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Montgomery County Ethics Commission
Text of Advisory Opinions - 1999

Advisory Opinion 1999-1

MONTGOMERY COUNTY ETHICS COMMISSION

ADVISORY OPINION

February 10,1999

The Montgomery County Ethics Commission has been asked by an agency head for advice regarding the outside employment of a county employee as a private attorney. The question arises in connection with the consideration of an employment application by an individual who currently practices law as a sole practitioner and, if employed by the County, would want to continue practicing law on a limited basis. The agency head has sought an opinion on the question of whether the Montgomery County Ethics Law and the Ethics Commission would permit a county employee to engage in "outside employment" in the private practice of law as a sole practitioner.

 
PERTINENT FACTS

1. The applicant, a private attorney with a background in business counseling and an undergraduate degree in Finance, has applied for employment by Montgomery County as a Business Development Specialist.

2. As a private attorney, the applicant counsels small businesses and employees on employment law issues, including drafting employment handbooks, employment contracts, non compete/nonsolicitation/non-disclosure agreements, severance agreements, and retirement plans. The applicant also counsels private law clients on corporate and non-profit issues.

APPLICABLE LAW

This request implicates several provisions of the Montgomery County Public Ethics Law, as well as Ethics Commission Regulation 32-97.

1. "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" or "outside" employment of county employees. Subsection (a) generally prohibits a county employee from engaging in any "other employment" unless the employment is approved by the Commission. If the Commission approves the "other" or "outside" employment, it may impose conditions on its approval. Id Subsection (b) specifically prohibits a county employee from, among other things, holding any employment relationship that would impair the impartiality and independence of judgment of the county employee, unless the Commission grants a waiver under 19A-8(b). After receiving a written request and subject to statutory standards, the Commission also may waive any of these provisions. Id.

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 from being "employed by or having an 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 prohibits county employees from engaging in outside employment during the hours for which they are scheduled to work for the county, ¶4.1; and forbids the use of county property in the discharge of their outside employment, ¶4.5. Any provision of the Regulations may be waived in accordance with the criteria established in §19A-8 of the Code. ¶4.13.

2. 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 one from participating as a county 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 county 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 county employee has an economic interest as an employee; or

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

(4) any debtor of the county employee if the debtor can directly and substantially affect an economic interest of the county employee.

These provisions also prohibit a county 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-l5(a).

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

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. Those goals are embodied in "legislative findings and statements 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 County business and requires public employees to disclose information about their financial affairs.

Ethics Law violations are subject to both civil and criminal sanctions.

ANALYSIS

As a general rule, the conflicts-of-interest provisions of the Montgomery County Public Ethics Law do not limit a county employee’s activities as a private employee. A county employee’s activities as a county employee, however, are limited by those provisions. For example, a county employee who engages in the private practice of law may not participate as a county employee in any matter if he or she knows or reasonably should know that a private client is a party to the matter. For these purposes, participation includes any action of any kind as a county employee, e.g., it precludes the county employee from discussing any aspect of the matter with county colleagues, staff or any other Montgomery County official or employee. The county employee’s recusal from the matter must be complete and total.

The conflicts-of-interest provisions of the Public Ethics Law also prohibit a county employee from intentionally using the prestige of his or her 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 conflict-of-interest provisions do not limit directly a county employee’s activities as a private employee, the "other employment" provisions of the Public Ethics Law do. In particular, these provisions prohibit a county employee from engaging in any "other employment" unless it is approved by the Commission, and that approval may contain conditions. §19A-12(a). In addition, under certain circumstances an employee may not engage in outside employment unless the Commission grants a waiver in accordance with certain statutory standards. §19A-12(b). There also is an Ethics Commission Regulation concerning outside employment. Among other things, the Regulation prohibits county employees from being employed by or having an economic interest in any business doing business with the county agency or department for which they work, §4.5; prohibits them from engaging in outside employment during the hours for which the are scheduled to work for the county, §4.1; and forbids the use of county property in the discharge of their outside employment, §4.5.

In sum, in order to engage in "outside employment" as a private attorney, a county employee must: (1) obtain the approval of the Commission; (2) comply with the conditions, if any, of that approval; and (3) refrain from engaging in any activity prohibited by the conflicts-of-interest provisions of the Public Ethics Law.

Attached is a copy of the General Supplemental Conditions the Commission would place on any outside employment approval. In addition, the Commission could be expected to place the following kinds of special conditions on its approval of the outside employment of a county employee as an attorney engaged in the practice of law as a sole practitioner:

Special Conditions

1. The county employee must not participate as a private attorney in any matter (litigation, advice, research or any other kind of matter) involving:

(a) Montgomery County, Maryland;

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

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

2. Except as provided in §19A-ll(b)(1) of the Public Ethics Law, a county employee may not participate as a county employee in any matter that affects any of his or her private clients, unless the employee applies for and receives a waiver from the Commission with respect to that particular matter; and

3. A county employee may permit biographical information published about the employee as a private attorney to note, along with other professional and legal accomplishments, that he or she is a county employee and the nature of the county employment. However, those kinds of statements must be limited to truly biographical information and may not be phrased to suggest that clients would benefit from the attorney’s employment by the County.

ADVICE

The Commission advised that, based on the information presented to the Commission and set forth above, a county business development specialist could engage in the private practice of law, as described above, without a conflict-of-interest within the meaning of the Public Ethics Law. Such an employee, therefore, could expect the Commission to approve a request to engage in such outside employment, subject to the Commission’s General Supplemental Conditions and the special conditions set forth above.

This advice did not constitute either an approval of outside employment or a waiver for the purposes of the Public Ethics Law. Thus, if employed by the County, the individual must comply with all 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/her office for 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, the employee may request a waiver.

 

Advisory Opinion 1999-2

June 3, 1999

Rockville, Maryland 20850

Dear . . . . . :

`In a February 9, 1999 memorandum, you wrote to the Commission stating, in pertinent part that:

1. you are the . . . . . of the Department of Public Works and Transportation’s Division of . . . . . ;

2. you soon would be eligible for retirement;

3. . . . . . has expressed an interest in hiring you if you decide to retirement;

4. . . . . . has a contract with Montgomery County under which it provides construction management services supporting the.....project currently under construction: and

5. the County’s Contract Administrator for the . . . . . contract works in your division.

You, therefore, requested:

an advisory opinion "on the definition of the term ‘official responsibility’ as . . . . . used in Section 19A-13(b)(2) and whether [your] responsibilities as a . . . . . constitute "official responsibility" for the . . . . . and,

a waiver of the one year moratorium of Sec 19A-13(b) on entering into employment with . . . . .

In support of your request, you described your responsibilities as Chief of DFS as follows:

"My primary responsibility as . . . . . . . . . . is to make facilities available for County programs. I also have charge of the County’s . . . . . Facilities are made available in several ways; maintenance, care and renovation of existing facilities. I discharge my responsibilities through three Section Chiefs."

Your memorandum also described: (I) the responsibilities of your direct subordinate, the Chief, as well as the . . . . . program managers who report to the . . . . . Chief, and (2) the . . . . . manager selection process.

You further advised the Commission:

"I do not sit on vendor selection teams. Nor do I participate in contractor performance evaluations, billings review or payment processing. I develop and approve policy and standards to guide the section chiefs and managers; assist in the development of strategic facility plans to support County initiatives, prepare, review and defend budgets; and, on occasions, assist the Project Managers by acting as an expediter to get documents through the procurement process i.e. County Attorney and Contract Review Committee."

Your memorandum then addressed why, in your view, the Commission should grant a waiver of §19A-13(b) of the Ethics Law. Among other things, you stated that if you are employed by . . . . . your responsibilities will not include work on any contract with Montgomery County government or the "marketing of Montgomery County government" for a period of 12 months.

After reviewing the request and discussing the matter preliminarily at its February meeting, the Commission instructed the Associate County Attorney who is counsel to the Commission to investigate and report to it regarding your responsibilities and activities in connection with the . . . . . contract.

Counsel submitted his report to the Commission in a memorandum that was reviewed at the Commission’s March meeting. The report revealed significant involvement by you in the original award of the . . . . . contract and in every amendment of that contract, including a relatively recent, major modification of the contract. In pertinent part, Counsel reported:

. . . . . Agreement Overview

As described in a June 8, 1998, memorandum from Associate County Attorney Melnick:

On December 1, 1989, the County entered into a contract with . . . . . Project Management, Inc. (" . . . . . "), the purpose of which was for professional construction program management for the . . . . . At the time of this contract, the precise manner of construction, management and nature of contractual relationships to perform the work was yet to be determined. The contract named as the . . . . . Program Manager (CPM) "for any and all phases of the Project." (Contract, page 1) . . . . . was required to work in "cooperation with, and reliance upon, the services of the Design Consultant. As CPM, it agreed to "furnish business administration and management services, and to perform in an expeditious and economic manner consistent with the interests of the County".

The parties entered into Amendments on March 13 and August 31, 1990, which varied the scope of services and increased compensation. The contract had no fixed term, but did identify the duration for each of the five phases, and for the project as a whole. The duration for all services under the contract passed in approximately 1994, with no amendment to the contract.

The County Council recently approved funding for the New . . . . . , at least in part based on . . . . . continuing efforts in the Pre-Design and Design Phases. DFS hopes that the Design Phase will be completed, and that the Construction Phase will begin, by October of 1998. It has a project completion target date of March or April 1999.

DFS would like to amend the project management contract with . . . . . , to expand services. It also desires to enter into approximately 23 prime contracts for construction, wherein the County would act as General Contractor and. . . . . . would be Project Manager.

June 9, 1998 memorandum from Mr. Melnick to . . . . . Chief, . . . . . 

The expansion that DFS desired and ultimately achieved was significant, both as a matter of construction contracting policy and in terms of the compensation . . . . . would receive. Whereas Montgomery County traditionally had obtained construction services through a prime contract, with the prime contractor subcontracting-as its sole responsibility and at its own risk-for a variety of specialized services (e.g., electrical, plumbing, etc.), the proposed expansion or modification would have the County use a construction manager, with the County itself contracting with multiple specialty contractors as prime contractors. As a matter of construction contracting policy, this was a legally permissible approach, but one that presented significant policy questions, increased liability exposure, and had not been used previously by Montgomery County. Both the County Attorney’s Office and the Office of Procurement had reservations about whether the County had the resources to undertake this role, and whether projected cost savings were accurate in view of the increased risks . . . . . will be compensated in excess of $1 million dollars for the increased services.

In an unattributed, one-page, June 10, 1998, document in the Office of Procurement file, the pros and cons of the proposal to amend the . . . . . contract were stated as follows:

PROS

Direct control over contractors performing work.

Elimination of the risk of a litigious General Contractor who may systematically plan for major claims, and solicits and coordinates same from subs.

May improve probability of project being built with a harmonious team relationship among the parties.

Savings of 1.8 million.

Increased contracting opportunities with local and minority firms.

Greater, and earlier, visibility of contract and construction issues which may impact project cost and schedule.

CONS

The solicitation of 23 separate [contractors], with the possibility of protests etc. that could delay the project’s completion.

Liability exposure arising from acts or omissions of multiple contractors on the site. Who dropped the banana peel?

Enormous risk of extensive claims by 23 contractors, resulting from other contractors failing to perform work timely along the critical path of construction.

Pertinent Chronology of the . . . . . Contract

1989

July 24, 1989 . . . . . responsibilities in this matter date back to at least July 24,1989, when, as Chief of the . . . . . Section, he joined in a memorandum requesting that the Contract Review Committee (CRC) approve the solicitation of proposals for Project Management Services at the . . . . . That memorandum identified the members of the Qualification and Selection Committee (QSC), which is a committee established by a "Using Department" for the purpose of evaluating responses submitted by offerors. The memorandum identified . . . . . as the team leader of the QSC for the proposed solicitation.

July 27, 1989. . . . . . appeared before the CRC regarding the . . . . . Project Management Services RFP.

July 31, 1989. . . . . , as Chief, . . . . . Division, joined in a memorandum to John A. Battan, Acting Director, Office of Procurement, concerning changes that had been made in the RFP "per CRC meeting on July 27, 1989.

August 2, 1989. L. White of OAS-DFS sent draft minutes of the July 27, 1989, CRC meeting to the Office of Procurement and copied . . . . .

August 10, 1989. . . . . . wrote to the Acting Director of Procurement requesting certain changes in the draft minutes of the July 27, 1989, CRC meeting.

September 6, 12, and 18, 1989. The QSC met and screened the 15 written proposals received in response to the . . . . . Project Management Services RFP, and ranked . . . . . as the second of the three top rated offerors . . . . . participated as a member of the QSC.

October 4,1989. The QSC conducted interviews and, thereafter, rated as . . . . . the top offeror.

December 10, 1989. . . . . . joined, as Chief of the. Management Division of the Dept. of Facilities and Services, in a memorandum to the Acting Director, Office of Procurement, Dept. of Finance, recommending awarding the . . . . . project manager contract to . . . . . . The memorandum listed the QSC members, including . . . . . , and offered their recommendation that the contract be awarded to . . . . . . Attached to the memorandum was a record of the selection process which included the usual QSC certifications, including the certification of . . . . . .

October 17, 1989. Mr. Larry White sent the CRC draft minutes of the CRC’s 10/12/89 meeting. Item 12 on the agenda of that meeting was entitled . . . . . . The minutes state that . . . . . was present and there was "a brief discussion." A motion to award the contract to . . . . . was made, seconded and unanimously approved.

November 15, 1989. The County and . . . . . entered into an agreement for construction management services for the . . . . . name appeared in three places:

Paragraph 16 of the Agreement identified . . . . . as the County’s contact for "any notice required by this Agreement or other communication."

The signature page of the Agreement carried the recommendation of . . . . . .

Article 15 of the Agreement’s ATTACHMENT C (SUPPLEMENTAL GENERAL CONDITIONS OF CONTRACT) provided for . . . . . to maintain certain insurance, and required that the Certificate Holder be "Montgomery County Government Attn: . . . . ."

November 16, 1989. Mr. White sent to the Chief of Purchasing and Materiel Management Division, Dept. of Finance, a form "padm 56:Rev 03/21/86," dated November 16, 1 (sic), furnishing information to assist in processing and reporting the contract awarded to . . . . .

November 17, 1989. was among those who signed a memorandum recommending that the Acting Director of the Office of Procurement approve the contract negotiated with . . . . . .

1990

January 25, 1990. Under cover of a letter to . . . . . , a . . . . . vice- president, . . . . . , submitted, as requested, a ‘proposal to accelerate the submission of the draft program of requirements." On the same date, . . . . . recommended proposed Amendment No.1 by signing his name for that purpose on the signature page of the Amendment.

February 2, 1990. . . . . . sent . . . . . an original and four signed copies of Contract Amendment No. 1, and . . . . . then sent the amendment to the Director of the Office of Procurement, via the Director of the Dept. of Facilities & Services, recommending "awarding Amendment No.1."

February 9, 1990. The CRC approved Amendment No. I. The minutes of that meeting record that the matter was placed on the agenda via "FACILITY MEMO of 02/02/90, . . . . . 217-603 1," that . . . . . was present at the meeting, that there was a brief discussion regarding the matter, and that Amendment No.1 was approved.

March 13, 1990. The Director of the Office of Procurement signed . . . . . Contract Amendment No. 1, adding the Condensed Program of Requirements, as per the January 25th letter. The Amendment carried . . . . . written recommendation on its signature page, dated January 25, 1990.

July 13, 1990.  . . . . . , a . . . . . Vice-President, wrote to . . . . . submitting, as requested, a proposal to provide additional services for the . . . . . .

August 13, 1990. . . . . . wrote to the Director of the Office of Procurement, forwarding Amendment No.2 to the . . . . . contract for final processing and recommending approval . . . . . recommendation also appeared on the signature page of the Amendment.

August 16, 1990. Amendment 2 was the first item on the agenda of the CRC meeting. The minutes of that meeting state that . . . . . was present and that he addressed the need for the amendment.

August 21, 1990 . . . . . resubmitted Contract Amendment No.2 to the Director of the Office of Procurement for signature . . . . . recommendation, dated 7/18/90, appeared on the signature page of the Amendment.

1995

June 6, 1995 . . . . . , as Chief of the . . . . . Management Division, wrote to . . . . . regarding "Existing Site Feasibility Study, and instructed the company to proceed with its proposal, dated May 26, 1995.

1996

February 27, 1996. In a letter to . . . . . , . . . . . notified . . . . . to "proceed with the building component of the new 1100/900 facility cost estimate."

1998

March 25, 1998. . . . . . International’s Senior Associate . . . . . sent F&S’s Capital Projects Manager . . . . . "a revised Fee Proposal, Staffing Schedule, Scope of Work, Proposed Contract Modifications and Resumes of Key Staff for the . . . . . ." (Emphasis supplied.) The 15 page Scope of Services carried the title "revised 01/12/98."

March, 1998. DFS personnel contacted the County Attorney’s Office to schedule an April 1, 1998, meeting concerning a proposed modification to the . . . . . contract. Mr. Hansen, via voice mail, assigned the matter to Associate County Attorney Richard H. Melnick, who, among other things, advises and represents the Office of Procurement. Mr. Melnick’s notes regarding the assignment contain . . . . . name and telephone number.

April 1, and approximately May 1, 1998. Mr. Melnick met with representatives of DFS and the Office of Procurement. Mr. Melnick had several significant questions regarding the proposal. According to Mr. Melnick, the senior F&S representative, . . . . . , made it clear that this matter was very important to his direct superior, . . . . . Following one of these meetings, . . . . . himself approached . . . . . Mr .Melnick and talked with him regarding the importance of the proposal and questions that had been raised about it.

June 8, 1998. Mr. Melnick wrote to . . . . . and . . . . . regarding " . . . . . "Among those issues were the following :

Can the [ . . . . . ] contract now be amended to include the expanded scope of management services?

Can the County undertake the responsibilities of a general contractor and enter into multiple contracts to perform the construction?

Mr. Melnick advised the proposed amendment permissibly expanded the scope of services, and, therefore, could be amended. On the latter issue, he observed:

The decision to undertake the role and responsibilities of general contractor is one of policy, with legal implications. Deciding to enter into multiple prime contracts for the construction work requires a cost-benefit analysis including: monies saved; control desired; expertise and management available to monitor and be accountable for the progress and coordination of each prime contractor; the potential of liability and delay damages that may arise from the actions and omissions of one or more prime contractors; and, the potential for project delay.

June 18, 1998. Item No.5 on the CRC Agenda was the proposed modification of the . . . . . Contract. The CRC Agenda Assignment/Review and Decision Transmittal Form prepared by the Office of Procurement indicated that the projected cost of the proposed amendment was $2.5 million dollars.

The CRC expressed serious concerns about whether the County could obtain the desired services through a modification of the . . . . . contract, and about the prudence of a contract-manager/multiple-prime-contractors method, rather than the traditional single-prime contractor/multiple-subcontractors relationship. The Committee, therefore, deferred action on the item, and asked the County Attorney’s Office for legal advice.

July 1, 1998. At . . . . . request, a meeting was held in the Office of the County Attorney regarding this matter. Present were Mr . . . . . of DFS; County Attorney Thompson, Marc Hansen, Richard Melnick and Judson Garrett of the County Attorney’s Office; and Richard G. Hawes, Director of Construction, Montgomery County Public Schools System. Mr. Hawes was present at the request of DFS to brief the County Attorney on the School System’s successful use of the construction manager approach proposed by Amendment No.3. Mr. . . . . . was the principal spokesperson for DFS, and pressed strongly the case for Amendment No.3.

July 7, 1998. . . . . . wrote to the Director of the Office of Procurement requesting approval of an amendment to the . . . . . contract, i.e., Amendment No.3, to provide contract management services and a corresponding increase in . . . . . compensation in the amount of $1,045,833.

July 9, 1998. Associate County Attorney Garrett, as counsel to the CRC, submitted, on behalf of the County Attorney’s Office, a memorandum to the Chairman, in which he advised, in pertinent part:

At the request of the Contract Review Committee (CRC), I have reviewed the question of whether the proposed modification to the Construction Management Contract with Program Management, Inc., is legally permissible. I have concluded that although the modification may constitute a change beyond the scope of the competition, the modification nevertheless is legally permissible if the Committee determines that there is sufficient justification for acquiring the additional services from . . . . . on a non-competitive basis, e.g., on a sole source basis.

The Chief of the Division of DFS has submitted a memorandum to the Director [of Procurement] in which he states that . . . . . is intimately familiar with the project and that only . . . . . can meet the performance delivery date required by the County. If the CRC determines, as a matter of fact, that the proposed modification meets the criteria for a noncompetitive procurement, it may, in its discretion, approve the proposed amendment.

At its regularly scheduled meeting on the same day, the CRC again took up the matter of proposed Amendment No.3 to the . . . . . contract. The minutes reflect that Mr. and . . . . . represented the Dept. of Public Works and Transportation, DFS, and that the "County Attorney and CRC determined that the contract can be amended [ as proposed] provided the contract meets the sole source criteria for award." ...again was the principal spokesperson for DFS, and strongly pressed the case for Amendment No.3. Among other things, . . . . . advised that considerations of timeliness-as presented by the needs of a nearby school-as well as . . . . . unique knowledge constituted sufficient sole source justification. In addition, Mr.  . . . . . assured the CRC that, as a matter of fact, the services to be provided under the Amendment were within the scope of the competition for the original contract. The Committee approved the Amendment.

July 21, 1998. . . . . . wrote to the Chief Administrative Officer (CAO) recommending approval of the use of the a construction manager and multiple contractor approach for the construction of the . . . . . .

July 29,1998. The CAO wrote to . . . . . approving . . . . . recommendation of July 21, 1998.

Following its review of counsel’s report, the Commission granted your request to appear at its April meeting and address the matter in person. During that meeting, you acknowledged that you have had official responsibility for the . . . . . contract, and that the . . . . . project has been the Division’s most significant project during your approximately ten-year tenure with the County. You, therefore, requested that the Commission exercise its discretion, under §19A-8(c)(2), to waive the one-year prohibition of §19A-13(b) on the basis that your proposed employment is not likely to create an actual conflict of interest.

Even absent your acknowledgment, there would be no question about the applicability of §19A-13(b) to your . . . . . contract responsibilities. Because the term "official responsibility" is not defined by the County Ethics Law, it is to be given its natural and ordinary meaning considered in the light of the nature of the subject matter and the purposes to be accomplished by the legislation. The numerous actions you have taken over the years in connection with the . . . . . contract leave no doubt that as Chief of the . . . . . and, previously, as Chief . . . . . Section, you had, in your official capacity, responsibility for various aspects of the . . . . . contract. Therefore, the only question presented is whether, notwithstanding your official responsibility for the contract, the Commission, pursuant to §19A-8(c), should waive the one-year employment

prohibition of §19A-13.

The Montgomery County Public Ethics Law is founded on the following express

Legislative findings and statements 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. The Council also intends that this Chapter meet the requirement under state law that the County adopts legislation that is similar to the state public ethics law.

Montgomery County Code, Sec. 19A-2. (Emphasis supplied.)

Given your involvement and the involvement of your Division in the . . . . . contract—especially your pivotal role in the recent and significant amendment of that contract—the Commission is convinced that a waiver of the one-year prohibition on your employment by . . . . . could create an appearance of significant impropriety or improper influence and seriously erode the confidence and trust of the people in the conduct of County business.

Therefore, although the Commission has the discretion to waive the one- year prohibition on the ground that the proposed employment is not likely to create an actual conflict of interest, it declines to exercise that discretion given the facts of this matter, i.e., your significant involvement in this contract recently and over an extended period of time.

Very truly yours,

[signed]

Kenneth C. Jackson, Sr.

Chairman

NOTICE OF RIGHT TO JUDICIAL REVIEW

§19A-6(c) of the Montgomery County Public Ethics Law provides that a final decision of the Commission on a request for a waiver "may be appealed to the Circuit Court under the applicable Maryland Rules governing administrative appeals."

 

Advisory Opinion 1999-3

September 8, 1999

Re:  . . . . . 

Dear . . . . . 

At its meeting last night, the Ethics Commission reviewed your August 11, 1999, memorandum to Ms. McNally in which you requested that the Commission approve . . . . . for a temporary assignment with the . . . . . , as a result of the

early retirement of from the position of . . . . . within [your] Division." According to your memorandum:

 . . . . . retired from the County, as the . . . . . , in the . . . . . , with the effective date of July 1, 1998. As a for over 20 years, is very familiar with the preparation and monitoring of the Division’s Operating and CIP budgets, and with all the administrative procedures of the Division and the County. He acted as a Division Chief on many occasions and is, therefore, very well versed on what we do.

 . . . . . is not currently employed, nor has he been employed with any organization doing business with the Division or any other County agency. In fact, he has not been employed with anyone since his retirement.

 . . . . . has agreed to provide his services for this temporary assignment as a contractor/consultant, for a period not to extend beyond December 3, 1999, at or about the rate of pay he was making when he left the County Government service. The total cost of this assignment will be under $25,000.

The only Public Ethics Law restrictions on the employment of a former public employee are the so-called l-year and l0-year prohibitions of §19A-13 of the Montgomery County Code:

(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 nondiscretionary contract with a regulated public entity).

According to your memorandum,  . . . . . effective date of termination from County employment was July 1, 1998—more than one year ago. The l-year prohibition, therefore, is not applicable to . . . . . .

Secondly, nothing in your memorandum indicates that . . . . . is accepting any employment or assisting any party , other than a County agency , in a case, contract, or other specific matter in which he significantly participated as a public employee. If that is the case, then the 10-year prohibition also does not apply to the use of . . . . . services as described in your memorandum. If that is not the case, then the Commission requires a supplemental memorandum that sufficiently identifies the case, contract or other specific matter.

Very truly yours,

[signed]

Kenneth C. Jackson, Sr.

Chairman

 

Advisory Opinion 1999-4

December 20, 1999

1 This is a contract between Montgomery County, Maryland, and the . . . . . under which the latter operates the . . . . . , the County’s previous undated memorandum to the Ethics Commission’ s Executive Secretary regarding the employment of a former County Employee by the . . . . . .

Dear . . . . . :

By your letter of October 8, 1999, the . . . . . sought "assurance from the Ethics Commission that activities for which [the . . . . . is] funded by the County do not constitute lobbying." Your letter was prompted by an August 25, 1999, letter to the . . . . . from . . . . . CPS, the Department of Health and Human Services’ monitor for its contract with the . . . . . for the operation of the . . . . . . In pertinent part, . . . . . wrote:

[I]t appears that the . . . . . contract with the Department continues to provide nearly all the organization’s funding. One effect of this is that . . . . . funds appear to be supporting lobbying activities above and beyond the intent of the contract.

In recognition of this history and current situation, I am relaying the Department’s intent that the . . . . . should rely on outside support and funding for its advocacy efforts and devote County funds to expanding the operation of the . . . . . as an information, referral, outreach and education service. In addition, . . . . . staff whose salaries are paid from County contract funds may provide information and support services, but advocacy and possible lobbying activities are more appropriately performed by board members and other community volunteers.

After discussing future contracting, . . . . . letter made two requests for this fiscal year:

1. Assurance from the Ethics Commission and the . . . . . board that activities funded by the County do not constitute lobbying.

2. A workplan showing how the terms of the contract are being met and what percent of staff time is devoted to the particular contract requirements. The workplan must relate to the County’s stated outcomes and must be approved by [ . . . . . ] as contract monitor, by October 15.

Reflecting . . . . . concerns, your letter to this Commission states that the . . . . . "confine[s its] activity to the work as described in the Scope of Service and [its] current workplan," both of which you enclosed for review by the Ethics Commission.

Treating your letter, as we must, as a request for an advisory opinion, the Commission advises that, for the purposes of the Montgomery County Public Ethics Law, lobbying is "any attempt to influence any legislative, executive, or administrative action by a County agency." Whether an activity described in the scope of service and work plan you have submitted would constitute lobbying, however, is not readily apparent given the generality of those provisions. Such a determination requires more specifics than these documents contain. The Commission, therefore, is unable to advise whether any of these general activities would constitute lobbying.

In any event, lobbying under that contract or in the performance of any other activity for which the . . . . . is funded by the County would not be prohibited by the Ethics Law, although it would be subject to that law, unless excepted or exempted. The lobbying provisions of the Ethics Law are merely disclosure provisions that apply, with certain exceptions and exemptions, to all persons, whether or not they are funded by or acting under a contract with the County. Those provisions require an individual or organization to register as a lobbyist and to file certain reports if, during a year, the individual or organization:

(1) communicates with a public employee to influence legislative action by a County agency, and for that purpose either.

(A) spends more than $500, or

(B) receives compensation, including a pro-rated part of a salary or fee for services, totaling more than $500; or

(2) communicates with a public employee to influence executive or administrative action by a County agency, and for that purpose spends a total of more than $500 for;

(A) meals and beverage

(B) transportation;

(C) lodging;

(D) provision of any service;

(E) one or more special events; and

(F) one or more gifts.

These Ethics Law lobbying registration provisions, however, do not apply to:

(1) drafting bills or advising clients about proposed or pending legislation without any other attempt to influence the legislative process;

(2) communicate with a County agency when requested by the agency, without engaging in any other activity to influence legislative, administrative, or executive action on the subject of the communication;

(3) communicating with a County agency as an official act of an official or employee of the state, a political subdivision of the state, or the United States, and not on behalf of any other person or business;

(4) actions of a publisher or working journalist in the ordinary course of disseminating news or making editorial comment to the general public, without engaging in other lobbying that would directly and specifically benefit the economic interests of a specific person or business;

(5) appearing before a County agency at the request of a lobbyist if the witness:

(A) takes no other action to influence legislative, administrative, or executive action; and

(B) identifies himself or herself as testifying at the request of the lobbyist;

(6) communicating on behalf of a religious organization for the sole purpose of protecting the right of its members to practice the doctrine of the organization;

(7) communicating as an official duty of an officer, director, member, or employee of an organization engaged exclusively in lobbying for counties or municipalities, and not on behalf of any other person or business;

(8) acts regulated under Chapter 8 [of the County Code], Cable Communications; and

(9) an action of any person representing an organization that is exempt from taxation under Section 501(c)(3) of the Internal Revenue Code if:

(A) the action promotes the exempt purposes of the organization; and

(B) the organization gave gifts totaling less than $500 to public employees in a year ; and

(C) the representative is paid or spends less than $1,000 in a year to influence executive, administrative, and legislative action.

Furthermore, except for the filing of an authorization to lobby, an individual or organization is exempt from the reporting requirements of the Ethics Law if the individual or organization:

(1) compensates one or more lobbyists;

(2) reasonably believes that each lobbyist will timely register and report all expenditures required to be reported; and

(3) engages in no other lobbying.

In summary, whether an activity described in the scope of service and work plan you have submitted would constitute lobbying is not readily apparent given the generality of those provisions. Such a determination requires more specifics than these documents contain. The Commission, therefore, is unable to advise whether any of these general activities would constitute lobbying. In any event, however, lobbying under the contract or in the performance of any other activity funded by the County would not be prohibited by the Ethics Law, although it would be subject to that law and would require that the or any person lobbying on behalf of the register as a lobbyist and file the requisite reports, unless excepted or exempted from those requirements by the Ethics Law. Other laws or policies, however, or the contract itself may prohibit the from lobbying under the contract or in the performance of any other activity funded by the County.

If you have any question about whether specific conduct would constitute lobbying for the purposes of the Ethics Law, the Commission will be happy to address it.

Very truly yours

[signed]

Kenneth C. Jackson, Sr., Chair

 

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