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Montgomery County Ethics Commission
Text of Waivers - 1991

[Waiver 1991-1]
W-91-18

January 28, 1991


TO: Neal Potter, County Executive
FROM: Jay L. Cohen, Chairman
Montgomery County Ethics Commission
SUBJECT: Request for Waiver re Fundraiser for St. Luke's

This memo will serve as official confirmation of the verbal advice transmitted to you by Barbara McNally, Administrator of the Ethics Commission, regarding your request for a waiver of the Ethics Law permitting you to serve as co-chairman of a testimonial and fundraising dinner for the benefit of St. Luke's Mental Health Center. St. Luke's currently "does business" with the county government in that it receives county contract and/or grant funding.

In an effort to raise additional funds for this center, past and present County Executives have been asked to co-sponsor this event with their names appearing on the invitations and the evening's program. Aside from the use of your name and title, you expressed a concern in co-sponsoring a gathering of invited persons who are, have done or will be doing business with the county.

 
You have further represented to the Commission that you will not be selecting the invitees and that you will not be personally soliciting funds for St. Luke's Mental Health Center.

Your request raises issues under Section 19A-14 and 19A-16 with the use of the prestige of your office and the solicitation of gifts. Any waiver of these provisions must satisfy the three conditions of Section 19A-8(a):

"After receiving a written request, the Commission may grant to a public employee or a class of public employees a waiver of the prohibitions of this Chapter, Section 411 of the Charter, and Sections 11B-51 and 11B-52 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 potential harm of any conflict of interests; and
3) granting the waiver will not give a public employee an unfair advantage over other members of the public."

After considering both the legal requirements and the self-imposed restrictions noted above, the Commission decided;

1) there is a need for mental health services in the county and therefore, the best interest of the county would be served by granting the waiver;
2) the importance of your co-sponsorship outweighs the actual or potential harm of any conflict of interest; and
3) you will not gain an unfair advantage over the general public by co-sponsoring the event.

If you have any questions regarding this decision, please contact our office.


[Waiver 1991-2]
W-91-26

August 13, 1991

Robert M. Slesser

Re: Request for Waiver


Dear Mr. Slesser:

By letter dated May 18, 1991, you requested the Ethics Commission to grant you a waiver to allow you to receive compensation for consulting services you have provided IBM.

You have provided the Commission with the following background: In December 1990, you left County employment as the Director of Department of Information Systems and Telecommunications (DIST). During your tenure as Director you had oversight responsibility for all contracts administered by DIST. These contracts included contracts with IBM. The value of these contracts is "in the millions." The County has had a contract with IBM for at least 20 years. After you left County employment, you provided consulting services to IBM by reviewing a "broad finance and administration industry plan." These consulting services did not involve an employee of the County, a County contract, nor even the local branch of IBM that markets to the County. Finally, you indicated that the compensation for your consulting services will not exceed $1000.

Section 19A-13(b) of the Montgomery County Public Ethics Law prohibits a County employee, for one year after the effective date of termination from County employment, from entering into any employment understanding with a business that contracts with the County if the employee had official responsibility concerning a contract with that business. Accordingly, it would be necessary for you to receive a waiver from the Ethics Commission in order for you to accept compensation for the services you provided IBM.

The Ethics Commission under Section 19A-8(b) may grant a waiver from the prohibitions of Section 19A-13 if the Commission finds:

"(1) the waiver is needed to ensure that competent services to the County are timely and available;
(2) failing to grant the waiver may reduce the ability of the County to hire or retain highly qualified public employees; or
(3) the proposed employment is not likely to create an actual conflict of interest."

Based on the facts as reflected above, the Commission concludes that your acceptance of compensation from IBM in an amount not to exceed $1,000 for the services you described is not likely to create an actual conflict of interest. Accordingly, the Commission grants you a waiver to accept compensation from IBM for the consulting services you have provided in an amount not to exceed $1,000.

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


[Waiver 1991-3]
W-91-27

MEMORANDUM


September 25, 1991

TO: Neal Potter
County Executive
FROM: Jay L. Cohen, Chair
Montgomery County Ethics Commission
RE: Waiver to Participate in Fund Raising Campaign for Regional Institute for Children and Adolescents Association

By memorandum dated July 23, 1991, you requested the Ethics Commission to advise you if your participation as County Executive in a fund-raising campaign for the Regional Institute for Children and Adolescents Association (RICA Association) would violate the County ethics law. If necessary, you have requested a waiver to participate in the RICA Association fund-raising campaign.

The following background has been provided by you: The RICA Association, a non-profit 501(c)(3) entity, has asked you to participate in their fund-raising campaign, "Funds for the Future." The RICA Association is raising funds to supplement government support for the Regional Institute for Children and Adolescents (RICA), an institution of the State of Maryland.

The RICA Association wishes you to serve as Chair of the "Funds for the Future" campaign. This would involve your signing a letter on RICA Association letterhead asking for contributions from Montgomery County businesses. The mailing list will be created by the RICA Association. In addition, you would appear and speak at two meetings arranged by the RICA Association.

Section 19A-14 of the Montgomery County Public Ethics Law provides:
"(a) A public employee must not intentionally use the prestige of office for private gain or the gain of another. Performing usual and customer constituent services, without additional compensation, is not the use of prestige prohibited by this subsection."

The Ethics Commission believes that your participation in the "Funds for the Future" campaign in your capacity as County Executive constitutes the use of prestige of office for the gain of another that is prohibited by Section 19A-14. Accordingly, a waiver is required in order for you to participate as County Executive in the RICA Association fund-raising campaign.

Section 19A-18(a) authorizes the Ethics Commission to grant a waiver from the prohibition of Section 19A-14 if the Commission finds:

"(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 and unfair advantage over other members of the public."

Since the RICA Association campaign is to benefit an institution supported by the State and the County, the Commission finds that your participation in the fund-raising campaign as County Executive is in the best interests of the County.

In addressing the second criterion for granting a waiver, the Commission was concerned about the potential for "arm twisting" that might occur if the RICA Association were to try to use your position as County Executive as a means of putting pressure on County businesses to contribute. The Commission concluded, however, that there was no evidence that the RICA Association would be likely to engage in this type of inappropriate pressure; accordingly, the Commission concluded that there would be no conflict of interest or potential harm of a conflict of interest by your participation in the RICA Association fund-raising campaign.

Finally, the Commission concluded that granting you a waiver in the matter would not give you an unfair advantage over other members of the public. Accordingly, the Commission grants you a waiver to participate in the RICA Association fund-raising campaign in the manner you have outlined.

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


[Waiver 1991-4]
W-91-28

MEMORANDUM

October 21, 1991

TO: Herbert W. Winstead, Chief
Adult Addiction Programs
Department of Addiction, Victim, and Mental Health Services
FROM: Jay L. Cohen, Chair
Montgomery County Ethics Commission
RE: Request for Advisory Opinion and Waiver

The Ethics Commission has received a memorandum from Herbert W. Winstead dated September 17, 1991, requesting an advisory opinion and waiver. The Commission has also received a supplemental memorandum from Pete Holt, Director, Department of Addiction, Victim, and Mental Health Services (DAVMHS) dated October 3, 1991. Finally, the Commission has interviewed both Winstead and Holt. Based on these sources of information, the Ethics Commission understands the facts surrounding this request as follows:

The Maryland Treatment Center (MTC) has a contract with the County to provide non-hospital detoxification and intermediate care services. This contract is administered by DAVMHS. Contract performance is monitored by Hardy Bennett, a Program Manager, who is employed in the Adult Addiction Programs Section of DAVMHS. Winstead, who is Chief of the Adult Addiction Programs Section, supervises Bennett.

Winstead meets with Bennett at least weekly to discuss MTC contract performance. Though MTC invoices are checked by employees who are not subject to Winstead's supervision, Winstead's section is responsible for notifying the Division Chief if MTC has not delivered services as required under its contract with the County.

Winstead's wife is employed by MTC as a "Marketeer." She works in the Baltimore area and has no contact with clients located in Montgomery County. Winstead informed Holt of his wife's employment relationship with MTC prior to MTC entering into a contract with the County.

MTC was awarded the contract in question under a competitive solicitation (RFP #95482). The Commission understands that MTC is proposed to receive a new award to perform the same services under a recently issued solicitation (RFP #20095). Winstead has not participated in the preparation of either RFP, the evaluation of proposals, or recommendation of contract award.

Holt has indicated that he has no supervisor other than Winstead who has both the qualifications and the available time to supervise Bennett's contract monitoring of the MTC contract.

Section 19A-11 of the Montgomery County Public Ethics law provides that, unless permitted by a waiver, a public employee must not participate in any matter if the matter involves as a party any business in which a relative has an economic interest. Clearly, Section 19A-11 does not permit Winstead to supervise Bennett in relation to matters involving the MTC contract.

Section 19A-8 authorizes the Ethics Commission to waive the provisions of Section 19A-11 if the Commission finds:

"(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."

In considering these criteria, the Commission finds the following factors persuasive:

1. The Director of DAVMHS has advised the Commission that besides himself Winstead is one of only two employees with the specialized knowledge to supervise the MTC contract monitor.
2. The Director of DAVMHS has further advised the Commission that Winstead is the only qualified employee with the time to supervise properly the MTC contract monitor and that any reassignment of that function would put an "unacceptable strain" on the management of DAVMHS.
3. The MTC contract was awarded through a competitive process in which Winstead did not participate.
4. Winstead's wife does not contact MTC clients that are located in Montgomery County.

In light of these factors, the Commission concludes that the criteria for granting a waiver have been met.

Accordingly, the Ethics Commission grants a waiver to allow Winstead to supervise the contract monitor of the contract with MTC subject to the following condition: The Director of DAVMHS must, in writing, instruct the MTC contract monitor to report, in writing, any contract problems concerning MTC directly either to the Director of DAVMHS or the Addiction and Youth Treatment Services Division Chief.

The Commission trusts that the advisory opinion and waiver has been responsive to your inquiry. If you have any questions regarding this matter, please contact the Commission.

 

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