County Charter to permit you to receive compensation for your service as a member of the Montgomery County Fire and Rescue Commission (FRC) in addition to your compensation as a Fire/Rescue Captain of the Montgomery County Department of Fire and Rescue Services (DFRS).

For the following reasons, the Ethics Commission has determined that no waiver is required.

Relevant Charter and Code Provisions

The Montgomery County Charter states:

No member of the Council and no officer or employee of the County whose salary is fixed, in whole or in part, by this Charter, the laws of the County, or its personnel regulations, shall be entitled, directly or indirectly, to any other salary, expenses, or compensation from the County for performance of public duties except expenses for travel and subsistence incident to the performance of official duties as prescribed by law.

§407 of the Montgomery County Charter. In addition, the Charter provides that:

No person whose compensation is paid in whole or in part by the County shall (1) act as an attorney, agent, broker, or employee for, or receive compensation or anything of value from any person, firm or corporation transacting business of any kind with, or engaging in litigation against the County, or any instrumentality thereof; (2) represent or serve any client in any manner if that client’s interest is adverse to that of the County, or in conflict with the person’s official duties. The Council shall prescribe by law standards and procedures for the implementation of this Section and for justified waivers from the provisions of this Section when such waivers are deemed to be in the best interest of the County after full public disclosure of all pertinent facts. The Council shall also prescribe by law penalties for violation of this Section.

§411 of the Montgomery County Charter.

For purposes of considering your request for a waiver, these provisions must be read in conjunction with the Montgomery County Code. The relevant sections of the Montgomery County Code state:

[T]he Commission may grant to a public employee or a class of public employees a waiver of the prohibitions of . . . Section 411 of the Charter . . . if it finds that:

(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.

§19A-8(a) of the Montgomery County Code 1984, as amended. The Ethics Law further provides:

[U]nless 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;

(B) business in which the public employee has an economic interest; or

(C) property or business in which a relative has an economic interest, if the public employee knows about the relative’s interest . . . . [§19A-11(a)(1)]

* * *

[P]aragraph (a)(1) does not apply to a public employee who is appointed to a regulatory or licensing body under a statutory provision that persons subject to the jurisdiction of the body may be represented in appointments to the body. [§19A-11(b)(3)]

§§19A-11(a)(1) and (b)(3), respectively, of the Montgomery County Code 1984, as amended.

The following provisions regarding the FRC are pertinent to the issues presented by your waiver request:

(a) Established; membership. There is hereby established a county fire and rescue commission to be composed of seven (7) members appointed by the county executive and confirmed by the county council. The members should come from various geographical areas of the county and have a variety of occupational backgrounds . . . At least one (1) member from a list of a minimum of ten (10) career, nonvolunteer firefighters submitted by organizations composed of career fire or rescue personnel should be considered for appointment . . . .

(d) Compensation. Compensation for commission members shall be established by the county council in the budget. A commission member who is a career employee of a corporation shall be entitled to compensation as a commissioner once a waiver is obtained from the ethics commission relieving the commission member from the provisions of section 411 of the county charter . . . .

§21-4B of the Montgomery County Code 1984, as amended.

Analysis

A review of these provisions in the context of recent legislation and a prior interpretation of §21-4B of the Montgomery County Code by the Ethics Commission suggests that no waiver of the Charter or of the Montgomery County Code is required.

Section 407. The language of §407 of the Charter emphasizes the receipt of additional compensation for the same duties. Although no details were provided explaining your specific duties as an employee of DFRS and the anticipated duties as a Commissioner of the FRC, it is assumed for purposes of this decision that the two assignments involve separate and distinct responsibilities. The Ethics Commission further assumes that you perform your FRC duties after your normal DFRS working hours or during a period of approved leave. As long as the respective assignments entail separate duties and responsibilities, the prohibition of §407 of the Montgomery County Charter does not apply. Rather, you will be receiving additional compensation for additional duties, not the same duties. In the event that the duties you perform in the two positions begin to coincide or become indistinguishable, a reevaluation of this conclusion may be required.

At this juncture, based upon the information provided to the Ethics Commission, it is the determination of the Ethics Commission that §407 of the Charter does not apply to your appointment to the FRC.

Section 411. The interpretation of the reference to §411 of the Montgomery County Charter in §21-4B of the Montgomery County Code involves a more complex analysis. The language of §21-4B requiring a waiver of §411 of the Charter was enacted prior to 1987 and applied during a time when the fire corporations employed firefighters independently of the Montgomery County employees. In 1987, however, the Montgomery County Council enacted Bill 42-87, which permitted the corporation firefighters to transfer to County employment with DFRS. Inasmuch as you hold a position as a career firefighter employed by Montgomery County, the terms of §21-4B do not apply to your appointment to the FRC and, therefore, no waiver of §411 of the Montgomery County Charter is needed.

Conflict of Interest. Ordinarily, the appointment of a firefighter, who is regulated by the FRC, to serve as a commissioner of the FRC would create a conflict of interest. §19A-11(a)(1) of the Montgomery County Code 1984, as amended. In this particular situation, however, the statute that establishes the FRC specifies that at least one member will be a career, nonvolunteer firefighter. §21-4B of the Montgomery County Code. As a result, your appointment is within the exemption from the conflict of interest provision that appears in §19A-11(b)(3) of the Montgomery County Code.

For these reasons, it appears that no waiver is required for you to serve on the FRC and receive compensation pursuant to your recent appointment. If you have any questions concerning this decision, please contact the Ethics Commission.

Sincerely,

[signed]

Jay L. Cohen, Chair

Montgomery County Ethics Commission

2684.JLC.rpc

cc: Barbara McNally, Administrative Specialist

 

[Advisory Opinion 1994-11]

MEMORANDUM

 

July 12, 1994

 

TO: [name withheld], Administrator
Montgomery County Board of License Commissioners

FROM: Jay L. Cohen, Chair[initialed]
County Ethics Commission

RE: Request for Advisory Opinion

You have requested an advisory opinion concerning whether the Office of the Board of License Commissioners (BLC) may accept up to two tickets per Commissioner and parking passes to attend the Kemper Open Golf Tournament.

The information you have provided reflects that tickers and parking passes have been sent to the BLC by the Tournament Players Club at Avenel, which hosted the Kemper Golf Tournament in 1994. The Club maintains a Class C, Country Club, Beer, Wine and Liquor License which is regulated by the BLC. The tickets have a value of approximately $30 per ticket and were made available to BLC staff and Commissioners.

Pursuant to the Montgomery County Ethics Law:

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

* * *

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

(3) owns or operates a business that is regulated by the County agency with which the public employee is affiliated . . . .

§19A-16(c)(2) and (3) of the Montgomery County Code 1984, as amended. This subsection does not apply to:

* * *

(3) items of personal property, other than cash, worth less than $10;

* * *

(5) gifts to a public employee who must file a public financial disclosure statement under subsection 19A-17(a), if the gift:

(A) is a courtesy extended to the office; and

(B) consists of tickets or free admission for the employee and one guest to, or meals and beverages served at, a charitable, cultural, civic, labor, trade, sports, or political event . . . .

§19A-16(d)(3) and (5) of the Montgomery County Code 1984, as amended.

A public employee in the BLC must file a public financial disclosure statement only if designated by the County Executive by Executive Regulation. §19A-17(a)(4) of the Montgomery County Code. Pursuant to Executive Regulation 103-92, only the Administrator of the BLC must file a public financial disclosure statement; all other employees and commissioners must file a confidential financial disclosure statement.

Inasmuch as the tickets exceed $10 in value and the staff and commissioners of the BLC do not file public financial disclosure statements, the Ethics Commission has determined that the tickets are a prohibited gift under the Ethics Law and may not be accepted by the staff or commissioners.

If you have additional questions, please do not hesitate to contact the Commission.

2712.JLC.rpc

 

[Advisory Opinion 1994-12]

MEMORANDUM

October 18, 1994

 

TO: [name withheld]
County Attorney

[name withheld]
Senior Assistant County Attorney
Team Leader, Contracts Team

FROM: Jay L. Cohen, Chair [initialed]
Montgomery County Ethics Commission

RE: Request for Advisory Opinion and/or Waiver

Your request for an advisory opinion and, if necessary, a waiver has been reviewed by the Ethics Commission. The following information was provided in support of your request.

The County Attorney recently realigned certain work assignments within the County Attorney’s Office and placed responsibility for tax assessment cases with the Contracts/Legislation Team. The Team Leader of the Contracts/Legislation Team (Team Leader) is responsible for supervising the attorneys assigned to handle the tax assessment cases and may act as lead attorney in those cases from time to time. The parties to tax assessment cases include the owner of the property, the State Department of Assessments and Taxation (SDAT), and occasionally the County. The Office of the County Attorney represents the County, and the Office of the Attorney General represents the SDAT. Each party advocates its own valuation of the property in question, and the County intervenes in some cases to defend the State’s valuation when large amounts of tax are at issue. In almost all of the cases in which the County participates, commercial real property is involved.

The Team Leader’s brother-in-law is in charge of the commercial assessment section in the local SDAT office. The commercial section has primary responsibility for setting the assessed value of commercial real property in Montgomery County. An assessment appeal is first decided by the local assessor for the SDAT. Thereafter, an appeal may be taken to the Property Assessment Appeal Board, the Maryland Tax Court, the Circuit Court, the Court of Special Appeals, and the Court of Appeals. The County usually does not become involved in an assessment matter until the case reaches the level of the Maryland Tax Court.

The Montgomery County Ethics Law provides in pertinent part that:

(a) 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:

* * *

(C) property or business in which a relative has an economic interest, if the public employee knows about the relative’s interest . . . .

* * *

(2) any matter if the public employee knows or reasonably should know that any party to the matter is:

* * *

(B) any business in which a relative has an economic interest, if the public employee knows about the interest . . . 

§§19A-11(a)(1)(C) and (2)(B) of the Montgomery County Code 1984. The Ethics Law defines relative to include a spouse’s siblings, §19A-4(n) of the Montgomery County Code 1994, and it defines business as:

[A]ny for-profit or non-profit enterprise, including a corporation, general or limited partnership, sole proprietorship, joint venture, association, firm, institute, trust, or foundation. Business does not include a County agency, but includes an independent fire department or rescue squad.

§19A-4(b) of the Montgomery County Code 1994. This definition of business is silent regarding whether an agency of the State is included or excluded from its scope. The Ethics Commission need not resolve this issue for purposes of this opinion, because it has concluded that no conflict of interest exists.

The Ethics Commission has determined that no waiver is necessary at this time, because there is no conflict of interest. Specifically, based upon the information provided, there is no personal economic interest that accrues to either the Team Leader or his brother-in-law in the exercise of their respective duties. Rather, any benefit that derives from their decisions accrues to the County and the State, respectively, and these individuals have no unfair advantage over the general public.

In the event that a particular case presents a conflict in the future, a waiver request should be submitted at that juncture. The waiver request should address three issues: whether an unfair advantage exists, whether a conflict of interest exists, and whether it is in the public interest that a waiver be granted. See §19A-8(a) of the Montgomery County Code. The Ethics Commission is concerned with the element that requires a finding that it is in the best interest of the County to grant a waiver. At such time as a waiver may become appropriate, the Ethics Commission would require additional explanation of the precise basis for the County Attorney’s determination that no satisfactory alternative options to the assignment of this supervisory function exist. In the interim, the Ethics Commission has found no conflict of interest and, therefore, no waiver is required.

This advisory opinion does not address the effect of the State Ethics Law on the Team Leader’s brother-in-law. If you have any questions concerning this opinion, please do not hesitate to contact the Ethics Commission.

2845.JLC.KLFH

cc: Barbara McNally, Executive Secretary, Montgomery County Ethics Commission

 

[Advisory Opinion 1994-13]

MEMORANDUM

October 21, 1994

 

TO: [name withheld]
Chief of Police

FROM: Jay L. Cohen, Chair [initialed]
Montgomery County Ethics Commission

RE: Advisory Opinion—Community Policing Foundation

The Ethics Commission has reviewed your request for advice regarding any ethics issues that may arise from the establishment of a Community Policing Foundation. Along with your inquiry, you provided a copy of the brochure that has been prepared describing the function and operation of the proposed foundation. You explained that the foundation would be a private, nonprofit, business-sponsored organization and that it would help increase the efficiency of the Department of Police by providing resources such as seed money, in-kind services, and expertise. You also indicated that the foundation would be modeled after a similar program that exists in Baltimore County.

The information you have provided is insufficient to enable the Ethics Commission to issue a definitive advisory opinion regarding the proposed foundation. To evaluate the program adequately, the Ethics Commission would need additional details regarding the Baltimore County program as well as the by-laws and other documents establishing the foundation. This opinion, therefore, discusses the general provisions of the Ethics Law that are implicated by the creation of a private foundation based upon the current law as well as the recent amendment to the Ethics Law, which will become effective on November 8, 1994.

The current Ethics Law includes several provisions regarding the use of County property for private gain:

(b) Unless expressly authorized by the Chief Administrative Officer a person must not use an official County agency title or insignia in connection with any private enterprise.

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

(1) generally available to the public; and

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

§19A-14 of the Montgomery County Code 1994. This section applies to the use of the County insignia and the use of the title "Chief of Police" on the brochure. To the extent that support for the foundation may include participation of public employees during work hours and using County facilities, the section also would be applicable.

The Ethics Law also contains extensive provisions concerning the solicitation of gifts by public employees. In particular:

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

(1) from any person who:

* * *

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

* * *

(2) during official work hours, or at a County agency;

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

§19A-16 of the Montgomery County Code 1994. Certain solicitations are permitted for some charitable organizations or by Executive Order. §19A-16(b) of the Montgomery County Code. These provisions would apply if public employees would be expected to place telephone calls requesting contributions to the foundation during work hours or while identifiable as public employees.

The current law permits solicitation by a public employee for the benefit of the County pursuant to an Executive order. As you can see, however, the law does not contemplate the solicitation of gifts by public employees on behalf of a private entity. The recent amendment to the Ethics Law enacted by Bill No. 9-93, however, appears to address the type of program described in your letter. Under the new law, effective November 8, 1994, the County Executive may issue an Executive Order providing that a public employee may solicit a gift:

(3) from any person, during official work hours, while identifiable as a public employee, or at a County agency, for the benefit of a County agency or nonprofit organization formally cooperating on a program with a County agency if the solicitation is authorized by the County Executive . . . in an order . . . that designates:

(A) the public employee authorized to solicit the gift;

(B) the purpose for which the gift is sought;

(C) the manner in which the gift may be solicited;

(D) the persons or class of persons from whom the gifts may be solicited; and

(E) the type of gifts that may be solicited . . . .

§19A-16(b)(3) of the Montgomery County Code 1994.

As discussed in this memorandum, several issues involving the Ethics Law arise from the implementation of the Community Policing Foundation based upon the current provisions of the Ethics Law. If the program is implemented after November 8, 1994, many of the issues may be addressed by obtaining an Executive Order approving the solicitation, identifying the individuals who will conduct the solicitations, and stating the purposes of the solicitations.

If you have additional questions concerning the application of the Ethics Law to the proposed foundation, please do not hesitate to contact the Commission.

2837.JLC.KLFH

94.04719

cc: Barbara McNally, Executive Secretary, Montgomery County Ethics Commission

 

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