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Montgomery County Ethics Commission
Text of Advisory Opinions - 1996

[Advisory Opinion 1996-1]

MEMORANDUM

January 22, 1996

TO: [name withheld], Assistant Director
Office of Economic Development

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

RE: Request for Advisory Opinion

You have asked for advice concerning an invitation you received to serve on the External Advisory Committee of the SUNY-Buffalo Greater Regional Industrial Technology Program (GRIT). In your letter to the Ethics Commission, dated November 13, 1995, you explain that the GRIT is a consortium of research universities set up for the purpose of focusing academic and technical resources on helping small technology businesses compete in the international marketplace. You indicate that your involvement with the External Advisory Committee would require attendance at semi-annual meetings. You would receive no compensation for such participation, but would receive reimbursement for travel expenses. According to your letter, you hope that this opportunity will provide you with ideas that may assist the County’s economic development program. It is unclear from your letter whether your participation would be part of your County employment duties or would be pursued for your own benefit.

 

In light of the information provided in your letter, there are two provisions of the Ethics Law that may apply. First, the reimbursement of travel expenses could be viewed as a gift, based on the definition in the Ethics Law:

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

§19A-4(h) of the Montgomery County Code 1994, as amended. If the travel reimbursement constitutes a "gift", then it does not fall within the prohibitions of 19A-16(c). Therefore, the gift provisions do not prohibit your acceptance of any travel reimbursements.

On the other hand, the travel reimbursements may be treated as compensation for secondary employment. Instead of viewing the reimbursements as a gift, they may be treated as "consideration" for your participation at the semi-annual conferences. Therefore, if your attendance at the GRIT meetings is a personal venture, you should apply for secondary employment approval. The Commission must receive a secondary employment application, signed by your department head, in order to provide secondary employment approval. Subject to any conditions imposed by the Commission, such approval would permit you to accept travel reimbursement. In that event, you would be required to use annual leave when attending meetings that are scheduled during your work hours with the County.

If your participation at these meetings is, in fact, part of your public employment, then the County will presumably reimburse your expenses for travel. In that event, no approval would be required from the Commission.

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

cc: David Edgerley, Director, Office of Economic Development

 

[Advisory Opinion 1996-2]

January 25, 1996

[name withheld]

Re: Request for Advisory Opinion and/or Waiver

Dear [name withheld]:

You have requested a waiver to respond to a request for expressions of interest (REOI) to be issued by your employer, the Department of Health and Human Services (HHS). In your letter to the Commission, you explain that the Department is approving you for discontinued service retirement effective June 28, 1996. You state that you would like to pursue related work after retirement by applying for the contract with the department to provide school health services. You are currently the Director of School Health Services. The HHS contract team writes the REOI but the management team in School Health Services submits information to the Contract Team. You anticipate that the Request for Proposals (RFP) will be issued in the next couple of months by the department.

At this juncture, there is insufficient information available for the Commission to review your waiver request. Specifically, the REOI and RFP have not been issued, so the details of the proposals are not available for consideration The Commission cannot evaluate the merits of your request without a greater understanding of your current responsibilities and their precise relationship to the REOI and RFP. Therefore, the Commission will provide you with the following advisory opinion and suggests that you return to the Commission when more detailed information is available.

While you are still a County employee, you are governed by a number of ethics provisions. Section 19A-11 of the Ethics Code addresses conflicts between private interests and public duties. That section states, in part:

(a) Prohibitions. 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;

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

* * *

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

(A) any business in which the public employee has an economic interest or is an officer, director, trustee, partner, or employee;

* * *

(C) any business with which the public employee is negotiating or has any arrangement about prospective employment;

* * *

Unless an employee obtains a waiver, Section 19A-11 requires the employee to recuse himself from public duties that conflict with certain private interests. Your private plans for prospective employment may ultimately conflict with your official duties. You may wish to recuse yourself from certain activities associated with the development of the REOI and the RFP. By recusing yourself now, you may avoid a conflict of interest, and, simultaneously, improve your post-retirement options.

If the REOI or RFP is issued before your retirement, you may decide that further recusal from your public duties is necessary or prudent. If recusal is not possible, then you may apply for a waiver pursuant to 19A-8(a). That waiver standard provides:

After receiving a written request, the Commission may grant . . . a waiver of the prohibitions of this Chapter . . . 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 or class of employees performing official duties outweighs the actual or potential harm of any conflict of interest; and

(3) granting the waiver will not give the public employee or class of employees an unfair economic advantage over other public employees or members of the public.

Based on current information, the Commission cannot render an advisory opinion stating that you may respond to an REOI while you are still employed by the County. If the REOI is issued while you are still a County employee, you may contact the Commission again with more specific information.

The first issue that you will face as a former employee seeking to work under a contract with the County involves the restrictions imposed on former public employees for a one-year and a ten-year period. The Ethics Law provides:

(a) A former public employee must not accept employment or assist any party, other than a County agency, 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.

(b) 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).

(c) Significant participation means direct administrative or operating authority to approve, disapprove, or otherwise decide government action with respect to a specific matter, whether the authority is intermediate or final, exercisable alone or with others, and exercised personally or through subordinates. It ordinarily does not include program or legislative oversight, or budget preparation, review, or adoption.

§19A-13 of the Montgomery County Code 1994, as amended.

Because of your current position regarding school health services, you would be precluded from handling certain matters for at least one year. If it is feasible, you could recuse yourself from those duties that would fall within the above-quoted language. The nature of your duties as Director of School Health Services may also constitute "significant participation" for purposes of the ten-year prohibition, but additional information would be necessary in order to make that determination.

In addition, you may not use confidential information gained during your County employment in furtherance of personal or private endeavors. This would extend to your pursuit of contracts with the County upon your retirement from public employment. §19A-15(a) of the Montgomery County Code 1994, as amended.

Once the details of the REOI or RFP are known, please feel free to return to the Commission to request a waiver of the rules governing former employees. At that time, you should provide sufficient information for the Commission to address the provisions or §19A-13 of the Ethics Law, quoted above, as well as the following elements of the applicable waiver:

After receiving a written request, the Commission may waive the prohibitions of Section 19A-12(b) if it finds that:

(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 1994, as amended.

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

Sincerely,

[signed]

Laurie Horvitz, Chair,

Montgomery County Ethics Commission

[Advisory Opinion 1996-3]

March 12, 1996

[name withheld]

Re: Advisory Opinion and/or Secondary Employment Approval

Dear [name withheld]:

You have requested advice regarding part-time as a part-time solo practitioner in general legal practice. As you indicated, you complied with Section 19A-12 of the Montgomery County Ethics Law by disclosing your law practice when you were first elected to the Montgomery County Council. You currently wish to resume the practice of law and have asked whether your prior disclosure permits you to continue the practice of law without requiring approval from the Commission.

Section 19A-12(c) of the Ethics Law excepts certain employees from the County’s general restrictions on secondary employment. Section 19A-12(c)(4) allows an elected public employee to continue secondary employment that was held at the time of his election, if the employment was properly disclosed before the election. The Commission finds that Section 19A-12(c)(4) applies in this case because you were employed as an attorney before you were first elected and you disclosed that employment. Therefore, you may resume the practice of law without obtaining secondary employment approval from the Commission.

However, a number of other legal restrictions will affect your future law practice.

For instance, 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.

Section 19A-12(b) of the Montgomery County Ethics Law. Furthermore, the Charter provides that:

No person whose compensation is paid in whole or part by the County shall (1) act as an attorney . . . for . . . 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 un any manner if that client’s interest is adverse to that of the County, or in conflict with the person’s official duties.

Section 411 of the Montgomery County Charter. These provisions may be waived by the Commission pursuant to Section 19A-8 of the Montgomery County Ethics Law. Absent a waiver, these provisions impose severe limitations on the scope of your practice within Montgomery County.

If you have additional questions or wish to obtain advice based upon more specific facts, please do not hesitate to contact the Commission.

Sincerely,

[signed]

Laurie B. Horvitz, Chair

Montgomery County Ethics Commission

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

[Advisory Opinion 1996-4]

MEMORANDUM

March 12, 1996

TO: [name withheld], Chief
Division of Employment Services and Regulation

FROM: Laurie B. Horvitz, Chair
Montgomery County Ethics Commission

RE: Request for Advisory Opinion

You have asked for advice regarding whether a donation made in your name is a gift and, if so, whether it may be accepted by you. You have explained that you received a card notifying you that a "generous" donation was made in your name by a consultant who has clients with construction projects. Because your responsibilities include all aspects of construction review and enforcement, you have sought the Commission’s advice regarding this matter. Your memorandum emphasizes that you took no action out of the ordinary with this consultant, but simply responded in the same manner as you would with any customer of your division.

Based upon the information presented, the Ethics Commission finds that the donation to the organization in your name does not constitute a gift under Chapter 19A of the Montgomery County Ethics Law. The Ethics Law defines a "gift" as "the transfer of anything of economic value, regardless of form, without an exchange of consideration of at least equal value. Gift does not include a transfer regulated by state law governing political campaigns or elections." Section 19A-4(h) of the Montgomery County Ethics Law. The donation in your name does not appear to transfer anything of value to you. You do not receive the donation or the tax benefits of making the donation. As a result, there is no gift to be accepted or rejected. If you remain uncomfortable with these donations in your name, you could request that the donor discontinue such contributions or direct them to the County.

The Commission appreciates your sensitivity to the restrictions governing acceptance of gifts. If you have any additional questions, please do not hesitate to contact the Commission.

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

[Advisory Opinion 1996-5]

MEMORANDUM

March 12, 1996

TO: [name withheld], Executive Director
Office of the Board of License Commissioners

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

RE: Advisory Opinion

You have requested an advisory opinion regarding whether the Commissioners and staff of the Office of the Board of License Commissioners may accept certain "VIP" passes that were provided by a business that is licensed and regulated by the Board. You have explained that the passes were mailed directly to specific individuals. The mailings identified each recipient by name and title.

It is the advice of the Ethics Commission that a "VIP" pass issued by a licensee of the Board is a prohibited gift which must not be accepted by any Commissioner or staff member of the Board and should be returned to the business. Section 19A-16(c) of the Ethics Law states, in pertinent part:

(c) 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;

The Ethics Law further requires that "[a] public employee who receives a gift that the public employee must not accept . . . must report the gift to the Commission, if otherwise required to report it, and return the gift to the donor or transfer the gift to the County." Section 19A-16(f) of the Montgomery County Ethics Law. Therefore, the passes should be returned.

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

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

[Advisory Opinion 1996-6]

March 27, 1996

[name withheld], Chief

Investigative Services Bureau

Montgomery County Police Department

Re: Victims’ Rights Foundation

Dear [name withheld]:

Thank you for your memorandum of February 5, 1996, in which you request an opinion concerning whether you may participate on the Board of Directors of a new foundation that is to be known as the "Victims’ Rights Foundation." You have advised the Ethics Commission that the main objectives of the organization will be to solicit donations, announce rewards for information concerning crimes, and possibly provide both financial and emotional support to victims of crime and their families.

You are not prohibited per se from participating as a director of this foundation. Nevertheless, your participation as a director must be and is limited by a number of the provisions of the Montgomery County Ethics law. Specifically, you may not use your rank or any other insignia of your office without the prior approval of the Chief Administrative Officer. You should also be aware that the solicitation of gifts and donations is severely circumscribed by Chapter 19A, Section 19A-16. Obviously, you must comply with those provisions. Finally, we expect that there may be situations that arise which will constitute conflicts between your public and private duties. In those situations, you must request approval of the Ethics Commission before participating as a public employee in such matters.

For purposes of providing you with this opinion, the Commission has assumed that your position with the Board of Directors is not compensated. If that assumption is erroneous, you should contact us promptly. You would need secondary employment approval in order to receive any compensation.

Members of the Commission express support for this seemingly worthy endeavor. We hope you will find this letter responsive to your request.

Very truly yours,

[signed]

Laurie B. Horvitz, Chair

LBH/jlw

[Advisory Opinion 1996-7]

March 27, 1996

[name withheld], President

Chevy Chase Fire Department, Inc.

Re: Awards For Volunteer Service

Dear [name withheld]:

On March 6, 1996, the Montgomery County Ethics Commission considered your request for an opinion regarding the Fire Department’s proposed issuance of monetary awards to two Montgomery County Firefighters. According to your letter, the firefighters have provided exemplary service on the Department’s capital improvement project to renovate and expand the fire station. They have volunteered many off-duty hours to the project.

The Ethics Law allows public employees to accept honoraria and awards for achievement. See Article 19A-16(d)(8). Since the proposed gifts constitute awards for special achievement, they are not prohibited by the gift provisions in Article 19A-16(c). The Commission authorized a similar award in Opinion 91-15. Therefore, you have the Commission’s authorization to make these awards.

During the course of our discussion on this subject, the Commission consulted with the County Attorney. The County Attorney has identified other legal issues that relate to your request. Please contact the County Attorney’s Office to discuss these issues. We hope you will find this letter responsive to your request.

Very truly yours,

[signed]

Laurie B. Horvitz, Chair

LBH/jlw

[Advisory Opinion 1996-8]

March 27, 1996

 

[name withheld], Town Attorney

Town of Poolesville

Re: County Police Officer Holding Elective Office in Poolesville

Dear [name withheld]:

At its meeting on March 6, 1996, the Ethics Commission considered your letter of February 21, 1996. You requested our opinion concerning whether a County police officer may hold elective office in the Town of Poolesville. According to your letter, Town Commissioners do not currently receive any compensation. You advised us that neither the Poolesville Charter nor the Code prohibit police officers from becoming Commissioners of Poolesville.

The Montgomery County Public Ethics Law (Chapter 19A) does not impose an absolute prohibition upon simultaneous service as a County police officer and a Town Commissioner. The Ethics Law does, however, include many provisions that could become relevant as the same individual performs both responsibilities. For example, the affected individual must comply with Article 19A-11 of the Ethics Code (conflicts provisions), Article 19A-14 (use of prestige of office), Article 19A-15 (use of confidential information), and Section 411 of the County Charter. Any ethics issues would need to be addressed on an ad hoc basis by this Commission and the Poolesville Ethics Commission.

The County Attorney has also provided the Commission with advice on this matter. We have been advised that Article 24, Title 13, prohibits restrictions on the political activity of employees of a local entity. Montgomery County is a local entity as defined in Article 24, Title 13. The County Attorney has advised us that the constitutional prohibition against holding two offices of profit is resolved by your representation that the Office of Commissioner is not compensated.

We hope that you find this reply responsive to your question.

Very truly yours,

[signed]

Laurie B. Horvitz, Chair

LBH/jlw

[Advisory Opinion 1996-9]

May 30, 1996

Dear [name withheld]:

The Ethics Commission has considered your letter of April 4, 1996, in which you seek a waiver pursuant to Section 19A-8 of the County Ethics Code. You advised us that you are the owner of a small business in Silver Spring and that you are active as president of the Greater Silver Spring Chamber of Commerce. You also informed us that you are a member of the County’s Silver Spring Citizens Advisory Board and are concerned that the ethics law may impose some restrictions on your activities.

Recently you agreed to offer positive comments about the Gazette Newspapers for use in an advertising campaign. None of the advertisements identified you as a member of the Silver Spring Citizens Advisory Board. Instead, you were identified as the president of a private business. The quotations in the advertisement related only to your business activities. As you have explained, you have not used your County position or title to benefit improperly yourself or another. The advertisements related solely to your private activities. Accordingly, you do not need a waiver of Article 19A-14 of the Montgomery County Code.

Thank you for your inquiry. We hope that you find this letter responsive to your request.

Sincerely,

[signed]

Laurie B. Horvitz, Chair

LBH/jlw

[Advisory Opinion 1996-10]

May 30, 1996

Dear [name withheld]:

The Ethics Commission has reviewed your correspondence of March 19, 1996 in which you request the Commission’s review of a potential conflict of interest with respect to your membership on the Water Quality Advisory Group and your private business. The Water Quality Advisory Group provides advice to the County with respect to the management of its watersheds and other general water quality matters.

According to your letter, you own a company, Environmental Quality Resources, Inc., that provides services to the development industry and to federal, state, and county governments. Montgomery County is one of your clients.

As a member of the County’s Water Quality Advisory Group, you are governed by the Montgomery County Ethics Code. See Article 19A-4(m). Article 19A-11 addresses conflicts of interest and identifies when a public servant (including a volunteer) must refrain from participating in his public responsibilities due to a conflict of interest. The facts presented in your letter suggest that you will not be able to participate in certain matters that specifically relate to your private interests. You may not vote to approve specific contracts involving your private interests. In addition, you must not participate as a member of the Water Quality Advisory Group in matters involving the selection of a contractor when your firm has an interest or may have an interest in the contract, nor should you participate in drafting the terms of a County contract upon which your firm is likely to bid. To the extent that the Water Quality Advisory Group addresses general matters of advice and policy and does not specifically affect your private business, the ethics law does not prohibit your participation.

I hope that you will find this letter responsive. If you need advice or a waiver regarding more specific circumstances, please contact the Commission.

Sincerely,

[signed]

Laurie B. Horvitz, Chair

LBH/jlw

[Advisory Opinion 1996-11]

May 30, 1996

Dear [name withheld]:

The Ethics Commission has addressed your correspondence of March 22, 1996 in which you request the Commission’s review of a potential conflict of interest with respect to your membership on the Water Quality Advisory Group and your private business. The Water Quality Advisory Group provides advice to the County with respect to the management of its watershed and other general water quality matters.

According to your letter, you manage the Center for Watershed Protection, a non-profit organization that provides technical support to local, state and federal agencies. The Center for Watershed Protection is a potential subcontractor to the County Department of Environmental Protection for the Rock Creek Watershed Study.

As a member of the County’s Water Quality Advisory Group, you are governed by the Montgomery County Ethics Code See Article 19A-4(m). Article 19A-11 addresses conflicts of interest and identifies when a public servant (including a volunteer) must refrain from participating in his public responsibilities due to a conflict of interest. The facts presented in your letter suggest that you may not be able to participate in certain matters that specifically relate to your non-profit organization or the Rock Creek Watershed Study. You should not vote to approve specific contracts involving your non-profit organization. In addition, you should not participate as a member of the Water Quality Advisory Group in matters involving the selection of a contractor when your organization has an interest or may have an interest in the contract, nor should you participate in drafting the terms of a County contract upon which your organization is likely to bid. If your organization becomes involved in the Rock Creek Watershed Study, you may participate in matters affecting that study if you fully disclose the non-profit’s involvement in the study. To the extent that the Water Quality Advisory Group addresses general matters of advice and policy and does not specifically affect your private business, the ethics law does not prohibit your participation.

I hope that you will find this letter responsive. If you need advice or a waiver regarding more specific circumstances, please contact the Commission.

Sincerely,

[signed]

Laurie B. Horvitz, Chair

LBH/jlw

[Advisory Opinion 1996-12]

May 30, 1996

[name withheld], Planning Specialist

Department of Public Works & Transportation

Division of Solid Waste Services

Dear [name withheld]:

The Ethics Commission has considered your request of March 21, 1996 for an advisory opinion and/or waiver regarding corporate sponsorship of advertisements promoting the County’s household hazardous waste collection program.

You indicate that approximately 16 times per year the Division of Solid Waste Services holds events at which County residents may deliver solvents, fuels, pesticides and other potentially hazardous household products for environmentally proper disposal. The Division has discovered that the number of residents participating in any given household hazardous waste collection correlates with the level of publicity issued for that event. You indicate that a corporate sponsor might be willing to pay for the cost of the advertisement. The Division would like to acknowledge the sponsorship in the advertisement, but will have no other contractual relationship with the sponsor. In a follow-up memorandum, you state that several businesses may be interested in forming a "sponsorship cooperative" in which each company contributes to the cost of the advertisement.

Based upon the representations contained in your correspondence, the Commission found that the public acknowledgement of corporate sponsors is permissible under the County’s ethics laws. The Division may accept the financial assistance of the private businesses and may acknowledge the corporate sponsorship in the advertisements. These actions do not violate the gift provisions in Article 19A-16 of the Ethics Code. Furthermore, a waiver is not required under Article 19A-14. The mere acknowledgement of corporate sponsorship does not fall within the prohibitions set forth in Article 19A-14.

Thank you very much for your inquiry. We hope that you find this letter responsive to your request.

Very truly yours,

[signed]

Laurie B. Horvitz, Chair

LBH/jlw

[Advisory Opinion 1996-13]

August 2, 1996

TO: [name withheld], Chief
Community Recreation Division

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

RE: Advisory Opinion

You have requested advice concerning the use of a Community Recreation Center by a private organization that was not paying the normal rental fees. Specifically, a private organization used the facility to teach martial arts for many years without paying rent. Instead, the organization made donations to the County facility. This practice was discontinued in March of 1995. You expressed concern about this practice because the responsible staff person was a student with the private organization and because other organizations were required to pay rent. Furthermore, this staff person may have used his position with the department and his relationship with his co-workers in order to provide this unique arrangement to the private organization. In addition, the staff person apparently arranged for the donations to be paid directly to vendors who were providing equipment to the facility. You already have investigated the matter and imposed penalties upon the staff person pursuant to the County Code and the Department of Recreation’s policies and procedures. You wish to determine whether any further actions are required by the Ethics Law.

The Montgomery County Ethics Law permits an investigation by the Ethics Commission of conduct occurring within the previous two years. See 19A-9(a) of the Montgomery County Code. Therefore, it is unclear whether the Commission could investigate conduct occurring before the summer of 1994. The remedies available to the Commission upon finding that a violation of the Ethics Code has occurred are set forth in the County Code. The Commission may issue a public or private reprimand, issue a cease and desist order, and recommend appropriate disciplinary action. In addition, the County may seek to recover the value received by the individual and may seek the issuance of a civil citation imposing a fine. See 19A-10(m).

Based upon the information provided, an investigation by the Commission does not appear necessary to resolve this matter. Evidently, the questionable conduct has ceased and disciplinary action has already been taken. Furthermore, it is not clear that the individual received personal financial benefit that could be recovered. You have not alleged a clear personal or private gain by the individual or the organization. Since an investigation does not appear necessary to resolve the matter, the Commission is not prepared to initiate an investigation without a formal complaint. See Article 19A-9(a). A formal complaint with additional details, such as the name of the individual and the benefit conferred on the organization, would be needed for the Commission to consider initiation of an investigation.

At this juncture, your options include preparing a formal complaint to be filed with the Ethics Commission pursuant to §19A-10 of the Montgomery County Code. In the alternative, you may consult with your supervisor and, perhaps, the Chief Administrative Officer, to determine whether it is appropriate to approach the State’s Attorney with concerns about possible criminal conduct. If you believe that the matter has been adequately addressed by the actions you have already taken, then you are not under any further obligation to pursue the issue.

Thank you very much for your sensitivity to these ethics issues. Should you have any questions concerning this advice, please do not hesitate to contact the Commission.

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

[Advisory Opinion 1996-14]

August 21, 1996

[name withheld]

Public Administrative Intern

County Council Office

Dear [name withheld],

The Montgomery County Ethics Commission has considered your letter of May 9, 1996. You have asked the Commission for advice regarding your participation on various boards of directors of non-profit organizations. You are governed by the County’s ethics laws because you are a public administration intern in the office of a County Council Member.

Section 19A-11 of the Montgomery County Code addresses issues of conflicts of interest. The section defines when a public employee must refrain from participating in his or her public duties due to an economic interest or other connection with a private entity. Certain provisions apply explicitly to the director of an organization who does not possess any financial interest in the organization. For example, one provision states:

[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:

(A) any business in which the public employee has an economic interest or is an officer, director, trustee, partner, or employee;

With respect to the quoted provision, the issue is whether you, as a public employee, may participate in a matter that involves your non-profit organization as a party. In order to participate in such a matter, you would need a waiver from the Ethics Commission unless you fall within the exception provided in Section 19A-11(b)(5). That condition applies if a series of conditions are satisfied. First, the public employee may not be compensated by the private organization and must disclose his or her relationship with the organization. In addition, the exception only applies if the public employee does not have any managerial responsibility or fiduciary duty to the non-profit organization, any authority to approve the organization’s budget, any authority to select the officers or employees of the organization, or any authority to vote on matters as a member of the governing body of the organization. As a director of a non-profit organization, you probably perform some of these functions.

In your letter, you have mentioned numerous non-profit organizations with which you are, or would like to be, affiliated. Section 19A-11 does not preclude you volunteer activities with these organizations. Instead, Section 19A-11 mandates that you refrain from participating as a County employee on certain matters affecting the organizations. The Commission is not prepared to issue you a waiver of 19A-11 without more information about the specific organizations, their interaction with the County, and the likely overlap between your County responsibilities and your volunteer activities.

You are responsible for identifying when one of these organizations may be affected by your County actions and when Section 19A-11 may require non-participation. Several of the listed organizations may have contracts or grants with the County and others may be engaged in activities that are regulated by the County. For example, the local chapter of United Way appears to be part of a larger organization that is very actively involved in fund raising through the County’s Department of Human Resources and the Department of Finance. As a result, you should not participate as a public employee in matters affecting this relationship between the United Way and the County while serving as a Board Member of United Way’s local chapter.

In addition, you should also be advised that Section 19A-12 would apply to any compensated activities for non-profit organizations. That section requires public employees to obtain permission for all compensated secondary employment. Unless a waiver is obtained, Section 19A-12(b) also prohibits employment with any business that is regulated by the County agency with which the public employee is affiliated.

Finally, Section 411 of the County Charter could affect your activities with any non-profit organization that contracts with the County. You would be precluded from acting as an agent for the organization if it maintains a contract with the County.

I hope the Commission has been responsive to your request. If you have any questions or would like to apply for a waiver under the provisions of Section 19A-8, please contact the Commission.

Very truly yours,

[signed]

Laurie Horwitz, Chair

Montgomery County Ethics Commission

 

[Advisory Opinion 1996-15]

August 21, 1996

Kenneth B. Tecler, Esq.

Chen, Walsh, Tecler & McCabe, LLP

Re: Director of Development for HOC

Dear Mr. Tecler:

The Montgomery County Ethics Commission has received and reviewed your letter of April 3, 1996. In your letter, you request a waiver of Section 19A-11 of the County’s Ethics Law on behalf of the Director of Development for the Housing Opportunities Commission (HOC). According to your letter, the Director owns stock in a developer. That developer is engaged in preliminary discussions with the HOC regarding the redevelopment of certain property in the County. The requested waiver would permit the participation of the Director of Development in the proposed development project.

The Ethics Commission is not prepared to grant the waiver request without additional information. As you know, the Commission may only grant the waiver if the requirements of Article 19A-8(a) are satisfied. The Commission must find 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 or class of employees performing official duties outweighs the actual or potential harm of any conflict of interest; and

(3) granting the waiver will not give the public employee or class of employees an unfair economic advantage over other public employees or members of the public.

Although your letter discloses the estimated value of the Director’s stock, it does not provide other information that would be useful to the Commission. Because you have not provided the name of the developer or of the Director, it is difficult for the Commission to assess the potential harm of any conflict or to determine whether the Director would receive an unfair advantage. If possible, please estimate the percentage of the developer’s stock that is owned by the Director and provide more specific information about the importance of the proposed development to the developer’s overall business activities.

The Commission would also appreciate additional information about the Director’s responsibilities over the negotiations and the project. For example, please clarify whether the Director will remain involved in the project if the HOC and the developer reach an agreement to proceed. In addition, please explain how the developer was selected and the facts supporting the developer’s selection over other companies.

Finally, the Commission prefers that public employees file their own waiver requests and that each waiver request identify the name of the public employee who needs the waiver.

I apologize for the Commission’s slow response to your request. If you intend to send additional information, please be advised that the Commission’s next meeting is scheduled for September 17, 1996.

Very truly yours,

[signed]

Laurie B. Horvitz, Chair

Montgomery County Ethics Commission

[Advisory Opinion 1996-16]

September 17, 1996

[name withheld]

Re: Request for Advisory Opinion/Waiver

Dear [name withheld]:

You have asked for advice and a waiver to permit you to accept a contract with the Human Relations Commission (HRC) while serving as a member of the Employment Panel of the HRC. The contract involves the preparation of a fair housing plan for the HRC to consider. Although your membership on the Employment Panel is uncompensated, the contract would be a paid position.

As a member of the Employment Panel, you are governed by the County’s Ethics Law. The Law defines a public employee as "any person appointed by the County Executive . . . to a board, commission . . . or similar body, whether or not . . . the person is compensated for serving on the body  . . . " Section 19A4(m)(3)(A) of the Montgomery County Code 1994, as amended. The Ethics Law identifies certain conflict of interest situations and prohibits public employees from participating in such situations. See Section 19A-11 of the Montgomery County Code 1994, as amended. In addition, a public employee must not "[b]e employed by any business that . . . is regulated by the County agency with which the public employee is affiliated; or . . . negotiates or contracts with the County agency with which the public employee is affiliated . . . ." Section 19A-12(b)(1) of the Montgomery County Code. See also 11B-52 of the Montgomery County Code (prohibiting County contractors from hiring County employees).

Pursuant to Section 19A-12(b), an employee should obtain a waiver before applying for a contract with her own agency, due to the prohibition against negotiating with the County while a public employee. In your situation, you have applied for, been offered, and wish to accept, a contract to perform work for the agency with which you are affiliated. At this late stage in the process, you nonetheless need a waiver in order to contract with the County and to remain a member of the Employment Panel. The standard governing waivers of Section 19A-12(b) requires the Commission to find that:

(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.

Section 19A-8(b) of the Montgomery County Code. The standard governing waivers of Sections 19A-11 and 11B-52 is set forth in Section 19A-8(a). In part, the Commission is required to find that "the best interests of the County would be served by granting the waiver."

Based upon the information provided, the Commission must deny the request for a waiver and advise you that, in order to accept the contract, you must resign from your position on the Employment Panel of the HRC. The Commission is not persuaded that the best interests of the County would be served by granting the waiver. Despite your considerable qualifications, there is also insufficient information suggesting that the Employment Panel will be unable to perform its work if you must resign. Similarly, there is insufficient information establishing that the County’s ability to retain qualified employees on the Employment Panel will be reduced if the waiver is not granted. Finally, your dual role as a member of the HRC and a contractor with the HRC would create an actual conflict of interest. The contract requires you to coordinate with and perform work for the commission on which you serve.

For these reasons, the Ethics Commission advises you that the waiver request is denied and that you may not continue to serve on the Employment Panel concurrently with acceptance of the contract to prepare a fair housing plan. You may participate on either the Panel or accept the contract and resign from the Panel.

In conclusion, the Ethics Commission is extremely concerned about the process that was used to select a contractor. The appearance of impropriety in this instance is significant. No waiver was obtained prior to the bid submission and only one application was received by the HRC. The Ethics Commission does not view these facts as ideal and hopes that public employees and the HRC will handle future requests for proposals differently.

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

Sincerely,

[signed]

Laurie Horvitz, Chair

Montgomery County Ethics Commission

[Advisory Opinion 1996-17]

MEMORANDUM

TO: [name withheld], County Executive
[name withheld], President
Montgomery County Council

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

SUBJECT: Advisory Opinion—Prestige of Office

DATE: November 13, 1996

 

A. Introduction

The Montgomery County Ethics Commission has received your request for an advisory opinion, dated July 25, 1996. Your memorandum seeks advice regarding Section 19A-14(a) of the Montgomery County Code. That section provides:

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 prohibited by this subsection.

According to your memorandum, each of you is often asked by organizations to "make speeches, attend events, or sign documents such as brochures, advertisements, or letters in support of a specific undertaking or the work of the organization in general." You have requested advice regarding the scope of Section 19A-14(a) and the Section’s applicability to these activities.

Although these matters are ideally addressed when all relevant facts are presented to the Commission, the Commission is prepared to offer certain, general advice.

B. The Commission’s Five-Part Analysis

If the Commission is presented with a potential issue under Section 19A-14(a) involving an elected official, it will conduct a five-part analysis.

1. The Statute Only Prohibits Conduct That Benefits the Employee or a Private Party

First, the Commission will determine if the elected official’s conduct benefits the employee or a third party. Section 19A-14(a) prohibits conduct that provides a benefit to the public employee or to another. The public employee does not need to receive the gain in order to violate the section. If the employee’s conduct provides a financial benefit to a third party, then the section may be violated. There is no violation if the conduct does not provide any benefit to the employee or to the third party. For example, a public employee may attend a meeting with a few business leaders in order to develop community policies without creating a problem under Section 19A-14(a). However, if the meeting is predominantly a press conference for a particular business, product or service, then the section may apply. The analysis must focus on whether the public employee’s conduct provides the employee or a third party with a benefit.

In particular, the Commission will examine conduct that is specifically designed to endorse a product or to increase revenues of a company. The Commission will carefully review an employee’s participation in advertising campaigns and fundraising events. These activities are directly related to the revenues of the third party and are likely to capitalize on the prestige associated with the public employee’s position.

2. The Ethics Code Differentiates between Charitable and For-Profit Organizations

Second, the Commission will determine if the beneficiary of the elected official’s conduct is a charitable institution. As your memorandum noted, there are special statutory provisions that address solicitations to charitable organizations. Section 19A-16(b)(5) authorizes elected officials to solicit gifts for charities, "while identifiable as an elected official". The elected official is required to list each organization to which the employee solicited a contribution in his or her public financial disclosure statement. Sections 19A-16(b)(5) and 19A-14(a) should be interpreted in a manner that resolves any possible inconsistencies between these two provisions. Therefore, the Commission is not inclined to find violations of Section 19A-14(a) when the requirements of Section 19A-16(b)(5) have been fully satisfied. Consequently, an elected official may, while identifiable as a government official, solicit donations for charitable organizations. Absent extenuating circumstances, the Commission does not believe that such conduct will violate Section 19A-14(a).

This rationale does not apply to endorsements and solicitations involving for-profit organizations. In those circumstances, Section 19A-16(b)(5) is inapplicable.

3. The Statute Only Prohibits "Intentional" Conduct

Third, the Commission will decide whether the conduct is "intentional." For example, the elected official is not likely to have acted "intentionally" if his or her comments are in response to unanticipated questions at a press conference or at a public event. By contrast, an approved endorsement of a product in an advertisement is more likely to satisfy this element of the statute.

4. The Prohibited Conduct Must Involve the "Prestige of Office"

Fourth, the Commission will determine whether the elected official has used the "prestige of office." Generally, Section 19A-14(a) does not regulate the private conduct of public officials. Obviously, every private citizen chooses to conduct business with specific vendors. In his or her private capacity, an elected official may demonstrate a preference for certain products and establishments. Usually, the exercise of personal preferences and choices is not restricted by Section 19A-14(a) because the elected official is not intentionally using the "prestige of office" for the gain of another.

The Commission is most troubled by statements endorsing a product or service in which the elected official identifies himself or herself by title. Once the elected official uses his or her title to promote a product or service, then he or she may be using the "prestige of office" for the gain of another. The use of an official’s name, without a title, is less troubling but may nonetheless present a problem under certain circumstances. A case-by-case review of those circumstances is usually necessary. The official’s authorized use of his or her photograph, without the use of any name or title, may also present an issue if the elected official is easily recognized by the public.

5. "Usual and Customary Constituent Services" Are Permitted

Fifth, the Commission will decide whether the conduct constitutes "usual and customary constituent services." This analysis will focus on the particular position of the elected official and the services that are normally provided by such officials. For example, County Executives often participate in ground breaking ceremonies. Normally, such participation constitutes a "usual and customary constituent service." The County Executive is present to acknowledge a new business in the community and to celebrate the anticipated contribution of that business to the public. Attendance at such a function is not tantamount to the endorsement of one business over another. Time permitting, the County Executive probably would attend many more of these ceremonies. His or her attendance is not normally interpreted by the public as a specific endorsement of the business’s services or products.

Similarly, elected officials are often asked to make speeches recognizing the accomplishments of local businesses. Elected officials are expected, as part of their "usual and customary constituent services," to comment favorably about businesses within their communities. Elected officials are also expected to promote the development and retention of businesses within their communities. Therefore, favorable comments about an individual company will generally qualify as "usual and customary constituent services" if the comments focus on the contributions of the company to the community, e.g. civic and charitable activities, increased employment for the region, participation in educational and re-training programs.

However, the Ethics Code may prohibit comments that do not focus on a business’s contributions to the community and, instead, constitute specific endorsements of a particular product or establishment. An elected official is not likely to be performing a "usual and customary constituent service" when his or her comments are clearly designed to express a preference for one constituent company over another constituent company. Officials do not usually differentiate among constituent companies by selecting only one for endorsement. Therefore, an elected official’s "usual and customary constituent services" do not usually include the signing of brochures for specific products or participation in an advertising campaign that seeks to promote a particular business.

Your memorandum also mentions attendance at private events. An elected official’s mere attendance at a private event is not likely to create a problem under Section 19A-14(a). It is a "usual and customary constituent service" for elected officials to attend public and private events, even though the elected official is presumably invited because of his or her government position. However, as stated above, events that are primarily fundraisers or advertising/promotional events, may present unique issues that should be presented to the Commission for case-by-case review. Furthermore, this memorandum does not address issues relating to the costs associated with the elected official’s attendance at such events. Other sections of the Ethics Code govern whether or not a public official may attend without paying his or her share of the costs.

C. Conclusion

As always, the Commission is available to provide advice regarding specific matters. This memorandum merely seeks to identify the issues and analysis that the Commission will endeavor to use when confronted with particular matters. Hopefully, this memorandum will provide general guidance regarding the scope of Section 19A-14(a).

 

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