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Montgomery County Ethics Commission
Text of Waivers - 1992

[Waiver 1992-1]
W-92-29

MEMORANDUM

March 18, 1992

TO: Margaret Knill
Council Legislative Analyst
FROM: Jay L. Cohen, Chair
Montgomery County Ethics Commission
RE: Request for Advisory Opinion and Waiver

The Ethics Commission has received a memorandum from Margaret J. Knill, a Legislative Analyst for the County Council, dated January 27, 1992, requesting an advisory opinion and waiver. Based on the January 27th memorandum and information supplied orally by Knill to the Ethics Commission's general counsel, the Ethics Commission understands the facts surrounding this request as follows:

Knill was recently elected the President of Manor Village Homes Association, a common ownership community. Knill is also an ex-officio, non-voting member of the Commission on Common Ownership Communities (CCOC).

 

CCOC was established by Bill 44-89. CCOC has 15 voting members; according to Bill 44-89, six of these voting members should be selected from residents of common ownership communities. Bill 44-89 specifically provides that the voting members may include members of the governing boards of common ownership communities. Bill 44-89 also provides that the membership of CCOC includes six ex-officio, non-voting members. Among those six, one must be a designee of the County Council. Knill was appointed by the Council to be its designee on CCOC.

Knill was selected by the Council because of her expertise in issues regarding common ownership communities. Knill acquired this expertise by serving as the staff support person on a task force which recommended adoption of Bill 44-89.

At the time of her appointment as an ex-officio member of CCOC, Knill informed the Council that she was a member of the governing board of Manor Village Homes Association. Subsequent to her appointment by the Council, she was elected President of Manor Village Homes Association. As President, Knill remains a member of the governing board but also exercises certain additional administrative powers.

Bill 44-89 provides that the duties of CCOC include advising the County Council and County Executive on matters involving common ownership communities and recommending programs, procedures or legislation as may be necessary. The Commission, through panels, also is authorized to hear disputes between members of common ownership communities and the governing body of the common ownership community. Ex-officio members, however, are not eligible to be a member of a hearing panel.

Bill 44-89 authorizes the County Executive, after receiving advice from CCOC, to promulgate a regulation imposing a fee on common ownership communities to fund the operations of CCOC and the Office on Common Ownership Communities. Under Bill 44-89, fees may only be imposed on a per unit basis or on the basis of services actually used.

Knill has asked if her participation as an ex-officio member of CCOC constitutes a conflict of interest and, if so, she has asked for a waiver.

Section 19A-11 of the Montgomery County Public Ethics Law prohibits a public employee from participating in any matter if the public employee knows that the matter may involve an entity of which the public employee is an officer or director. The Ethics Commission concludes that Knill's participation as member of CCOC at the same time that she is the President of an entity that may be directly impacted by the recommendations made by CCOC constitutes a conflict of interest under Section 19A-11.

Section 19A-8 authorizes the Ethics Commission to grant a waiver from the prohibitions of Section 19A-11 if the Commission finds that:

"(1) The best interest 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 Ethics Commission finds the following factors persuasive:

1. The County Council appointed Knill as its designee to serve as an ex-officio, non-voting member on CCOC. The Council knew at the time of Knill's appointment that she was a member of the governing body of Manor Village Homes Association. Knill's appointment was based on her expertise with common ownership community issues.
2. Bill 44-89 clearly contemplates that members of governing boards may serve as a voting member on CCOC. As an ex-officio, non-voting member of CCOC, Knill's role is limited to participating in discussions.
3. The Ethics Commission was concerned that Knill's participation on CCOC could potentially result in an unfair advantage being given to Manor Village Homes. However, considering both the size and diversity of the CCOC's voting membership, the Commission believes that this problem may be overcome by requiring Knill to disclose to the members of CCOC that she holds an office on the governing board of Manor Village Homes Association.

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

Accordingly, the Ethics Commission grants a waiver to allow Margaret J. Knill to participate as an ex-officio, non-voting member on CCOC subject to the following condition: Knill must inform, in writing, the members of CCOC of her office on the governing board of Manor Village Homes Association. A copy of this notification must be sent to the Ethics Commission.

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


[Waiver 1992-2]
W-92-30

MEMORANDUM

March 18, 1992

TO: Barbara Carrington, R.N.
Case Manager, Addiction, Victim and Mental Health Services
FROM: Jay L. Cohen, Chair
Montgomery County Ethics Commission
RE: Request for a Waiver

The Ethics Commission has reviewed your request for a waiver dated February 3, 1992. You have provided the Commission with the following facts:

You work part time for the County in the Department of Addiction, Victim, and Mental Health Services (DAVMHS). Specifically, you provide health care services in the County's Methadone to Abstinence Project. At the time you became a County employee, you continued employment as a nurse for Montgomery General Hospital in its detoxification unit.

After your employment with the County, the County entered into a contract with Montgomery General Hospital to provide services in connection with the County's Methadone to Abstinence Project. As a result, you perform essentially the same duties as a County employee and, though not simultaneously, as an employee of Montgomery General Hospital.

You do not serve in an administrative, supervisory, or management position with either the County or Montgomery General Hospital. Accordingly, you have no involvement in the award or administration of the contract between the County and Montgomery General Hospital.

You have indicated that your work at Montgomery General Hospital allows you to practice and implement skills and procedures that are necessary to rendering treatment to chemically addicted patients and that this makes you a more effective employee for the County. Dr. Frank Jones, Medical Director of the County's Methadone to Abstinence Project, agrees that your work at Montgomery General Hospital is beneficial to the performance of your duties for the County.

Finally, Herbert A. Holt, Director of DAVMHS, supports your request for a waiver to continue employment at Montgomery General Hospital. Holt's support, however, was predicated upon your agreement that while acting as a County employee you will not refer a client to the Montgomery General Hospital detoxification unit and when you are acting as a Montgomery General Hospital employee, you will not refer patients to the County's Methadone to Abstinence Project. Referral of patients to whom you provide health care services at the County and Montgomery General Hospital must be handled by other employees.

Section 19A-12(a) of the Montgomery County Public Ethics Law provides that a public employee "must not engage in any other employment unless the employment is approved by the Commission." Section 19A-12(b) provides that a public employee must not be employed by an entity that contracts with the County agency with which the employee is affiliated unless the Ethics Commission grants a waiver. Finally, Section 11B-52 provides that an entity must not simultaneously employ a County employee and contract with the County.

Section 19A-8(a) authorizes the Ethics Commission to grant a waiver from the provisions of Section 11B-52 if the Commission determines:

"(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 supports your request to continue employment at Montgomery General Hospital.
2. You have agreed that you will not refer County clients to Montgomery General Hospital for detoxification or to the Methadone to Abstinence Project. Referral of your patients will be handled by other employees.
3. You do not serve in any supervisory or management position for either the County or Montgomery General Hospital. Accordingly, you have no responsibility with regard to the award or administration of the contract between the County and Montgomery General Hospital.
4. The Director of the Methadone to Abstinence Clinic for Montgomery County believes that your continued work experience at Montgomery General Hospital will be beneficial to the performance of your duties for the County.

In light of these factors, the Commission concludes that the criteria for granting a waiver of Section 11B-52 have been met.

Section 19A-8(b) authorizes the Commission to grant a waiver from the provisions of Section 19A-12(b) 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."

In considering these criteria, the Commission finds that your employment with Montgomery General Hospital is not likely to create an actual conflict of interest because:

1. You do not serve in a management position for either Montgomery General Hospital or the County so that you have no involvement with the award or administration of the contract between Montgomery County and Montgomery General Hospital;
2. You have agreed, as a County employee, not to refer your patients to Montgomery General Hospital's detoxification unit or, as a Montgomery General Hospital employee, to refer clients to the County's Methadone to Abstinence Clinic; instead other employees will make referrals of your patients.

Accordingly, the Ethics Commission grants a waiver to allow you to be employed by Montgomery General Hospital in its detoxification unit subject to the following condition: As a Montgomery County employee, you must not refer County clients to the Montgomery General Hospital detoxification unit; as a Montgomery General Hospital employee, you must not refer hospital patients to the County's Methadone to Abstinence Project. Instead, other employees must make referrals as appropriate.

The Commission trusts this memorandum has been responsive to your request for a waiver. If you have any questions regarding this matter, please contact the Commission.

[Waiver 1992-3]
W-92-31

MEMORANDUM

March 18, 1992

TO: Pete Holt, Director
Department of Addiction, Victim, and Mental Health Services
FROM: Jay L. Cohen, Chair
Montgomery County Ethics Commission
RE: Waiver Request for Chandler Scott McMillen


Pete Holt, Director, Department of Addiction, Victim, and Mental Health Services, has written to the Ethics Commission requesting a waiver to allow Chandler Scott McMillin to serve as a voting member on the Alcohol and Other Drug Abuse Advisory Council (AODAAC). Based on Holt's memorandum dated February 14, 1992, the Ethics Commission understands the factual background of Holt's request for a waiver is as follows:

The AODAAC was established by Emergency Bill 40-91 which became law on October 10, 1991. Bill 40-91 provides for 16 voting members and 12 non-voting members who are appointed by the County Executive and confirmed by the County Council. The AODAAC is charged, among others, with the following responsibilities:

1. Identifying local alcohol and other drug abuse program needs;
2. Assisting in the development of an annual County alcohol and other drug abuse plan;
3. Recommending appropriate allocation of funds to support alcohol and other drug abuse programs; and
4. Issuing an annual report that includes an identification of actions needed to improve local alcohol and other drug abuse programs.

On behalf of the County Executive, a selection committee has interviewed candidates for appointment to AODAAC. The selection committee would like to recommend the appointment of Chandler Scott McMillin to AODAAC. Mr. McMillin has a national reputation as an expert in the field of addiction treatment and is the author of several books on the subject.

The reason you have requested a waiver from the Commission is that Mr. McMillin is the Director of the Addiction Treatment Center of Suburban Hospital. The County currently has a contract with Suburban Hospital (Contract No. 15548BD) which is administered through the Department of Addiction, Victim, and Mental Health Services. Under the contract, Suburban Hospital provides out-patient addiction treatment services to clients referred by the County. Suburban is one of four contractors providing this service. Suburban Hospital receives compensation under the contract by collecting from each referral a fee. County funds are not paid to the contractor. Suburban Hospital may receive up to 600 referrals per year. The top fee that a client pays under the contract is $572. Approximately 10% of the clients are indigent and thus do not pay a fee.

Section 19A-11(a) provides that, unless permitted by a waiver, a public employee must not participate in any matter that affects the property or a business in which the public employee has an economic interest. Section 19A-11(b) specifically prohibits a public employee from participating in a matter that involves a business which employs the public employee. Section 19A-4 defines a public employee as any person appointed to a County committee whether or not the person is compensated. Section 11B-52 prohibits any entity from employing a public employee at the same time that the entity has a contract with the County.

The Ethics Commission believes that Mr. McMillin's participation on AODAAC would violate Section 11B-52, and, to the extent Mr. McMillin participated in formulating AODAAC recommendations concerning addiction treatment programs, his participation would violate Section 19A-11.

Section 19A-8 authorizes the Ethics Commission to waive the provisions of Section 19A-11 and 11B-52 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. Bill 40-91 expressly encourages the appointment of a professional who treats alcoholism or other drug abuse to AODAAC. This legislation clearly indicates that it is in the County's best interests to have as a member of AODAAC an individual with demonstrated expertise in the field of addiction treatment, even though that individual may benefit from County programs which are evaluated by AODAAC.
2. The Director of Addiction, Victim, and Mental Health Services believes that Mr. McMillin's expertise would greatly benefit AODAAC.
3. The contract the County has with Mr. McMillin's employer does not involve the expenditure of public funds.
4. The Commission believes that if Mr. McMillin discloses his employment relationship with Suburban Hospital and the nature of the contract between Suburban Hospital and the County to the County Executive, the County Council and, if appointed, AODAAC, the potential for a conflict of interest or unfair advantage to Mr. McMillin will be minimal.

Under these circumstances, the Ethics Commission believes that the importance to the County of Mr. McMillin sharing his expertise with AODAAC outweighs any potential conflict of interest and that there will be no unfair advantage given to Mr. McMillin over other members of the public. Accordingly, the Commission concludes that the criteria for granting a waiver have been met.

The Ethics Commission grants a waiver to allow Mr. McMillin to serve as a member of AODAAC subject to the following condition: Mr. McMillin must disclose, in writing, to the County Executive and the County Council his employment relationship with Suburban Hospital and the nature of the contract between the County and his employer. If appointed, Mr. McMillin must also inform, in writing, the members of AODAAC of his employment relationship with Suburban Hospital and the nature of the contract between the County and Suburban Hospital. A copy of this notification must be forwarded to the Ethics Commission.

If you have any questions regarding this matter, please contact the Commission.


[Waiver 1992-4]
W-92-32

MEMORANDUM

April 2, 1992

TO: David G. Sobers, Chief
Division of Environmental Policy and Compliance
FROM: Jay L. Cohen, Chair
Montgomery County Ethics Commission
RE: Request for Advisory Opinion and Waiver


The Ethics Commission has received a memorandum from David G. Sobers dated March 11, 1992, requesting an advisory opinion and waiver. The Commission also interviewed Sobers at its meeting on March 18, 1992. Based on these sources of information, the Commission understands the facts surrounding this request as follows:

Sobers is currently the Chief of the Division of Environmental Policy and Compliance in the Department of Environmental Protection (DEP). As of July 1, 1992, Sobers' position with Montgomery County will be abolished. Sobers plans to seek other employment after he leaves County service.

Sobers has been a County employee for 23 years, working exclusively in the environmental field. Prior to November 1990, Sobers was the Chief of the Division of Environmental Planning and Monitoring (DEPM) and from November 1989 to March 1990 was the acting Director of DEP. As the Chief of DEP, Sobers had significant responsibility for administering County contracts with environmental firms. Sobers also had supervisory responsibility for administering and enforcing the County laws concerning noise, air quality, water quality, and solid waste. In his present position, Sobers is also responsible for enforcing the Zoning Ordinance and the Building Code.

Sobers has submitted to the Ethics Commission a list of environmental firms which he proposes to contact regarding prospective employment; he indicates that these firms constitute perhaps up to 75% of the better and most relevant employment prospects. A list of these firms is attached. Prior to November 1990, Sobers assisted with the negotiation of or held administrative responsibility over a contract with each firm on the list. Sobers has indicated that he does not believe that he has been involved in any regulatory actions taken against a firm on the list, though he concedes that as a Division Chief or as the acting Director, enforcement action may have been taken by DEP against a firm on the list such as Waste Management, Laidlaw, and Browning Ferris.

Finally, Sobers has indicated that, if hired by a firm on the attached list, he would not accept an assignment working on a contract with Montgomery County without first obtaining the consent of the Ethics Commission.

Section 19A-13 provides that:

"For one year after the effective date of termination from County employment, a former public employee must not enter into any employment understanding or arrangements (express, implied, or tacit) with any person or business that contracts with a County agency if the public employee:
(1) Significantly participated in regulating the person or business; or
(2) Had official responsibility concerning a contract with the person or business (except a non-discretionary contract with a regulated public utility)."

Many of the firms on the list do not presently have a current contract with the County. Under Section 19A-13, Sobers is free to contact and accept employment with those firms which do not presently have a contract with the County. However, Sobers may not, under Section 19A-13, seek employment with those firms on the list which are currently contracting with Montgomery County without first obtaining a waiver from the Ethics Commission.

Section 19A-8(b) authorizes the Ethics Commission to waive the provisions 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."

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

1. Sobers' position with the County is being abolished.
2. Sobers' involvement with contract administration with the firms on the list occurred at least 16 months ago.
3. Sobers has not been personally involved in any regulatory transaction with these firms.
4. Sobers has agreed that if he is employed by any of the firms on the list, he will not accept an assignment involving a contract with the County without first obtaining the consent of the Ethics Commission.

In light of these factors, the Commission concludes that Sobers' proposed employment with firms on the list is not likely to create an actual conflict of interest.

Accordingly, the Ethics Commission grants a waiver to allow Sobers to seek and accept employment with the firms on the list subject to the following condition: If Sobers accepts employment with one of the firms on the attached list, he must not accept, for a period of 12 months, any assignment involving a contract with the Montgomery County Government with first obtaining the consent of the Ethics Commission.

If you have any questions regarding this matter, please contact the Commission.


[Waiver 1992-5]
W-92-34

MEMORANDUM

June 3, 1992

TO: Mike M. Burdette, Administrative Services Coordinator
Department of Liquor Control
FROM: Jay L. Cohen, Chair
Montgomery County Ethics Commission
RE: Request for Waiver

The Ethics Commission has reviewed your request dated April 20, 1992, for a waiver under the Montgomery County Public Ethics Law.

Based on your written request, an interview with the Ethics Commission on April 29, 1992, and the "Report of the Montgomery County Liquor Control Policy Committee on a Proposed Test of Contracting Operations of Selected Department of Liquor Control Retail Stores" (Report) reviewed by Ethics Commission staff, the Ethics Commission understands the facts as follows:

You have asked the Commission to allow you to submit in conjunction with others a proposal in response to a Request For Proposals (RFP). The County intends to issue the RFP to procure the services of a qualified agent to operate one of three existing Department of Liquor Control (DLC) retail liquor stores. If successful, you ask permission to enter into a contract to operate one of these liquor stores.

You are the Administrative Services Coordinator for DLC. Your position will be eliminated effective July 1, 1992; you have requested, however, that you be allowed to remain in County employment until August 1, 1992.

As the Administrative Services Coordinator for DLC, your major responsibilities are: (1) provide administrative support to the Director of DLC; (2) review and sign off on various personnel actions; (3) coordinate meetings of the Liquor Control Policy Committee and the Alcoholic Beverages Advisory Board; (4) serve as a contract administrator for contracts administered by DLC; (5) coordinate DLC retail store leases; (6) prepare administrative reports; and (7) serve as coordinator of various administrative responsibilities, including training, program evaluation, and employee safety programs.

On November 12, 1991, the County Council adopted Resolution 12-452 which requested the County Executive, through the Liquor Control Policy Committee, to propose a pilot test to assist the County government in evaluating the advantages of contracting out the management of all 22 retail liquor stores operated by DLC.

The Liquor Control Policy Committee has released its Report which was publicly reviewed by the Council on April 28, 1992. According to the draft RFP in the Report, the method of contract award will be as follows: Written proposals will be evaluated utilizing criteria that include the proposer's merchandising qualifications, cash handling qualifications, inventory control qualifications, a start-up work plan, and a cash flow forecast. Interviews will be conducted for those proposers who are ranked in the top 25% of written proposals; interviews will be evaluated using the same criteria for evaluating written proposals. All proposers who score between 85% and 100% of the total available points will be put into Group 1. Proposers who score between 75% and 84% of the total available points will be put into Group 2. The bid of each proposer in Group 1 will then be opened and reviewed. The County will enter into contract negotiations with the proposer who had bid the lowest commission rate within Group 1. If a contract is not executed with the offeror with the lowest commission rate, the County will enter into negotiations with the proposer with the next lowest commission rate in Group 1. If a contract is not issued to a proposer in Group 1, the County will begin negotiations with the proposers in Group 2 in the order of the lowest bid commission rate.

The Ethics Commission understands that the County anticipates issuing the RFP before you leave County employment; in fact, proposals may be due under the RFP before you leave County employment. However, it is expected that contract awards will be posted and contract negotiations commenced after you leave County employment.

You have indicated that you wish to submit a proposal in conjunction with John McGraw and his spouse. McGraw was employed in DLC about 8 years ago. Before his employment with the County, McGraw operated a liquor store in Prince George's County. The McGraws have not had any involvement with the liquor business since McGraw's employment with the County.

Finally, you have indicated that you have not been involved in the development of the Report or any phase of the draft RFP, including selection criteria.

Section 19A-13(a) prohibits a former public employee from assisting any party, other than the County, in a case, contract or other specific matter for ten years after the last date the employee significantly participated in the matter. Since you did not participate in drafting the RFP, Section 19A-13(a) would not prohibit you as a former employee from responding to the RFP or entering into a contract to operate a DLC retail liquor store.

Section 19A-13(b) prohibits a former public employee from entering into an employment arrangement, for a period of one year after leaving County employment, with any person or business that contracts with a County agency if the employee: (1) significantly participated in regulating the person; or (2) had official responsibility concerning a contract with the person. Since you had no official responsibility concerning a contract with the McGraws nor did you regulate the McGraws, Section 19A-13(b) would not prohibit you as a former public employee from competing for and entering into a contract to operate a DLC retail liquor store in association with the McGraws.

Section 19A-12(e) prohibits a current public employee from assisting any party for contingent compensation in a matter involving a County agency except in a judicial or quasi judicial proceeding. The Ethics Commission believes that working with the McGraws to prepare a response to the RFP involves assisting another party for contingent compensation in a matter involving a County agency. Accordingly, so long as you remain a public employee, Section 19A-12(e) prohibits you from working with another to prepare or submit a response to the RFP.

Section 19A-8 authorizes the Commission to waive Section 19a-12(e) if the Commission finds that:

"(1) The best interest 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 applying these criteria to the circumstances of this case, the Ethics Commission finds the following factors persuasive:

1. Providing a public employee whose job will be involuntarily terminated through a Reduction in Force with an opportunity to engage in gainful work, including contracting with the County, is in the best interest of the County.
2. The Director of DLC has approved this request for a waiver.
3. You have not been involved in drafting the RFP or in establishing the evaluation criteria for awarding a contract under the RFP.
4. A critical step in selecting a contractor under the RFP uses the lowest commission rate bid by an offeror. This criterion, unlike the other criteria, is objective and non-judgmental.

Accordingly, the Commission finds that the criteria under Section 19A-8 have been met.

The Commission grants you a waiver to work with the McGraws to prepare and submit a proposal under the RFP. This waiver is subject to the following conditions:

1. You may not as a public employee participate in the finalization of the RFP, the issuance of the RFP, the selection of the members of the Qualifications and Selection Committee, or the evaluation of proposals submitted under the RFP.
2. While a public employee, you may not enter into any negotiations or contract with Montgomery County.

If you have any questions regarding this waiver, please contact the Ethics Commission.


[Waiver 1992-6]
W-92-35

September 9, 1992

Myron Preactor


Re: Request for Waiver

Dear Mr. Preactor:

The Ethics Commission has reviewed your request dated June 24, 1992, for a waiver under the Montgomery County Public Ethics Law.

Based on your written request, an interview with you and Jerome I. Baylin, Director, Department of Liquor Control on July 1, 1992, and the Request for Proposals No. 27734 reviewed by Ethics Commission staff, the Ethics Commission understands your request and the facts as follows:

The County issued RFP No. 27734, Retail Alcoholic Beverage Store Operation and Management (RFP) on June 2, 1992, to procure the services of a qualified agent to operate one of three existing Department of Liquor Control (DLC) retail liquor stores. The stores are the Muddy Branch Liquor Store, the Kensington Liquor Store and the Pike Liquor Store. The corporation of which you are a stockholder and the President has filed a proposal in response to the RFP. You have indicated that the other stockholders in your corporations are not County employees and have not been involved in the liquor business.

You are a County employee and work for DLC as an assistant manager at the Quince Orchard Liquor Store. As an assistant manager, you are responsible for stocking the shelves, ordering inventory, receiving inventory, evaluating clerks, and handling cash receipts. You have had no connection with preparing the RFP, nor have you had access to any confidential information that has not otherwise been made available to vendors wishing to submit a proposal under the RFP. In this respect, Mr. Baylin has indicated that an income statement and demographic information for the three stores were made available to those interested in submitting a proposal as well as an opportunity to visit each of the three stores in question.

You have asked the Commission to allow you to keep the proposal submitted by your corporation in response to the RFP active. You have indicated that if you were awarded a contract under the RFP, you would retire from County employment.

The RFP provides for the following method of contract award: Written proposals will be evaluated utilizing criteria that include the proposer's merchandising qualifications, cash handling qualifications, inventory control qualifications, a start-up work plan, and a cash flow forecast. Interviews will be conducted for those proposers who are ranked in the top 25% of written proposals; interviews will be evaluated using the same criteria for evaluating written proposals. All proposers who score between 85% and 100% of the total available points will be put into Group 1. Proposers who score between 75% and 84% of the total available points will be put into Group 2. The bid of each proposer in Group 1 will then be opened and reviewed. The County will enter into contract negotiations with the proposer who had bid the lowest commission rate with Group 1. If a contract is not executed with the offeror with the lowest commission rate, the County will enter into negotiations with the proposer with the next lowest commission rate in Group 1. If a contract is not issued to a proposer in Group 1, the County will begin negotiations with the proposers in Group 2 in the order of the lowest bid commission rate.

Mr. Baylin has indicated that the RFP requires any contractor who manages one of the three stores to utilize many of the same operating procedures currently being used in other DLC retail liquor stores. Mr. Baylin indicated that DLC employees represent a significant pool of potentially qualified contractors and that allowing DLC employees to submit proposals will increase competition. Mr. Baylin noted that the RFP provides that no vendor may be awarded a contract to operate more than one store. Finally, Mr. Baylin indicated that only one other proposal, in addition to the one submitted by your corporation, was submitted in response to the RFP.

By waiver dated June 3, 1992, the Commission authorized Mike M. Burdette, Administrative Services Coordinator for DLC along with two others who were not County employees to submit a proposal to the RFP. The Commission noted that Section 19A-12(e) prohibits a public employee from assisting any party for contingent compensation in a matter involving a County agency except in a judicial or quasi judicial proceeding. The Commission concluded that preparing a proposal along with others is assisting another for contingent compensation involving a County agency. Likewise, the Ethics Commission believes that your participation in submitting a proposal to the RFP on behalf of a corporation with stockholders other than yourself constitutes assisting another party for contingent compensation in a matter involving a County agency. Accordingly, so long as you remain a public employee, Section 19A-12(e) prohibits you from submitting on behalf of your corporation a response to the RFP.

Section 19A-8 authorizes the Commission to waive Section 19A-12(e) if the Commission finds that:

"(1) The best interest 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 applying these criteria to the circumstances of this case, the Ethics Commission finds the following factors persuasive:

1. As indicated by the Director of DLC, the County's best interest would be served by increasing the pool of qualified competitors for the RFP.
2. You have not been involved in drafting the RFP or in establishing the evaluation criteria for awarding a contract under the RFP. Accordingly, the benefit to the County of allowing you to compete for the contract outweighs any potential conflict of interest.
3. The RFP provided potential competitors with relevant financial information concerning the three stores, and the County allowed each competitor to visit each store. Furthermore, a critical step in selecting a contractor under the RFP uses the lowest commission rate bid by an offeror. This criterion, unlike the other criteria, is objective and non-judgmental. Accordingly, the Commission finds that granting you a waiver to submit a proposal will not provide you with an unfair advantage over other members of the public.

Accordingly, the Commission grants you a waiver to keep the proposal you filed in response to the RFP active. This waiver is subject to the following conditions:

1. You may not, as a public employee, participate in the evaluation of any proposals submitted under the RFP.
2. While a public employee, you may not enter into any negotiations or contract with Montgomery County.
3. This waiver only applies to RFP No. 27734 issued on June 2, 1992.

If you have any questions regarding this waiver, please contact the Ethics Commission.


[Waiver 1992-7]
W-92-36

MEMORANDUM

September 9, 1992

TO: Derick Berlage, Councilmember
Montgomery County Council
FROM: Jay L. Cohen Chair
Montgomery County Ethics Commission
RE: Waiver

The Ethics Commission has reviewed your request for a waiver dated June 30, 1992. The Commission understands that the facts forming the background of your request are as follows:

The Montgomery County Board of Education has identified a 42 acre tract of land located at the intersection of Colesville Road and University Boulevard as a potential site for a new Blair High School. This tract of land is commonly referred to as the Kay Tract. The Kay Tract is currently zoned for residential use but the owner has applied for a zoning change to a mixed residential, commercial, and office use.

The new high school proposed for the Kay Tract would serve almost exclusively students residing within District 5 from which you were elected as a member of the County Council.

Your personal residence, which you own, is located two blocks from the Kay Tract and is separated by eight single-family homes and University Boulevard, which is a six-lane divided highway. You have indicated that you do not know if construction of a high school on the Kay Tract will affect the value of your property.

The Council has previously approved funding for a study on the feasibility of building a new high school on the Kay Tract. You indicate that the Council may be asked to vote in the near future on whether to acquire the Kay Tract and subsequently to approve the construction of a new high school on it.

The Ethics Commission had issued to you an advisory opinion dated June 3, 1992, indicating that you could participate in the Council decision on whether to fund a feasibility study without conflict of interest. The Ethics Commission found that an informational study would not affect, in a manner distinct from the public generally, your property. On the other hand, the Commission concluded that Section 19A-11(a) "prevents you from participating as a Councilmember in any matter that directly affects the . . . [Kay Tract], including a decision to appropriate funds to acquire the . . . [Kay Tract] or build a high school on it."

The Ethics Commission invited you to provide additional information that would indicate development of a high school on the Kay Tract would have no economic impact on your property or, in the alternative, apply for a waiver under Section 19A-8 if you wished to participate in the decision making process concerning this matter.

Section 19A-8 authorizes the Commission to grant a waiver from the prohibitions of Section 19A-11 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."

Your request for a waiver addresses each of these criteria.

In applying the waiver criteria to the facts in this case, the Ethics Commission finds the following facts, many of which you have identified in your request for a waiver, persuasive:

1. The students that would be served by a new high school on the Kay Tract would almost exclusively reside within District 5. Accordingly, the residents of District 5 have a strong and legitimate claim that the Councilmember elected from their District participate in this matter. Therefore, the Ethics Commission concludes that it would be in the best interest of the County for you to participate in this matter.
2. As already noted, there is a strong public policy reason for you to participate in this matter as the Council representative from District 5.
On the other hand, the acquisition of the Kay Tract and construction of a high school on it may affect the value of your property. However, the extent of the impact of these actions on the value of your property, if any, is uncertain. Since the acquisition of the Kay Tract would be for a public purpose, the Ethics Commission concludes that the importance of your participation as a Councilmember in this decision outweighs any actual or potential harm of a conflict of interest.
3. The Ethics Commission is aware of no facts which would support a conclusion that granting you a waiver to participate in this matter would give you an unfair advantage over other members of the public.

Accordingly, the Ethics Commission grants you a waiver to participate in Council discussions and decisions concerning the acquisition of the Kay Tract for a public purpose and construction of a high school on the tract. This waiver is subject to the following conditions:

1. This waiver does not extend to other Council decisions, such as an application for rezoning, which affect the Kay Tract.
2. You must publicly disclose to the Council your receipt of this waiver prior to your initial participation in the consideration of the acquisition of or construction of a high school on the Kay Tract.

If you have any questions regarding this waiver, please contact the Commission.


[Waiver 1992-8]
W-92-36A


MEMORANDUM

September 9, 1992

TO: Neal Potter
County Executive
FROM: Jay L. Cohen, Chair
Montgomery County Ethics Commission
RE Request for Waiver

By memorandum dated June 30, 1992, you requested the Ethics Commission to advise you if you may accept an invitation by the United Nations Association, National Capital Area (UN Association) to sign a letter inviting County organizations and individuals to become co-sponsors of a public celebration of United Nations Day in October. If necessary, you have requested a waiver allowing you to sign letters requesting various organizations and individuals to sponsor the UN Day celebration.

The following background has been provided by you: According to the draft letters soliciting sponsorship of the UN Day celebration, the observance will be held in Rockville on County property. The letter indicates that the UN Day celebration is jointly sponsored by the Montgomery County Government and the UN Association. Organizations are asked to contribute $15 or more to the UN Association to "help defray expenses." Individuals may become co-sponsors with a $5 minimum contribution. The solicitation letter appears to be targeted toward public interest groups and religious organizations. You have stated that "few of the organizations receiving the letter will be businesses with a financial interest in County procurement or other governmental decisions." Finally, you have indicated that co-sponsoring the UN Day celebration promotes the humanitarian and peacemaking activities of the United Nations which is "very much in the best interest of the County and all of its citizens."

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 customary constituent services, without additional compensation, is not the use of prestige prohibited by this subsection.
* * *
(c) A public employee must not use any County agency facility, property, or work time for personal use or for the use of another person, unless the use is:
(1) Generally available to the public; or
(2) Authorized by a County law, regulation, or administrative procedure.

The Ethics Commission believes that your participation as County Executive in seeking sponsors for the UN Day celebration constitutes the use of the prestige of your office for the gain of another that is prohibited by Section 19A-14. In addition, the use of a County facility for the benefit of the UN Association is prohibited by Section 19A-14(c). Accordingly, a waiver is required in order for you to participate as County Executive in the solicitation to obtain sponsors for the UN Day celebration and to use a County facility to benefit the UN Association.

Section 19A-8 authorizes the Ethics Commission to grant a waiver from the prohibitions of Section 19A-14 if the Commission finds:

(1) The best interest 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 applying these criteria, the Ethics Commission finds the following factors persuasive:

1. The Commission agrees that promoting the humanitarian and peacemaking activities of the United Nations is in the best interest of the County and its citizens.
2. The request for a contribution to the UN Association to defray the expenses of the UN Day celebration is for a relatively nominal amount. Furthermore, the solicitation is not targeted toward entities that do business with the County. Accordingly, the Commission believes that there is virtually no potential for a conflict of interest to arise if this waiver is granted.
3. There appears to be no basis for concluding that granting this waiver will provide you with an unfair advantage over other members of the public.

Accordingly, the Commission grants you a waiver to sign the draft solicitation letters to obtain sponsors for the UN Day celebration and to hold the celebration on a County facility.

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


[Waiver 1992-9]
W-92-37

October 15, 1992

David G. Sobers, Manager
Environmental Services
Woodward-Clyde Consultants


Re: Maryland-National Capital Park and Planning Commission RFP No. 9312A602

Dear Mr. Sobers:

Thank you for your letter of September 1, 1992, in which you seek clarification of the waiver issued to you by the Ethics Commission on April 2, 1992. The Ethics Commission granted you a waiver to seek and accept employment with certain firms which currently contract with Montgomery County and over which you, as a public employee in the Montgomery County Department of Environmental Protection (DEP), had contract administration responsibility. This waiver was conditioned on you not accepting for a period of 12 months any assignment involving a contract with the "Montgomery County Government" without first obtaining the consent of the Ethics Commission.

You have indicated that you have accepted employment with Woodward-Clyde Consultants (Woodward-Clyde), a firm which provides engineering, geological and environmental services. Woodward-Clyde is planning to respond to a Request for Proposals (No. 9312A602) (RFP) issued by the Maryland-National Capital Park and Planning Commission (M-NCPPC). Woodward-Clyde would like to assign you to this project.

The Ethics Commission notes that M-NCPPC is not subject to the Montgomery County Public Ethics Law. See, Section 19A-4(a), Montgomery County Code (1984), and Maryland Code Annotated, Article 40A, Section 6-101 et seq. Accordingly, if Woodward-Clyde receives a contract award under the RFP and assigns you to the project, you would not be involved in a contract with the Montgomery County Government for County ethics law purposes. The Ethics Commission also notes that, while the RFP will require the contractor to obtain information from DEP, the contractor will not be involved in a contractual relationship with DEP.

Accordingly, the Ethics Commission believes that your services may be included in the Woodward-Clyde proposal and, if awarded, you may also work for Woodward-Clyde on the contract with M-NCPPC.

If you have any questions regarding this matter, please contact the Commission.


[Waiver 1992-10]
W-92-38

MEMORANDUM

November 6, 1992

TO: Betty Ann Krahnke
Councilmember
FROM: Jay L. Cohen, Chair
Montgomery County Ethics Commission
RE: Request for Waiver

The Ethics Commission has reviewed your request dated September 25, 1992, for a waiver to participate as a Councilmember in impending discussions and decisions regarding the disposal of solid waste.

Based on your memorandum, the Ethics Commission understands that you and your husband own 800 shares of Waste Management, Inc. (Waste Management). There are about 495,535,000 outstanding shares of Waste Management; each share is currently worth approximately $35. The net income of Waste Management in 1991 was approximately $609,509,000. Waste Management is in the business of transporting and disposing of solid waste.

In order to understand the role of the Council in the impending debate and action on how the County should dispose of its solid waste, the Ethics Commission interviewed Council Legislative Analyst Stewart McKenzie who is responsible for analyzing solid waste issues for the Council. Based on this interview and information obtained by Commission staff, the Ethics Commission understands the Council's role in the impending solid waste decisions to be as follows:

The County is undergoing a review of its solid waste disposal plan. This review is centered on the fundamental decision of whether to: (1) burn or bury non-recyclable solid waste inside Montgomery County; or (2) burn or bury non-recyclable waste outside Montgomery County. The current County plan, which is now under review, is to burn non-recyclable solid waste inside Montgomery County at Dickerson and bury the ash at a nearby landfill. In order to evaluate the costs and benefits of in-County versus out-of-County solid waste disposal, the Transportation and Environmental Committee of the Council has requested the Executive to seek offers from private solid waste disposal firms to transport and dispose of the County's solid waste outside of the County.

The estimated term of a contract to dispose of the full solid waste stream outside of the County is 30 years. The estimated value of such a contract is between 5 and 7 billion dollars.

The County expects to receive 7 to 8 responses to its solicitation for out-of-County solid waste transportation and disposal. Waste Management is expected to meet the County's minimum qualifications and may submit a response to this solicitation. The Council intends to review the responses. After this review, the Council will decide whether to amend the Ten Year Solid Waste Management Plan by designating the mix of disposal technology and possibly the out-of-County disposal site. The decision of the technology mix and where the disposal will take place may well determine the specific vendor for out-of-County disposal if that option is selected.

The Council hopes to complete this review and decision-making process before the end of 1992.

Section 19A-11 prohibits a public employee from participating in any matter that affects, in a manner distinct from its effect on the public generally, a business in which the public employee has an economic interest. The Ethics Commission finds that your economic interest in Waste Management's stock exceeds the minimum $1,000 threshold applicable to Section 19A-11. Accordingly, the question is whether or not your participation in this decision-making process may affect Waste Management in a manner distinct from its effect on the other potential vendors.

In this regard, the Ethics Commission has considered two alternative levels of your participation in the decision-making process.

On the one hand, if your sole participation in the process were to be that of generally amending the Comprehensive Solid Waste Plan or Chapter 48 of the Code, the Commission believes that your actions would not affect any specific business in a manner distinct from its effect on the public generally. Therefore, in such a case, your participation would not require a waiver.

On the other hand, however, the Ethics Commission understands from your staff that your participation in this process may well include making some very specific decisions regarding such matters as the acceptable technology mix and the acceptable geographic disposal site(s). Since such decisions could themselves actually pre-determine the specific vendor(s) who could receive this contract award, your actions would affect a specific business in a manner distinct from its effect on the public generally. Therefore, in this later case, your participation would require a waiver.

Section 19A-8 authorizes the Ethics Commission to grant a waiver from the prohibition of Section 19A-11 if the Commission finds that:

"(1) The best interest 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."

A. Best Interest Test. The Ethics Commission believes that it is in the public interest for all members of the County Council to participate in reaching a decision on the extraordinarily important decision of how the County will dispose of its solid waste. Accordingly, the Commission concludes that granting you a waiver would be in the best interest of the County.

B. Balance Test: Public Benefit vs. Public Harm. The Ethics Commission believes that due to its extraordinary term and value, a contract to dispose of the County's solid waste may well have a positive impact on the value of the contract awardee's stock. In this case, a thirty year contract valued at 5 to 7 billion dollars may well have a positive impact on the value of the stock of a corporation the size of Waste Management. Therefore, your participation in this matter would involve an actual conflict of interest.

The potential harm which could be caused by this conflict is mitigated by the fact that you are participating in a decision-making process that involves other members of the Council. It is also mitigated by the fact that the proceedings of the Council, as a public body, are subject to the State Open Meetings Act. Finally, by imposing a condition that you publicly disclose your holdings in Waste Management, the Ethics Commission believes that the potential of actual public harm in this case would be minimized even further.

Against this potential harm must be measured and balanced the importance to Montgomery County of its elected officials participating in a decision as significant as solid waste disposal.

On balance, the Ethics Commission concludes that your participation in the discussions and decisions on solid waste disposal outweigh the actual harm of any conflict of interest.

C. Unfair Advantage Test. Finally, the Ethics Commission does not believe that granting you a waiver to participate in this matter will give you an unfair advantage over other members of the public.

Accordingly, the Ethics Commission grants you a waiver from Section 19A-11 to participate in the discussions and decisions regarding whether the County will provide for out-of-County transportation and disposal of solid waste and establishing a financing plan for solid waste disposal and recycling.

This waiver is conditioned on you publicly including in the minutes of the next Council meeting regarding this matter your interest in Waste Management and the fact that the Ethics Commission has granted you a waiver to participate in this matter.

If you have any questions regarding this waiver, please contact the Ethics Commission.


[Waiver 1992-11]
W-92-39

MEMORANDUM

November 6, 1992

TO: Marilyn J. Praisner
Councilmember
FROM: Jay L. Cohen, Chair
Montgomery County Ethics Commission
RE: Request for Waiver

The Ethics Commission has reviewed your request dated October 13, 1992, for a waiver to participate as a Councilmember in impending discussions and decisions regarding the disposal of solid waste.

Based on your memorandum, the Ethics Commission understands that you and your husband own 100 shares of Waste Management, Inc. (Waste Management). There are about 495,535,000 outstanding shares of Waste Management; each share is currently worth approximately $35. The net income of Waste Management in 1991 was approximately $609,509,000. Waste Management is in the business of transporting and disposing of solid waste.

In order to understand the role of the Council in the impending debate and action on how the County should dispose of its solid waste, the Ethics Commission interviewed Council Legislative Analyst Stewart McKenzie who is responsible for analyzing solid waste issues for the Council. Based on this interview and information obtained by Commission staff, the Ethics Commission understands the Council's role in the impending solid waste decisions to be as follows:

The County is undergoing a review of its solid waste disposal plan. This review is centered on the fundamental decision of whether to: (1) burn or bury non-recyclable solid waste inside Montgomery County; or (2) burn or bury non-recyclable waste outside Montgomery County. The current County plan, which is now under review, is to burn non-recyclable solid waste inside Montgomery County at Dickerson and bury the ash at a nearby landfill. In order to evaluate the costs and benefits of in-County versus out-of-County solid waste disposal, the Transportation and Environmental Committee of the Council has requested the Executive to seek offers from private solid waste disposal firms to transport and dispose of the County's solid waste outside of the County.

The estimated term of a contract to dispose of the full solid waste stream outside of the County is 30 years. The estimated value of such a contract is between 5 and 7 billion dollars.

The County expects to receive 7 to 8 responses to its solicitation for out-of-County solid waste transportation and disposal. Waste Management is expected to meet the County's minimum qualifications and may submit a response to this solicitation. The Council intends to review the responses. After this review, the Council will decide whether to amend the Ten Year Solid Waste Management Plan by designating the mix of disposal technology and possibly the out-of-County disposal site. The decision of the technology mix and where the disposal will take place may well determine the specific vendor for out-of-County disposal if that option is selected.

The Council hopes to complete this review and decision-making process before the end of 1992.

Section 19A-11 prohibits a public employee from participating in any matter that affects, in a manner distinct from its effect on the public generally, a business in which the public employee has an economic interest. The Ethics Commission finds that your economic interest in Waste Management's stock exceeds the minimum $1,000 threshold applicable to Section 19A-11. Accordingly, the question is whether or not your participation in this decision-making process may affect Waste Management in a manner distinct from its effect on the other potential vendors.

In this regard, the Ethics Commission has considered two alternative levels of your participation in the decision-making process.

On the one hand, if your sole participation in the process were to be that of generally amending the Comprehensive Solid Waste Plan or Chapter 48 of the Code, the Commission believes that your actions would not affect any specific business in a manner distinct from its effect on the public generally. Therefore, in such a case, your participation would not require a waiver.

On the other hand, however, the Ethics Commission understands from your staff that your participation in this process may well include making some very specific decisions regarding such matters as the acceptable technology mix and the acceptable geographic disposal site(s). Since such decisions could themselves actually pre-determine the specific vendor(s) who could receive this contract award, you actions would affect a specific business in a manner distinct from its effect on the public generally. Therefore, in this latter case, your participation would require a waiver.

Section 19A-8 authorizes the Ethics Commission to grant a waiver from the prohibition of Section 19A-11 if the Commission finds that:

"(1) The best interest 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."

A. Best Interest Test. The Ethics Commission believes that it is in the public interest for all members of the County Council to participate in reaching a decision on the extraordinarily important decision of how the County will dispose of its solid waste. Accordingly, the Commission concludes that granting you a waiver would be in the best interest of the County.

B. Balance Test: Public Benefit vs. Public Harm. The Ethics Commission believes that due to its extraordinary term and value, a contract to dispose of the County's solid waste may well have a positive impact on the value of the contract awardee's stock. In this case, a thirty year contract valued at 5 to 7 billion dollars may well have a positive impact on the value of the stock of a corporation the size of Waste Management. Therefore, your participation in this matter would involve an actual conflict of interest.

The potential harm which could be caused by this conflict is mitigated by the fact that you are participating in a decision-making process that involves other members of the Council. It is also mitigated by the fact that the proceedings of the Council, as a public body, are subject to the State Open Meetings Act. Finally, by imposing a condition that you publicly disclose your holdings in Waste Management, the Ethics Commission believes that the potential of actual public harm in this case would be minimized even further.

Against this potential harm must be measured and balanced the importance to Montgomery County of its elected officials participating in a decision as significant as solid waste disposal.

On balance, the Ethics Commission concludes that your participation in the discussions and decisions on solid waste disposal outweigh the actual harm of any conflict of interest.

C. Unfair Advantage Test. Finally, the Ethics Commission does not believe that granting you a waiver to participate in this matter will give you an unfair advantage over other members of the public.

Accordingly, the Ethics Commission grants you a waiver from Section 19A-11 to participate in the discussions and decisions regarding whether the County will provide for out-of-County transportation and disposal of solid waste and establishing a financing plan for solid waste disposal and recycling.

This waiver is conditioned on you publicly including in the minutes of the next Council meeting regarding this matter your interest in Waste Management and the fact that the Ethics Commission has granted you a waiver to participate in this matter.

If you have any questions regarding this waiver, please contact the Ethics Commission.


[Waiver 1992-12]
W-92-43

December 14, 1992

Kenneth P. Norkin


Re: Request for Waiver

Dear Mr. Norkin:

The Ethics Commission has reviewed your request for a waiver dated October 23, 1992. Based on your waiver request, the Commission understands that facts as follows:

You are a member of the Historic Preservation Commission (HPC). Members of the HPC are volunteers who receive no compensation from the County.

The County's Office of Economic Development (OED) has expressed an interest in obtaining services from RMR & Associates (RMR) to provide public relations services regarding the County's Economic Development Program. RMR, in turn, has expressed an interest in contracting with you to provide writing and editing support in performing its contract with the County. You anticipate that the value of your contract with RMR would be under $1,000. The topics you would be dealing with under your contract with RMR are not related to matters which would come under the jurisdiction of HPC.

Section 11B-52 states:
Unless authorized by law or the Ethics Commission under Chapter 19A, a person transacting business with the County must not employ a public employee while the employee is a public employee. Public employee and employ as used in this section are defined in Chapter 19A, Ethics.

Section 19A-4(g) defines employ as "engaging in an activity for compensation." Section 19A-2 provides that the ethics law is to be liberally construed to accomplish the purpose of enhancing public confidence that County business is being conducted on an impartial basis. Accordingly, the Ethics Commission concludes that Section 11B-52 prohibits a public employee not only from entering into a traditional employer/employee relationship with a County contractor but also prohibits a public employee from entering into an independent contractual relationship to provide services for compensation to a County contractor. Therefore, Section 11B-52 prohibits RMR from subcontracting to you any of its work under the OED contract.

Section 19A-8 authorizes the Commission to grant a waiver from the prohibitions of Section 11B-52 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.

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

1. You serve as a member of HPC on a voluntary basis and without compensation. You are in the business of providing writing and editorial services; providing these services to RMR is, therefore, in the normal course of your vocation. The Ethics Commission believes that it is in the best interest of the County to allow volunteers to pursue their livelihood with minimal interference by the County.
2. The editorial services that you would perform for RMR are not related to matters in which you would be asked to participate as a member of HPC. Accordingly, the potential for any conflict of interest between providing services to RMR under a contract with OED and your duties as a member of HPC is remote.
3. The Commission does not believe that granting you a waiver would provide you with an unfair advantage over other members of the public.

Accordingly, the Ethics Commission grants you a waiver to provide writing and editorial services to RMR under a County contract to assist OED in promoting the County's economic development program. This waiver is conditioned on your not accepting any assignment on a specific matter which may come before the HPC.

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

 

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