Skip Navigation
Montgomery County Ethics Commission
Text of Advisory Opinions - 1998

Advisory Opinion 1998-1

MONTGOMERY COUNTY ETHICS COMMISSION

ADVISORY OPINION

JANUARY 30, 1998

The Ethics Commission reviewed an official’s request for advice regarding whether he should recuse himself from officially participating in discussions and decisions regarding:

(1) the historic designation of Chevy Chase Village ("Phase I"); and/or

(2) the historic designation of Chevy Chase 3, Martin’s Additions to Chevy Chase, the Town of Chevy Chase, or certain residences in each, as historic ("Phase II").

 

His correspondence indicated that these properties have been identified on the Atlas of sites for possible inclusion in the County’s Historic Master Plan and that there has been some interest in making these designations final. He also stated that he resided in a home in Martin’s Additions in which his wife has a life estate and that there is a possibility that this house will be designated in Phase II of the process. Because he is a member of a public body that will be involved in making the designations, he requested guidance regarding his participation, if any, in Phase I and Phase II of these proceedings. In particular, he asked if his wife’s interest required him to recuse himself from participation in the decision(s) regarding: (1) Chevy Chase Village or any of its residences; (2) the Town of Chevy Chase; (3) Chevy Chase Section 3; and/or Martin’s Additions, or any part of it.

Implicitly, his request suggested that: (1) there are historically meaningful distinctions between Phase I and II; and (2) the decisions the public body makes concerning Phase I would not have a direct impact on any subsequent decisions regarding Phase II.

The Montgomery County Ethics Law, in part, states:

(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 . . . .

The Commission carefully reviewed the official’s letter and other correspondence regarding this matter.

Based upon the information, the Commission determined that the Ethics Law did not prohibit this official’s participation in Phase I, i.e., the designation of Chevy Chase Village, because neither the official nor his wife had an interest in that area that could be directly affected by his participation. This conclusion was based upon an understanding that the two phases were distinct and that the decisions in Phase I would not have a direct or binding impact upon decisions in Phase II. In the event that the Commission’s understanding was incorrect, the official was advised to obtain a waiver from the Commission because Section 19A-11(a)(1)(C) could prohibit his participation in Phase I.

Further, the Commission concluded that the official could not participate in any deliberations, discussions or decisions regarding Phase n because his wife has an interest in a property that could be directly affected by the decisions made m Phase II.

 

Advisory Opinion 1998-2

MONTGOMERY COUNTY ETHICS COMMISSION

ADVISORY OPINION

February 18, 1998

A County employee requested advice as to whether she may accept tickets from the American Film Institute ("AFI") to attend an AFI awards dinner.

PERTINENT FACTS

As set forth in your memorandum the pertinent facts are as follows:

1. The County has selected AFI, pursuant to a competitive selection process, to be the tenant and to program the Silver Theatre. That Theatre is the key resource in the revitalization of the Downtown Silver Spring Urban Renewal Area.

2. The County and AFI currently are negotiating the Silver Theatre agreement.

3. To finalize the agreement, representatives of the County, including you, will be attending a meeting of the Executive Board of AFI in Los Angeles.

4. AFI has requested that you attend an awards dinner on January 19, in order for you to meet some of the other principals from the Los Angeles campus of AFI and administrative personnel. The dinner is a cultural event and a fundraiser for AFI.

5. The cost of a ticket for the awards dinner is $1,000. (The value of the dinner ticket is $125; the remaining $875 is designated as a donation to AFI).

6. [One individual] would receive one ticket; [Another] would receive two tickets (one for himself and one for his spouse).

APPLICABLE LAW

The Montgomery County Ethics Law prohibits a county employee from knowingly accepting 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; or

(4) has an identifiable economic interest that is different from that of the general public, which the public employee may substantially affect in performing the public employee’s official duties.

Montgomery County Code, §19A-16(c) However, §19A-8(a) authorizes the Ethics Commission, after receiving a written request, to grant to a public employee 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 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.

WAIVER DECISION & ADVISORY OPINION

After considering the pertinent facts in the light of the applicable law, the Commission finds that:

1. the tickets to the awards dinner have a market value of $I,OOO;

2. acceptance of free tickets from AFI would constitute receipt of a gift;

3. AFI does business with the County agency with which both [individuals] areaffiliated; and

4. acceptance of the tickets from AFI is prohibited, absent a waiver.

After carefully considering the criteria for a waiver under §19A-8(a), the Commission concludes, unanimously, that none of the criteria are met under the circumstances presented by this request. Therefore, the Commission will not grant the requested waiver.

[The requestors also . . . asked if [they ] may attend the awards dinner as the guest of a county employee who is permitted to accept such gifts under §19A-16(d)(5). That section provides that the prohibitions of subsection (c) do not apply to gifts to a public employee who must file a public financial disclosure statement under subsection 19A-17(a), if the gift is a courtesy extended to the office and consists of tickets or free admission for the employee and one guest to attend a charitable, cultural, civic, labor, trade, sports, or political event, including meals and beverages served at the event.

The Commission [advised] that [the individuals] may attend the awards dinner as a guest of a county employee who is permitted by §19A-16(d)(5) to accept two tickets to the awards dinner. However, the Commission also notes that the employee who files the public financial disclosure statement must report the acceptance of two tickets, each valued at $1,000, on his or her statement. If [the individuals] attend the dinner as a guest of another employee, [they] must provide a copy of this letter to that employee. Thereafter, that employee should transmit a written acknowledgement stating that he or she has received a copy of this letter.

 

Advisory Opinion 1998-3

MONTGOMERY COUNTY ETHICS COMMISSION

ADVISORY OPINION

March 6. 1998

The Ethics Commission has been asked by an agency head for advice regarding a firefighter’s desire to enter into an agreement with The Laser Center for a discount on the cost of laser eye surgery.

According to the information forwarded to the Commission, The Laser Center offered the firefighter a considerable discount on the cost of laser eye surgery in return for: (I) any referrals the firefighter might make to the Center after the surgery; and (2) participating in a "press interview" concerning how corrective eye surgery had improved the firefighter’s job performance with the Montgomery County Department of Fire and Rescue Services.

The request implicated the following provisions of §19A-14 of the Montgomery County Ethics Law regarding the use of the prestige of a county office"

(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 Office, a person must not use an official County or agency title or insignia in connection with any private enterprise.

However, after receiving a written request, the Commission may grant a public

employee a waiver of the prohibitions of §19A-14 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.

The Commission determined that participation in an interview stating how the corrective eye surgery improved job performing as a firefighter for Montgomery County would constitute the use of the prestige of office contrary to the prohibition in §19A-14(a). To engage in an interview of this kind would require that the firefighter: (1) apply for and receive a waiver of §19A-14(a); and (2) is authorized by the Chief Administrative Officer to use an official County or agency title or insignia in connection with the fulfillment of either of his obligations under the agreement.

 

Advisory Opinion 1998-4

MONTGOMERY COUNTY ETHICS COMMISSION

ADVISORY OPINION

April 7, 1998

A member of the County Council staff requested advice regarding her participation as the Council analyst on the Department of Health and Human Services ("DHHS ") budget and programs in view of her husband’ s "involvement" with the Family Therapy Institute of Washington, D.C. (the "Institute"), an organization that has a contract with DHHS. In particular, she asked:

1. For guidance on whether she may make recommendations to the Council regarding County funds that the Institute receives or has a potential to receive;

2. If she may continue in her full role as analyst for the DHHS budget and programs if her husband recuses himself from responsibilities at the Institute associated with seeking and administering County funds; and

3. If there is any conflict of interest in her now reviewing those services that DHHS negotiated with the Institute before her husband’s new role at or relationship with the Institute.

PERTINENT FACTS

As set forth in her letter, the pertinent facts are as follows:

1. She is a member of the County Council’s central staff and its principal analyst for the DHHS budget and programs generally, and the capital budget of the Montgomery County Public Schools.

2. Prior to October 1, 1997, her husband rented space in Rockville from the Institute for use in his private counseling practice. The relationship at that time was merely that of landlord and tenant.

3. In October 1997, the owner of the Institute requested that her husband take "an active role" in the Institute’s business, including help with expanding its services. For this work, the Institute’s owner provides her husband with free space in which to see his clients. In addition, her husband is able to choose cases from those who call the Institute looking for therapy.

4. The Institute has a "non-profit arm" that contracts with the DHHS to provide therapeutic services to juvenile sex offenders. The maximum compensation under the current contract, which terminates on June 30, 1998, is $50,000.

5. If the Council appropriates the funds to continue this program, DHHS will request proposals to award the contract on a competitive basis beginning July 1, 1998, and the Institute or its non-profit arm may again be awarded the contract.

APPLICABLE LAW

The Montgomery County Ethics Law prohibits a public employee, unless permitted by a waiver, from participating in any matter that affects, in a manner distinct from its effect on the public generally, any property or business in which a relative has an economic interest, if the public employee knows about the relative’s interest. §19A-ll(a)(I)(C). A public employee also must not participate in a matter if the public employee knows that any party to that matter is a business in which a relative of the public employee has an economic interest. §19A-11(a)(2)(B).

However, Sec. 19A-8(a) authorizes the Commission, after receiving a written request, to grant to a public employee a waiver of the prohibitions of §19A-11(a) if the Commission 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;

CONCLUSION

After carefully considering the matter, the Commission advised that §19A-ll prohibited her from making any recommendation to the County Council regarding the program or services that DHHS provides or may provide through the Institute or its nonprofit arm, including, but not limited to the funding of that program.

Furthermore, treating her letter also as a request for a waiver of that prohibition, the Commission unanimously concluded that she did not meet the waiver requirements of

§19A-11.

Therefore, she must not participate in any manner in the analysis or making of any recommendations regarding the program or services that DHHS provides or may provide through the Institute or its non-profit arm.

 

Advisory Opinion 1998-5

MONTGOMERY COUNTY ETHICS COMMISSION

ADVISORY OPINION

May 11, 1998

The Ethics Commission reviewed a letter from a former employee requesting a waiver, if necessary, to accept employment with the Columbia Telecommunication Corporation (CTC).

The requestor indicated the following pertinent facts:

1. During his former employment with Montgomery County, the requestor significantly participated in the selection of CTC to provide cable television consulting engineering services to Montgomery County, and in the negotiation and administration of the ensuing contract with CTC.

2. During that same period, CTC also provided services to the Montgomery County Department of Transportation and the Department of Information Services and Telecommunications under other contracts in which the requestor had no involvement of any kind.

3. In October 1997, CTC offered the requestor employment to provide technical and administrative support to Montgomery County’s Tower Committee, a group established after the requestor left county service. That employment would not require that the requestor provide any services in connection with the engineering consulting services contract in which he had significantly participated as a county employee.

After a review of Ethics Law restrictions on the employment of former county employees by county contractors, and, applying those restrictions to the facts as set forth in the requestor’s original letter, the Commission advised that:

Although he had official responsibility on behalf of Montgomery County for the CTC contract, §19A-13’s l-Year Total Ban on any employment of him by CTC had expired because it had been more than one year since he left the employ of Montgomery County, Maryland. However, the 10- Year Partial Ban continued to apply to him. In particular, the requestor is prohibited from accepting employment with CTC in connection with its performance of the cable TV engineering consulting services contract, and that prohibition will continue for a period of ten years from the date he left county service.

Based on the requestor’s representation that he will not be employed to assist CTC in the performance of that contract, the Commission concluded that his proposed employment by CTC is not prohibited by the Montgomery County Ethics Law, and therefore, no waiver is required. Were it otherwise with respect to either the current contract or a new contract to provide such services, the prohibition would apply, a waiver would be necessary, and, on the facts submitted, the Commission would not grant a waiver. Although it determined that the Ethics Law did not prohibit the proposed employment, the Commission cautioned that, in its opinion, the ten year ban with respect to the engineering consulting services contract applies to any and all forms of assistance, including, but not limited to, assisting in the preparation of any claim under or extension of the current contract and any bid or proposal on a new engineering consulting services contract with Montgomery County. The requestor was advised that he may not, during the 10-year period, perform any service, directly or indirectly, for CTC in connection with that contract or any successor contract. He also may not, in the opinion of the Commission, disclose to CTC any confidential information concerning a county agency that he acquired as a county employee or otherwise use confidential information acquired as a county employee for his personal gain or that of another.

(Montgomery County Code, §19A-15.)

After receiving and reviewing the Commission’s advice and accepting employment with CTC, the requestor informed the Commission in a March 25, 1998 letter, that in 1992, on the advice of the County’s Office of Procurement, all of the consulting contracts between CTC and various County agencies, including the cable TV engineering consulting services contract that he administered as a county employee, were combined into one contract between CTC and the Cable Office that he formerly managed as a county employee. Consequently, he requested that the Commission waive the 10-year ban of §19A-13(a) because it would be impossible for him to perform any CTC work for the County without providing those services under the consulting engineering service contract administered by the Cable Office.

§19 A-S(c) of the Ethics Law authorizes the Commission" after receiving a written request, to waive the 10-year ban imposed by §19A-13(a) if the Commission finds that:

(1) failing to grant the waiver may reduce the ability of the County to hire or retain highly qualified public employees; or

(2) the proposed employment is not likely to create an actual conflict of interest.

When it grants a waiver, the Commission may impose appropriate conditions to fulfill the purposes of the Ethics Law. §19A-8(e).

Having reviewed the matter in light of the facts presented in his letter of March 25, 1998, the Commission determined that the facts presented by the requestor did not meet the requirements for a waiver under §19A-13(b). Therefore, his request for a waiver was denied

 

Advisory Opinion 1998-6

MONTGOMERY COUNTY ETHICS COMMISSION

ADVISORY OPINION

May 18, 1998

In October, 1997 a public official requested permission to accept outside employment, to be performed at the official’s home or in the Circuit Court Bar Library, as a law clerk for a local solo practitioner. The Commission approved the request with the following conditions:

1. That the official not participate, as an outside employee, in any matter (litigation, lobbying, counseling or other representation) involving:

(a) Montgomery County, MD;

(b) an officer, employee or unit of Montgomery County, MD; or

(c) any other public officer, employee, agent or agency funding, in whole or in part, by Montgomery County, MD.

2. That the outside employer must implement administrative "walls" that would effectively insulate the official from participating in such matters;

3. That, except as provided in § 19A-11(b)(1), the official not participate as a county employee in any matter that affects the solo practitioner, either directly as a business entity or indirectly in its representation of a client, unless the official applies for and receives a waiver from the Commission with respect to the particular matter;

4. That there be compliance with all other applicable provisions of the Ethics Law; including, by way of example but not limitation, the prohibition of the intentional use of the prestige of the official’s office for his private gain or that of another (§19A-14) and the prohibition of the disclosure of confidential information (19 A -15).

On January 30, 1998, the official requested an opinion regarding his ability to work in his outside employer’s office. That office is leased to the solo practitioner by the law firm (the "landlord firm"), whose attorneys practice before the public body on which the official serves on a regular basis. In the January request, the official indicated that:

1. The arrangement with the landlord firm gives his employer access to the use of duplication equipment, fax machines, the library and the receptionist for clients present in the office, but not to answer the employer’s telephone. This same access is available as well to the public official.

2. Other than the lease, there are no financial arrangements between the solo practitioner and the landlord: firm or their personnel.

3. The landlord firm and the official’s employer refer clients to each other in cases of conflict of interest or lack of expertise. In these matters the landlord firm and the employer work as co-counsel; however, the official will not be involved in any such case.

4. The landlord firm and the official have agreed to avoid any discussion or participation in the office relating to any matter which might be before the official’s public body on which the official serves or would be seen to be a potential conflict as well as implement "administrative walls" to insulate the official from participation in such matters.

The Montgomery County Public Ethics Law is founded on the following express legislative findings and statement of policy:

(a) Our system of representative government depends in part on the people maintaining the highest trust in their officials and employees. The people have a right to public officials and employees who are impartial and use independent judgment.

(b) The confidence and trust of the people erodes when the conduct of County business is subject to improper influence or even the appearance of improper influence.

(c) To guard against improper influence, the Council enacts this public ethics law. This law sets comprehensive standards for the conduct of County business and requires public employees to disclose information about their: financial affairs.

(d) The Council intends that this Chapter except in the context of imposing criminal sanctions be liberally construed to accomplish the policy goals of this Chapter.

Montgomery County Code, §19A-2.

Section 19A-12(a) of the Ethics generally prohibits county employees, including the official, from engaging in any other employment unless the employment is approved by the Commission, and authorizes the Commission to impose conditions on its approval of such other employment.

The Commission considered the information provided by the official. However, in light of the legislative findings and policy underlying the Ethics Law and the prohibitions on conflicts of interest, the Commission determined that in order to avoid any actual, potential or apparent conflict of interest, the official must recuse himself on every matter before the public body of which he serves in which the landlord firm or any of its attorneys is involved.

 

Advisory Opinion 1998-7

MONTGOMERY COUNTY ETHICS COMMISSION

ADVISORY OPINION

June 10, 1998

A member of the Montgomery County Energy and Air Quality Committee (the "Committee") asked the Commission for an advisory opinion, under §19A-7 of the Montgomery County Ethics Law, on the question of whether he or his law firm is prohibited from responding to a request for proposals (RFP) issued by the Department of Public Works and Transportation (DPWT) for services to assist the County in addressing electric industry restructuring. The requester also sought a waiver of any Ethics Law prohibition, if necessary.

Pertinent Facts

The requester provided the following pertinent facts:

1. The requester is an attorney with an area law firm.

2. The requester’s firm is active in restructuring efforts in the transportation and energy industries, including electric industry deregulation. The requester’s principal area of practice is energy law, which includes gas and electric restructuring.

3. The requester has received a letter from DPWT, addressed to the firm per his attention, in which DPWT stated that it is soliciting consultant services for electric utility deregulation and invited the firm to respond to an enclosed RFP.

4. The requester has been a member of the Committee since July 1997.

5. The Committee advises the Department of Environmental Protection (DEP) and County officials on air quality and other environmental matters, including electric restructuring matters.

6. The requester is a member of the Committee’s Task Force On Indoor Air Quality, and his efforts as a member of the Committee have been focused on indoor air quality.

7. During the requestor’s tenure, the Committee has discussed electric restructuring and indoor air quality, but not the need for, desirability, scope or other aspects of hiring an outside consultant to assist the County in electric restructuring matters.

8. DPWT anticipates that a roundtable discussion will commence in 1998, and a pilot program will begin on July 1, 2000.

9. Although the Committee advises the DEP and County officials on electric restructuring matters, the advice does not and will not relate to the scope, nature or implementation of any contract awarded in connection with the RFP.

10. The requester has not, as a member of the Committee, participated in the RFP process in any way, and the Committee will not have any authority over the DPWT contract.

Applicable Law

The Energy and Air Quality Committee Law.

The Committee is a creation of §18A-5 of the Montgomery County Code:

(a) There is hereby established an Advisory Committee on Energy and Air Quality . . . to assist the County Council and the County Executive in carrying out the purposes of this Chapter and Chapter 3. The Committee consists of 15 members appointed by the County Executive, subject to confirmation by the County Council. One member must be designated by the Executive and confirmed by the Council to serve as chair of the Committee. Appointees must be citizens of the County who are technically knowledgeable and interested in energy and air quality.

* * *

(b) Members of the Committee serve without compensation Section 18A-8 of the Code gives the Committee the following duties

(a) Advise the County Executive and the County Council of the activities of the Committee in furthering the goals of Chapter [18A - Energy Policy] and Chapter 3 [Air Quality Control];

(b) Develop recommendations to promote and implement immediate and long-range energy consciousness in all segments of the community;

(c) Comment on or assist in developing programs to meet air quality standards and to promote healthy indoor and outdoor air quality;

(d) Identify areas and methods to encourage voluntary participation in energy conservation efforts and air quality improvements;

(e) Educate the public and private sectors about the efficient use of energy and its direct benefits for improved air quality;

(f) Carry out such other duties as may be assigned from time to time by the County Executive and the County Council to assist in fulfilling the purposes of this Chapter.

The Montgomery County Ethics Law.

The request implicated several provisions of the Montgomery County Ethics Law. Section 19A-12(b) prohibits a public employee from: (1) being employed by or owning more than one percent of any business that negotiates or contracts with the County agency with which the public employee is affiliated; or (2) holding any employment relationship that would impair the impartiality and independence of the public employee. For these purposes, "public employee" includes "any person appointed by the County Executive or County Council to a board, commission, committee, task force or similar body, whether or not . . . the person is compensated for serving on the body . . . ."

Section 19A-11(a)(1)(B) prohibits a public employee from participating, as a public employee, in any matter that affects, in a manner distinct from its effect on the public generally, any business in which the public employee has an economic interest.

Section 19A-14(a) prohibits a public employee from intentionally using the prestige of his or her office for private gain or the gain of another.

Section 19A-8 authorizes the Commission, after receiving a written request, to grant waivers of these prohibitions if the Commission makes certain findings.

3. The Montgomery County Procurement Law.

Although the requester understandably inquired only about the inhibitions of the Ethics Law, the request also implicates §11B-52(a) of the Montgomery County Procurement Law. That law prohibits a contractor from employing certain public employees while having a contract with the County:

Unless authorized by law or the Ethics Commission under Chapter 19A, a person while engaged in a procurement matter with the County must not employ or offer to employ a public employee if the duties of the public employee include significant participation in the procurement matter. Public employee, employ, and significant participation as used in this section are defined in Chapter 19A.

Conclusion & Advice

Applying the applicable law to the pertinent facts presented by the requester, the Commission concluded:

1. A member of the Committee is a "public employee" for the purposes of the County Ethics Law and the County Procurement Law;

2. However, because the Committee will play no part in the award or administration of the consultant contract, the requester would not be an employee of a "business" that contracts with the County agency with which the requester is affiliated as a public employee and his duties as a member of the Committee would not include significant participation in the procurement of electric utility deregulation consultant services.

3. The facts presented did not suggest that the requester had or will use the prestige of his office as a member of the Committee for his private gain or the gain of another. Neither do they indicate that his private employment would impair his impartiality and independence as a member of the Committee, as long as he recuses himself from any Committee discussion or action regarding electric utility deregulation if he or his firm obtain the consultant’ s contract with the County.

Therefore, the Commission advised the requester that neither the Ethics Law nor the Procurement Law prohibited him or his firm from submitting a proposal in response to the RFP for consultant services for electric utility deregulation and, if selected, entering into a contract to perform those services. However, the requester also was advised that unless he obtains a waiver he must recuse himself from any Committee discussion or action regarding electric utility deregulation if he or his firm ultimately is awarded the contract.

 

Advisory Opinion 1998-8

MONTGOMERY COUNTY ETHICS COMMISSION

ADVISORY OPINION

June 10, 1998

An Associate County Attorney, who entered her appearance as co-counsel for Montgomery County in the appeal of an action against a certain bank, asked the Commission if the conflict of interest provisions of §19A-ll(a)(2)(H) of the Ethics Law prohibit her from participating in the appeal because she maintains two bank accounts at and has two outstanding loans with the bank.

Pertinent Facts

1. The requester entered her appearance as co-counsel on behalf of the County in a matter in the Court of Special Appeals of Maryland in which the County seeks review and reversal of an adverse decision of the Circuit Court for Montgomery County in a dispute between the County and the bank.

2. The requester maintains two deposit accounts at the bank and has two motor vehicle loans presently outstanding with the bank.

3. The income from the deposit accounts is less than $1,000 per year.

4. The loans do not constitute a source of income and do not have a mechanism for alteration absent a payment default.

5. The outcome of the litigation will have no impact on either the deposit accounts or the loans.

Applicable Law

The Montgomery County Code prohibits a public employee from participating in certain matters if a creditor or debtor of the employee can directly and substantially affect an economic interest of the public employee or a relative of the public employee:

(a) Unless 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:

* * *

(H) any creditor or debtor of the public employee or a relative if the creditor or debtor can directly and substantially affect an economic interest of the public employee or relative.

Montgomery County Code, §19A-ll. For the purposes of this provision, "interest or economic interest" means "any source of income or any other legal or equitable economic interest, whether or not subject to an encumbrance or a condition, which is owned or held, in whole or in part, jointly or severally, directly or indirectly."

Conclusion & Advice

On the facts presented by the requester, the Commission concluded that the bank cannot directly and substantially affect an economic interest of the public employee or a relative of the public employee. Therefore, the Commission advised the requester that §19A-ll(a)(2)(H) did not prohibit the requester from participating in the appeal.

 

Advisory Opinion 1998-9

MONTGOMERY COUNTY ETHICS COMMISSION

ADVISORY OPINION

July 21, 1998

The Ethics Commission received and considered a letter from a former employee requesting a waiver, if necessary, to perform work on a County contract as an employee of the contractor.

PERTINENT FACTS

1. The requestor resigned from Montgomery County employment in February 1998.

2. The requestor was employed by Montgomery County for twelve (12) years, the majority of which the requestor served as Chief of Procurement Operations.

3. The last two years of employment with the county the requestor was assigned to the 800 MHz Public Safety Radio Project and did not work as Chief of Procurement Operations.

4. During the period of employment with Montgomery County as Chief of Procurement Operations, the requestor was responsible for the administration of County contracts which included a contract with KPMG in 1989 for the installation of the County’s automated procurement system and subsequent upgrade of both the procurement and financial systems by KPMG in 1993. The contract with KPMG is still valid and KPMG provides annual maintenance support.

5. KPMG has been advised that the County’s Department of Finance intends for KPMG to upgrade the County’s financial system if funding is approved and the County and KPMG successfully negotiate an amendment to the existing contract.

6. The requestor believes it is in the County’s best interest to permit her to work on the contract because she has an intimate knowledge of both the County’s procurement office operations and KPMG’s purchasing software.

APPLICABLE LA W

Section 19A-13 of the Montgomery County Code restricts the employment of a

former county employee under two circumstances. First, there is a general one-year ban with respect to employment of a former county employee by a county contractor under certain circumstances (the " 1 Year Total Ban") .For one year after the effective date of termination from County employment a former public employee may 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 significantly participated in regulating the person or business or had official responsibility concerning a contract with the person or business (except a non-discretionary contract with a regulated public utility). §19A-13(b).

Second, there is a ten-year ban on employment with regard to specific matters (the "10 Year Partial Ban"). A former county employee is prohibited from accepting employment or assisting 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. §19A-13(a).

The Commission is authorized to waive either of these prohibitions upon a written request and under certain circumstances. In particular, the Commission may grant a waiver of the prohibitions of subsection 19A-13 if it finds: (1) failing to grant the waiver may reduce the ability of the County to hire or retain highly qualified public employees; or (2) the proposed employment is not likely to create an actual conflict of interest. §19A-8(c). If the Commission determines that a waiver should be granted, the Commission may impose conditions appropriate to fulfill the purposes of the Ethics Law and must disclose to the public any waiver that it grants.

CONCLUSION

Although the requestor had official responsibility on behalf of Montgomery County for the KPMG contract, she is not restricted by the 1-Year Total Ban because more than one year has elapsed since she participated in the contract. However, the 10-Year Partial Ban continues to apply to her with regard to the KPMG contract with Montgomery County, and will continue for the remainder of ten years from the date she no longer participated in the contract. In particular, although she may be employed by KPMG, she may not work on the contract on which she significantly participated as a county employee.

The Commission cautions that, in its opinion, the ten year ban with respect to the KPMG contract applies to any and all forms of assistance, including, but not limited to, assisting in the preparation of any claim under or extension of the current contract and any bid or proposal on a new contract with Montgomery County .The requestor may not, during the 10 year period, perform any service, directly or indirectly, for KPMG in connection with that contract or any successor contract. She also may not, in the opinion of the Commission, disclose to KPMG any confidential information that she acquired as a county employee concerning a county agency or otherwise use confidential information acquired as a county employee for her own personal gain or that of another. Montgomery County Code, §19A-15.

 

Advisory Opinion 1998-10

MONTGOMERY COUNTY ETHICS COMMISSION

ADVISORY OPINION

November 10, 1998

A manager in the Department of Permitting Services requested an advisory opinion on whether she could serve on the Board of Directors of the Montgomery County Students Construction Trades Foundation, Inc. Her request apparently was founded on the understanding or concern that service on the Foundation’s Board constitutes "other employment" for the purposes of the Montgomery County Public Ethics Law, which prohibits a county employee from engaging "in any other employment unless the employment is approved by the Commission."

Pertinent Facts

The request provided the following pertinent information: 1) the Foundation is nonprofit foundation established by the Montgomery County Public Schools and local businesses and professionals to promote vocational education; 2) members are not compensated; 3) the Construction Trades program permits Montgomery County public school students the experience of having a role in the development and construction of a sellable house; and 4) all proceeds from the sales of the houses are returned to the program to cover its costs.

Applicable Law

If, as the Commission understands, members of the Foundation’s Board are not compensated for their service, membership on the Board does not constitute "other employment" and therefore does not require approval by the Ethics Commission. Nevertheless, attention is called to the prohibitions set forth in the Conflicts of Interest provisions of the Ethics Law. In particular, §19A-ll(a)(2) of the Ethics Law prohibits a public employee from participating in any matter if the public employee knows or reasonably should know that any party to the matter is any business in which the public employee is an officer, director, or trustee unless the county employee applies for and receives a waiver by the Commission.

Findings

Applying the applicable law to the pertinent facts presented by the requester, the Commission concluded that although the requester did not need the Commission’s approval to accept the appointment, as a county employee, the requester must seek and obtain a waiver before participating, as a county employee, in any matter m which the Foundation is a party.

Furthermore, although the requester may accept the appointment, care must be taken not to violate the misuse-of-prestige-of-office provisions of §19A-14. Those provisions prohibit:

(a) a public employee from intentionally using the prestige of his or her office for private gain or the gain of another;

(b) a person from using an official County or agency title or insignia in connection with any private enterprise, unless expressly authorized by the Chief Administrative Officer; and

(c) a public employee from using any County agency facility, property, or work time for personal use or for the use of another person unless the use is generally available to the public or authorized by a County law, regulation, or administrative procedure.

Conclusion

In summary, the Ethics Law does not prohibit the requester from accepting appointment to the Board of the Montgomery County Students Construction Trades Foundation and does not require Commission approval of that service. However, depending upon the authority of the Board, the requester may be required to refrain from acting as a county employee on matters involving the Foundation, unless the requestor: first obtains a waiver from the Ethics Commission with respect to a particular action or kind of action. Furthermore, the prestige-of-office provisions will prohibit the use of the requester’s office, title or county time or resources to benefit the Foundation, absent appropriate authorization.

 

Advisory Opinion 1998-11

MONTGOMERY COUNTY ETHICS COMMISSION

ADVISORY OPINION

December 16, 1998

Pursuant to Section 19A-7 of the Montgomery County Public Ethics Law, a department head requested an advisory opinion on the following questions:

[W]hether a Montgomery County police officer may, consistent with Montgomery County ethics law, write a letter to the editor in which s/he identified him or herself as a Montgomery County Department of Police Officer. If so, would the opinion of the Ethics Commission be the same if the officer also identified him or herself by rank?

APPLICABLE LAW

The pertinent provisions of the Montgomery County Ethics Law are Section 19A-14(a) and (b) of the Montgomery County Code:

(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 prohibited by this subsection.

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

From time to time, the Commission also promulgates regulations as appropriate;

however, there is no Ethics regulation pertinent to your questions.

ANALYSIS & OPINION

The emphasized language constitutes essential elements of the two Public Ethics Law prohibitions in this area. Only the intentional use of the prestige of one’s office for private gain or the gain of another is prohibited. Similarly, only the unapproved use of an official County or agency title or insignia in connection with any private enterprise is proscribed. Absent such factors, the Ethics Law does not prohibit one from identifying himself as a Montgomery County Police Officer, even by rank, in a letter to the editor or otherwise.

Of course, this advisory opinion is necessarily limited to the provisions of the Public Ethics Law as applied to the general questions presented in your letter. The facts of a specific situation could bring a letter to the editor within one of the Public Ethics Law prohibitions; however, the Commission will not speculate about such facts. If you are concerned about a specific situation, which you believe satisfies those requirements, you may seek another advisory opinion based on specific factual allegations or file a complaint with the Commission. In addition, other laws or regulations, such as personnel laws and regulations, may prohibit such letters. However, the restraints of other laws and regulations are beyond the ken of this Commission, and we neither express nor intimate any opinion concerning any law or regulation other than the Montgomery County Public Ethics Law.

 

Advisory Opinion 1998-12

MONTGOMERY COUNTY ETHICS COMMISSION

ADVISORY OPINION

December 16, 1998

A County official has requested an advisory opinion "regarding various potential situations which might occur" as a result of his relationship with a law firm with which he was affiliated.

FACTS PRESENTED

The official’s letter presented the following material facts:

1. He is a partner in a law firm that was established in 1985.

2. The firm represents approximately 150 condominium and homeowner associations throughout the Washington area, many of which are in Montgomery County.

3. He intends to abandon his partnership interest in the law firm effective December 31, 1998.

4. His current partner will reconstitute the partnership effective January 1, 1998, with another attorney, who is no relation to the official but, coincidentally, bears the same last name.

5. Commencing January I, 1999, the official will become "of Counsel" to the new firm. In that capacity he will continue to service clients of the firm, providing them "legal opinions and advice regarding various issues." He will, however, have no partnership interest in the new firm. His relationship will be that of "an independent contractor working on a part time basis," and he will be paid by the firm on an hourly basis for work performed on behalf of the firm’s clients.

6. He will not represent any client before any Maryland or Montgomery County government agency or quasi-judicial agency, or interact with the executive branch of Montgomery County government on behalf of any client.

7. He will recuse himself "from voting on any matter in which the firm is involved."

QUESTIONS PRESENTED

The official asked the Commission a number of questions regarding the application of the Public Ethics Law to these facts. The first six concerned potential restraints on the acts of his former partner and other members or employees of the new firm. The remaining questions concerned his activities on behalf of the new firm and its clients.

With regard to the official’s former partner and other members and employees of the new firm, the official asked whether they may represent clients before the Montgomery County Commission on Common Ownership Communities; the Montgomery County Board of Appeals; the Maryland-National Capital Park and Planning Commission in connection with any zoning changes or any other issue, including special exceptions; the County Council in connection with land-use matters, e.g., zoning changes, master plans, etc., or any other matter; and the County Council and the County Executive regarding legislation, e.g., storm water management pond inspections and repairs. He also asked if they may represent clients in attempting to obtain executive branch agency action, e.g., advocating for certain code interpretations with the Department of Planning Services, lobbying for certain items such as traffic lights adjacent to condo associations, etc.

With regard to the official’s activities, he asked if he may, as an independent contractor to the firm, continue to represent and advise clients on matters unrelated to Montgomery County government--even though the firm also is representing the same client before other Montgomery County agencies--so long as: (1) he is not involved in any such matter; and (2) recuses himself from voting on any such matter.

APPLICABLE LAW

The questions the official raised implicated several provisions of the Montgomery County Public Ethics Law, which is codified as Chapter 19A of the Montgomery County Code, and Ethics Commission Regulation 32-97.

1. Conflicts-of-Interest Provisions.

The conflicts-of-interest provisions of the Public Ethics Law are set forth at §19A-ll(a). In pertinent part, these provisions prohibit a public employee from participating as a public employee in, among other things:

(1) any matter that affects, in a manner distinct from its effect on the public generally, any business in which the public employee has an economic interest;

(2) any matter if he or she knows or reasonably should know that a party to the matter is a business in which the public employee has an economic interest as an employee; or

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

These provisions also prohibit a public employee from: (1) intentionally using the prestige of his or her office for private gain or the gain of another; (2) disclosing confidential information relating to or maintained by a County agency that is not available to the public; or (3) using confidential information for personal gain or the gain of another. §§19A-14(a) and 19A-15(a).

After receiving a written request, the Commission may waive any of these provisions if certain standards are met. §19A-8.

2. Other Employment Provisions.

a. The Public Ethics Law. Section 19A-12 of the Public Ethics law contains a number of general and specific restrictions on the "other employment" of public employees. Subsection (a) generally prohibits a public employee, including the official, from engaging in any "other employment" unless the employment is approved by the Commission. If the Commission approves the "other employment," it may impose conditions on its approval Id. In pertinent part, subsection (b) specifically restricts a public employee from holding any employment relationship that would impair the impartiality and independence of judgment of the public employee, unless the Commission grants a waiver under 19A-8(b). Subsection (c)(4) exempts elected public employees from these restrictions "in regard to employment held at the time of election, if the employment is disclosed to the Board of Supervisors of Elections before the election. " After receiving a written and subject to statutory standards, the Commission also may waive any of these provisions. §19A-8.

b. The Outside Employment Regulation. The "other employment" provisions of the Public Ethics Law are supplemented by an Outside Employment Regulation of the Commission. In pertinent part, the Regulation prohibits county employees, including the official, from being "employed by or having any economic interest in any business subject to the authority of or doing business with the county agency or department for which they work." ¶4.4. The Regulation also authorizes the waiver of its provisions in accordance with the criteria established in §19A-8 of the Code. ¶4.13.

3. Underlying Policy and Liberal Construction of the Public Ethics Law.

Both the "other employment" and "conflicts-of-interest" provisions are expressly intended to be "liberally construed" to accomplish the policy goals of the Public Ethics Law. §19A-2(d). Those goals are embodied in "legislative findings and statements of policy" set forth at subsections (a), (b) and (c) of §19A-2:

(a) Our system of representative government depends in part on the people maintaining the highest trust in their officials and employees. The people have a right to public officials and employees are impartial and use independent judgment.

(b) The confidence and trust of the people erodes when the conduct of County business is subject to improper influence or even the appearance of improper influence.

(c) To guard against improper influence, the Council enacts this public ethics law. This law sets comprehensive standards for the conduct of County business and requires public employees to disclose information about their financial affairs.

Violations of the Public Ethics Law are subject to various civil and criminal sanctions. §§19A-27-32.

ANALYSIS & ADVISORY OPINION

The conflicts-of-interest provisions of the Montgomery County Public Ethics Law do not proscribe the independent activities of the outside employers of individuals who also are public employees. Therefore, the requester’s public office does not prevent any member or other employee of the new firm from representing clients before the Montgomery County Commission on Common Ownership Communities, the Montgomery County Board of Appeals, the Maryland-National Capital Park and Planning Commission, the County Council, or in attempting to obtain executive branch agency action of any kind.

Nor do the conflict-of-interest provisions limit the official’s activities as a private employee. His activities as a public employee, however, are limited by those provisions. He may not participate as an official in any matter if he knows or reasonably should know that the firm is a party to the matter or represents a party to the matter. For these purposes, participation includes more than just voting. It reaches any action of any kind as a public official. For example, it not only precludes him from participating in a hearing on the matter, but also prohibits him from discussing any aspect of the matter with his colleagues, staff or any other Montgomery County official or employee. His recusal from the matter must be complete and total.

The conflicts-of-interest provisions of the Public Ethics Law also prohibit him from "intentionally using the prestige of his office for private gain or the gain of another," and from disclosing confidential information (relating to or maintained by a County agency) that is not available to the public or using confidential information for personal gain or the gain of another.

Although the conflicts-of-interest provisions do not limit his activities as a private employee, the "other employment" provisions of the Public Ethics Law do. In particular, these provisions prohibit him from engaging in any "other employment’ unless it is approved by the Commission, and that approval may contain conditions. Furthermore, because the Public Ethics Law defines the term employment or employ to mean "engaging in an activity for compensation," this "other employment" approval requirement and its conditions apply whether the "other" relationship technically is, at common law, an employer/employee relationship or an independent-contractor relationship.

The Commission also considered the Ethics Regulation’s mandate that county employees not be employed by or have an economic interest in any business doing business with the county agency or department for which they work. At first blush, this prohibition might appear to be broad enough to prohibit an official from being employed by a law firm that represents clients before the public body on which the official sits. The phrase "doing business with" is however, defined for the purposes of the Public Ethics Law. §19A4(e) defines the term to mean:

(1) being a party with a County agency to transaction that involves at least $1,000 during a year;

(2) negotiating a transaction with a County agency that involves at least $1,000 during a year; or

(3) submitting a bid or proposal to a County agency for a transaction that involve at least $1,000 during a year .

Because this definition limits the phrase to transactions with county agencies,

representing clients before a public body is not "doing business with" the public body, as that phrase is defined for the purposes of the Public Ethics Law. Therefore, the official’s employment by the new firm is not proscribed by the Regulation.

In sum, in order to engage in the relationship described, the official must: (1) obtain the approval of the Commission; (2) comply with any conditions the Commission places on its approval of that "other" employment; and (3) refrain from the activities prohibited by the conflicts-of-interest provisions of the Public Ethics Law.

OTHER EMPLOYMENT APPROVAL

Based on the facts as presented in his letter, the Commission has approved the official’s employment by the new firm in the capacity stated, subject to: (1) the attached General Supplemental Conditions; and (2) the following special conditions:

Special Conditions

 

1. He must not participate, as an employee of or independent contractor with the ~ in any matter (litigation, advice, research or other kind) involving:

(a) Montgomery County, Maryland;

(b) any officer, employee or unit of Montgomery County, Maryland; or

(c) any other public officer, employee, agent or agency funded, in whole or in part, by Montgomery County, Maryland.

2. He must not advise, represent or otherwise participate in providing any legal service to or on behalf of a client on any matter at the same time the firm is advising, representing or otherwise providing legal services to or on behalf of that client in connection with any matter that is or will come before the public body of which he is a member or any other officer, employee, agent or unit of the legislative branch of Montgomery County, Maryland;

3. Except as provided in §19A-11(b)(1) of the Public Ethics law, the official may not participate as a county employee in any matter that affects the firm, either directly as a business entity or indirectly in its affects the firm, either directly as a business entity or indirectly in its representation of a client, unless he applies for an receives a waiver from the Commission with respect to the particular matter; and

4. He must require the firm to erect appropriate administrative "barriers" that effectively insulate him from every matter in which his participation is prohibited by one or more of these special conditions.

This approval of the "other employment" described in his inquiry does not constitute a waiver for the purposes of the conflicts-of-interest provisions of the Public Ethics Law or for any other purpose. Thus, he must continue to comply with all other applicable provisions of the Public Ethics Law, including, by way of example but not limitation, the prohibition of the intentional use of the prestige of his office for his private gain or that of another (§19A-14) and the prohibition of the disclosure of confidential information (§19A-15). If particular circumstances arise that require a waiver and appear to meet the appropriate standard, he may request a waiver.

 

Note: Some Ethics Commission decisions may only be available in Portable Document Format (PDF). In order to view and print PDF files, you may need to download the free Adobe Acrobat Reader Software

 

» Return to Listing of Advisory Opinions & Waivers