[Waiver 1993-1]
W-93-44
MEMORANDUM

January 27, 1993

TO: Sergeant James A. Fenner, Jr.
Supervisor, Wheaton Glenmont District
Montgomery County Police Department
FROM: Jay L. Cohen, Chair
Montgomery County Ethics Commission
RE: Request for Waiver

The Ethics Commission has reviewed your request for a waiver dated November 13, 1992. Based on this request, the Ethics Commission understands the facts as follows:

You are a Sergeant in the Montgomery County Police Department. Prior to September 1990, you were assigned to the Silver Spring District as a patrol supervisor. In September 1990, you were reassigned to assist the Recruitment Section located in Police Headquarters in Rockville. In February 1991, the Department reassigned most of the personnel in the Recruitment Section in Rockville to various other assignments. Even though you wanted to return to Silver Spring, the only Sergeant position available was in the Wheaton Glenmont District where you were, in fact, assigned.

For the past five years, you have been engaged in outside security related employment at the Aspen Hill Shopping Center. You have indicated that you accepted the transfer to the Wheaton Glenmont District subject to an express understanding with the Chief of the Patrol Division that you could continue your outside employment at the Aspen Hill Shopping Center.

Section 4.7 of the Ethics Commission Regulations on outside employment states:

Sworn County police officers and civilian police employees may not hold outside employment involving security duties in the district to which they are assigned as County employees, except as permitted by special waiver granted by the Ethics Commission on a case by case basis. (Emphasis in original).

The Aspen Hill Shopping Center is located in the Wheaton Glenmont District. You have asked for a waiver to continue your outside security related work at the Aspen Hill Shopping Center.

Section 19A-8 authorizes the Ethics Commission to grant a waiver from outside employment regulations if the Commission finds any one of the following:

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

Section 19A-8(d) expressly authorizes the Commission to impose appropriate conditions to fulfill the purposes of the ethics law when it grants a waiver.

In applying these criteria to this waiver request, the Ethics Commission finds the following factors persuasive:

1. You were transferred to the Wheaton Glenmont District even though you expressed a desire to be transferred to the Silver Spring District.
2. You held your security related employment at the Aspen Hill Shopping Center prior to your transfer to the Wheaton Glenmont District.
3. You were assured by police management that you would be able to continue your security related employment at the Aspen Hill Shopping Center even though the shopping center was located in the District to which you were assigned.

Under these specific circumstances, the Ethics Commission believes that it would be unfair to require you to immediately cease your outside security related employment at the Aspen Hill Shopping Center. The Commission believes that such precipitous action on the part of the Commission might reduce the ability of the County to retain highly qualified public employees.

Accordingly, the Ethics Commission grants you a waiver to continue your security related employment at the Aspen Hill Shopping Center until June 11, 1993. This grace period is intended to allow you an opportunity to either seek other employment or obtain a transfer to another Police District. After June 11, 1993, you must cease your security related employment at the Aspen Hill Shopping Center unless you have been assigned to a District other than the Wheaton Glenmont District. You must inform the Commission how this matter is resolved.

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

[Waiver 1993-2]
W-93-45

MEMORANDUM

March 15, 1993

TO: Anne Schmitz, Chair
Montgomery County Commission on Child Care
FROM: Jay L. Cohen, Chair
Montgomery County Ethics Commission
RE: Advisory Opinion and Waiver

The Ethics Commission has reviewed your memorandum dated December 8, 1992. On behalf of the members of the Montgomery County Commission on Child Care (MCCCC), you have asked for advice concerning the applicability of certain provisions of the Montgomery County Public Ethics Law to the members of MCCCC and for appropriate waivers as necessary. The Ethics Commission has distilled the issues raised in your memorandum as follows:

1. Will the Ethics Commission grant a waiver to allow a member of MCCCC to participate in a matter that directly benefits a business in which the member has an economic or fiduciary interest?
2. Does the ethics law prohibit a member of MCCCC who is a parent from advocating funding for a program which benefits parents?
3. Is Ethics Commission Opinion 90-1 still valid and applicable to members of MCCCC?

Section 27-62 creates the MCCCC and provides that the County Executive appoints to the MCCCC 18 voting members subject to confirmation by the County Council. Under Section 27-62, 7 members should be providers of child care services (industry representatives), 5 members should be parents of children receiving child care services, 5 members should be selected from the business community and the general public, and one member should represent the Montgomery County Chapter of the Maryland Municipal League. Presently, each group of representatives has at least one member who has an economic or fiduciary interest in a child care provider.
Section 27-62(f) provides that MCCCC must issue an annual report recommending short and long-term measures the County should adopt to improve child care services. The MCCCC is authorized to evaluate County funding policies and programs affecting child care and make recommendations regarding the use of public funds to be spent on behalf of child care services. MCCCC also reviews standards for licensing and the operation of child care services and programs.
The basic conflict of interest rules in the ethics law are set out in Section 19A-11 which states:

(a) Unless permitted by waiver, a public employee must not participate in:
(1) any matter that affects, in a manner distinct from its effect on the public generally, any:
(A) property in which the public employee holds an economic interest;
(B) business in which the public employee has an economic interest; or
(C) property or business in which a relative has an economic interest, if the public employee knows about the relative's interest;
(2) any matter if the public employee knows or reasonably should know that any party to the matter is:
(A) any business of which the public employee is an officer, director, trustee, partner, or employee;

I. Participation in a matter that directly benefits a business in which a member of MCCCC has an economic or fiduciary interest.

Section 19A-11(a)(1) prohibits a public employee from participating in a matter that affects a business in which the public employee has an economic interest. In addition, Section 19A-11(a)(2)(A) prohibits a public employee from participating in a matter that involves, as a party, a business of which the public employee is an officer, director, or employee. The Ethics Commission finds that the ethics law prohibits a member of MCCCC from participating in a matter involving a program which the member knows or reasonably should know directly benefits a business in which the member may have an economic or fiduciary interest.

MCCCC has asked for a waiver for each member of MCCCC to participate in matters that involve the funding of programs that are "generally available to all qualified child care providers." Section 19A-11 prohibits a public employee from participating in a matter only if the matter affects the employee in a manner distinct from its effect on the public generally or involves as a party a business in which the member has an economic or fiduciary interest. The Ethics Commission concludes that it is not a conflict of interest for members of MCCCC to participate in a matter involving a program under which all qualified child care providers may be eligible for a County contract or other benefit. Accordingly, a waiver is not necessary.

The ethics law, however, does prohibit a member of MCCCC from participating in a matter involving a matter the member knows or reasonably should know directly benefits a business in which the member has an economic or fiduciary interest. A matter directly benefits a business if the business:

(1) holds a County contract to perform services or provide goods under a program involved in the matter;
(2) would receive a County contract to perform services or provide goods under a program involved in the matter as a sole source provider or as a grantee.

The MCCCC has requested a waiver to allow all members of MCCCC to discuss, but not vote on, any matter that directly benefits businesses in which the member has an economic or fiduciary interest.

Section 19A-8 authorizes the Commission to grant a public employee or class of public employees 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 a 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 Commission makes the following findings:

1. The County law establishing the MCCCC creates more than a disinterested advisory committee; it creates an advocacy body. Section 27-62(c) envisions that 12 of the 18 voting members are either associated with providers of child care services or recipients of those services. Section 27-62(f) provides that the primary duty of MCCCC is to make recommendations to County government to "improve services in support of child care." If some members of MCCCC are prohibited from participating in any manner, including the expression of views and conveying information, in matters involving programs which directly benefit a business in which the member has an economic or fiduciary interest, the intent of the law creating MCCCC would, in part, be frustrated. Accordingly, the Commission finds that granting a waiver would be in the best interest of the County.
2. The Ethics Commission believes that participation of a member of MCCCC in a matter which directly benefits a business in which the member has an economic or fiduciary interest creates a minimal conflict of interest because:
(a) The MCCCC does not make decisions regarding government funding of child care programs.
(b) The MCCCC has 18 voting members who represent differing interests. This creates a "check and balance" system within the MCCCC. For example, members who represent parents of children will tend to check the interests of members who represent providers of child care services. Even among the 7 members who represent service providers, there may well be competition for scarce government resources.
(c) The potential for harm resulting from a conflict of interest would be further minimized if a waiver is conditioned on a requirement that a member first disclose in an open meeting of MCCCC his or her relationship with the business in which the member has an economic or fiduciary interest. The disclosure should be made at each MCCCC meeting at which the matter is considered and prior to participating in the matter. This disclosure will enhance the "check and balance" mechanism built into the law creating MCCCC.
(d) MCCCC proposes to condition a waiver by limiting the participation of a member on matters that directly benefit a business in which the member has an economic or fiduciary interest to discussion only. The member would not be able to cast a vote on that matter. The Commission believes that this condition further insulates the County from any harm that may result from a conflict of interest caused by a member's participation in the matter.
3. There is no indication that granting a waiver in this matter will provide a member of MCCCC, including an industry representative, with an unfair advantage over other members of the public.

Accordingly, the Ethics Commission grants a waiver to members of MCCCC to participate in matters which directly benefit a business in which the member has an economic or fiduciary relationship, subject to the following conditions:

(1) Before participating in a matter which may directly benefit a business in which the member has an economic or fiduciary interest, the member must disclose the interest publicly in each meeting of MCCCC which considers the matter. This disclosure should be reflected in the minutes of MCCCC.
(2) The member's participation under this waiver must be limited to discussion only; the member must not vote on the matter.

II. Does the ethics law prohibit a member of MCCCC who is a parent from advocating funding of a County program that may benefit the member?

Section 19A-11(a)(1) prohibits a public employee from participating in a particular matter if the matter affects the public employee in a matter distinct from its effect on the public generally. Programs that benefit parents impact on significant numbers of individuals. Accordingly, the Commission concludes that advocating a program that benefits parents is participating in a matter that affects the public generally. An example of this type of program is the Working Parents Assistance Program in which vouchers are issued to income eligible parents to purchase services from any licensed child care provider. Consequently, the Commission concludes that the ethics law does not prohibit a member of MCCCC who is a parent from advocating a program that benefits that member along with other parents.

III. Is Opinion 90-1 still valid?

You have asked the Ethics Commission to consider whether Opinion 90-1 applies to members of MCCCC. In Opinion 90-1, the Commission concluded:

1. The ethics law applies to persons appointed to a County commission whether or not the person is compensated for serving on the body;
2. The ethics law provides that a public employee must not engage in outside employment without first obtaining the consent of the Ethics Commission;
3. The requirement of obtaining the consent of the Ethics Commission before engaging in outside employment does not apply to a member of a board or commission with regard to employment held at the time of appointment if that employment was publicly disclosed to the appointing authorities. This exemption applies to clients acquired by a self-employed member after appointment;
4. County procurement law prohibits a contractor with the County from employing a public employee at the same time as having a contract with the County;
5. County ethics law prohibits a public employee, without a waiver from the Commission, from being employed by an entity contracting with the agency with which the employee is affiliated;
7. A self-employed member of a board or committee subsequent to appointment, must not contract with the County or take as a client an entity which is subject to the authority of or contracts with the agency with which the employee is affiliated;
8. A member of a board or committee may, subsequent to appointment, contract with the County if the member obtains a waiver from the Ethics Commission or resigns prior to submitting a contract proposal to the County.

Opinion 90-1 was issued prior to the general revision of the County ethics law in 1990. The provisions relied on in Opinion 90-1, however, were unchanged by the 1990 revision of the ethics law. Section 19A-4(m) provides that a public employee includes any person appointed to a County commission whether or not the person is compensated for serving on the body. Section 19A-12(a)(1) provides that a public employee must not engage in other employment unless the employment is first approved by the Ethics Commission. Section 19A-12(c) exempts from the prohibitions of Section 19A-12(a) and (b) a member of a board, commission or similar body in regard to employment held when the employee was appointed if the employment was publicly disclosed before appointment to the appointing authority and to the County Council when confirmation is required. Section 11B-52 continues to prohibit a contractor from employing any public employee at the same time as having a contract with the County. Since the provisions and policies underlying the present ethics law do not constitute a change from the ethics law that applied when Opinion 90-1 was issued, the Ethics Commission reaffirms the validity of Opinion 90-1. Accordingly, the conclusions reached in Opinion 90-1 apply to members of MCCCC.

The Commission trusts you will find this memorandum responsive to your inquiry. If you have any questions, please do not hesitate to contact the Commission.

[Waiver 1993-3]
W-93-46A

MEMORANDUM

March 15, 1993

TO: Kermit Mohn, Chair
Montgomery County Commission on People with Disabilities
FROM: Jay L. Cohen, Chair
Montgomery County Ethics Commission
RE: Advisory Opinion and Waiver

On July 1, 1992, the Ethics Commission issued an Advisory Opinion and Waiver to the members of the Montgomery County Commission on People with Disabilities (CPD). In the July 1st Opinion and Waiver, the Ethics Commission stated in:

Part I. The ethics law does not prohibit a member of CPD who is a person with a disability from advocating a program that benefits the member along with other people with disabilities.
Part II. The ethics law prohibits a member of CPD, including an industry representative, from participating in a matter that involves a program under which the member's employer receives funds. The Ethics Commission, however, granted a waiver to industry representatives of CPD to participate in matters involving programs under which the industry representative's employer receives funds subject to the following conditions:
(a) The waiver only applies to members who were appointed to CPD as an industry representative;
(b) The Chair of CPD must provide each member of the CPD with a current membership roster that indicates the capacity in which each member is appointed and must identify the organization with which the industry representative is affiliated;
(c) The industry representative must not participate in a matter that involves a program under which the industry representative's employer receives or would receive funds as a sole source provider or participate in matters regarding a grant to the industry representative's employer.
Part III. The ethics law prohibits a member of CPD from participating in a matter that directly involves a business with which the CPD member has a fiduciary or economic relationship. The Ethics Commission declined to grant a class waiver to allow each member of CPD to participate in a matter that directly involves a business with which the member has a fiduciary or economic relationship.
Part IV. Section 11B-52 prohibits a member of CPD from contracting with the County without first obtaining a waiver from the Ethics Commission. The Ethics Commission reaffirmed an earlier opinion which concluded that members of a committee may contract with the County if they obtain a waiver from the Commission or resign prior to submitting a proposal to the County. The Ethics Commission declined to grant a class waiver to all members of CPD to contract in all cases with the County.

After issuing the July 1st Opinion and Waiver, the Ethics Commission responded to a similar request for advice and waiver from the Montgomery County Commission on Child Care (MCCCC).

After careful consideration of the matters raised in the original request from CPD and the request from MCCCC, the Ethics Commission replaces parts II and III of the July 1st Opinion and Waiver to CPD with the following:

II-III. Participation in a matter that benefits a business in which a member of CPD has an economic or fiduciary interest.

Section 19A-11(a)(1) prohibits a public employee from participating in a matter that affects a business in which the public employee has an economic interest. In addition, Section 19A-11(a)(2)(A) prohibits a public employee from participating in a matter that involves, as a party, a business of which the public employee is an officer, director or employee. Accordingly, Section 19A-11 prohibits a public employee from participating in a matter if the matter affects the employee in a manner distinct from its effect on the public generally or involves as a party a business in which the member has an economic or fiduciary interest. The Ethics Commission concludes, therefore, that it is not a conflict of interest for members of CPD to participate in a matter involving a program under which all qualified service providers to persons with disabilities may be eligible for a County contract or other benefit.

The ethics law, however, does prohibit a member of CPD from participating in a matter involving a matter the member knows or reasonably should know directly benefits a business in which the member has an economic or fiduciary interest. A matter directly benefits a business if the business:

(1) holds a County contract to perform services or provide goods under a program involved in the matter;
(2) would receive a County contract to perform services or provide goods under a program involved in the matter as a sole source provider or as a grantee.

The CPD has requested a waiver to allow members of CPD to participate in a matter that directly benefits a business in which the member has an economic or fiduciary interest.

Section 19A-8 authorizes the Commission to grant a public employee or class of public employees 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 applying these criteria, the Commission makes the following findings:

1. The County law establishing the CPD creates more than a disinterested advisory committee; it creates an advocacy body. Section 27-51 envisions that all of the 25 voting members of CPD are either associated with organizations that provide services to or represent people with disabilities, are recipients of those services, or are parents of people with disabilities. Section 27-52 provides that the duties of CPD include recommending programs "to promote the well being of people with disabilities" and make recommendations "for the more effective delivery of services and programs to people with disabilities." If some members of CPD are prohibited from participating in any manner, including the expression of views and conveying information, in matters involving programs which directly benefit a business in which the member has an economic or fiduciary interest, the intent of the law creating the CPD would, in part, be frustrated. Accordingly, the Commission finds that granting a waiver would be in the best interest of the County.
2. The Ethics Commission believes that participation of a member of CPD in a matter which directly benefits a business in which the member has an economic or fiduciary interest creates, under certain conditions, a minimal conflict of interest because:
(a) The CPD does not make decisions regarding government funding of programs.
(b) The CPD has 25 voting members who represent differing interests. This creates a "check and balance" system within CPD. For example, members who represent recipients of services will tend to check the interests of members who represent providers of services. Even among 9 voting members who represent service providers, there may well be competition for scarce government resources.
(c) The potential harm resulting from a conflict of interest would be further minimized if a waiver is conditioned on a requirement that a member must first disclose in an open meeting of CPD his or her relationship with the business in which the member has an economic or fiduciary interest. The disclosure should be made at each CPD meeting at which the matter is considered and prior to participating in the matter. This disclosure will enhance the "check and balance" mechanism built into the law creating the CPD.
(d) Conditioning a waiver by limiting the participation of a CPD member to discussion of matters that directly benefit a business in which the member has an economic or fiduciary interest will further minimize any potential harm resulting from a conflict of interest.
3. There is no indication that granting a waiver in this matter will provide a member of CPD, including an industry representative, with an unfair advantage over other members of the public.

Accordingly, the Ethics Commission grants a waiver to members of CPD to participate in matters which directly benefit a business in which the member has an economic or fiduciary relationship, subject to the following conditions:

(1) Before participating in a matter which may directly benefit a business in which the member has an economic or fiduciary interest, the member must disclose the interest publicly in each meeting of the CPD which considers the matter. This disclosure should be reflected in the minutes of CPD.
(2) The member's participation under this waiver must be limited to discussion only; the member must not vote on the matter.

If you have any questions regarding this Revised Opinion and Waiver, please do not hesitate to contact the Commission.

[The following was revised as Waiver 1993-3 (W-93-46A; see above) and is abstracted only as Waiver 1993-3 and not separately]

W-93-46
MEMORANDUM

July 1, 1992

TO: Kermit Mohn, Chair
Montgomery County Commission on People with Disabilities

Howard B. Jacobson, Legislative Liaison
Montgomery County Commission on People with Disabilities

FROM: Jay L. Cohen, Chair [signed]
Montgomery County Ethics Commission

RE: Advisory Opinion and Waiver

The Ethics Commission has reviewed your memorandum of April 22, 1992. On behalf of the members of the Montgomery County Commission on People with Disabilities (CPD), you have asked for advice concerning the applicability of the Montgomery County Public Ethics Law to the members of CPD and for appropriate waivers as necessary. The Ethics Commission has distilled the issues raised in your memorandum as follows:

1. Does the ethics law prohibit a member of CPD who is a person with a disability from advocating funding of a County program that would benefit that member? If the answer is yes, you ask the Commission to grant a waiver under the ethics law to allow a member who is a person with a disability to participate in CPD decisions concerning programs that may benefit the member.

2. Does the ethics law prohibit a member of CPD who represents an organization that provides services to persons with disabilities (an industry representative) from participating in CPD matters that deal with programs under which the organization that employs the industry representative receives County funds? If the answer is yes, you ask the Ethics Commission to grant a waiver under the ethics law to allow an industry representative to participate in CPD decisions involving programs under which the organization that employs the industry representative receives County funds.

3. Does the ethics law prohibit a member of CPD from participating in CPD matters that directly involve a business with which a member is affiliated as an employee, officer, director, trustee, or employee? If the answer is yes, you ask the Ethics Commission to grant a waiver under the ethics law to allow a member to participate in CPD decisions directly involving an organization with which the member has a fiduciary or economic relationship.

4. Does the ethics law prohibit a member of CPD from contracting with the County? If the answer is yes, you ask the Commission to grant a waiver under the ethics law to allow a member of CPD to contract with the County.

Section 27-51 creates the CPD and provides that the County Executive appoints 25 voting members subject to confirmation by the County Council. Section 27-51 further provides that of the 25 voting members, 13 must be people with disabilities, 3 must be parents of people with disabilities, and 9 must represent organizations and agencies that provide services or represent people with disabilities.

Section 27-52 sets forth the duties of CPD which include: (1) evaluating programs and services for people with disabilities; (2) review Federal, State and local legislation concerning people with disabilities; (3) recommend appropriate sources of funding for programs for people with disabilities; and (4) make budget recommendations concerning funding for services and programs for people with disabilities.

The basic conflict of interest rules in the ethics law are set out in Section 19A-11 which states:

(a) . . . Unless permitted by a waiver, a public employee must not participate in:
(1) any matter that affects, in a manner distinct from its effect on the public generally, any:
(A) property in which the public employee holds an economic interest;
(B) business in which the public employee has an economic interest; or
(C) property or business in which a relative has an economic interest, if the public employee knows about the relative's interest;
(2) any matter if the public employee knows or reasonably should know that any party to the matter is:
(A) any business of which the public employee is an officer, director, trustee, partner, or employee;
* * *

I. Does the ethics law prohibit a member of CPD who is a person with a disability from advocating funding of a County program that benefits the member?

Section 19A-11(a)(1) prohibits a public employee from participating in a particular matter if the matter affects the public employee in a manner distinct from its effect on the public generally. Programs that benefit persons with a disability impact on significant numbers of individuals who the Commission notes do not choose to become a member of that class. Accordingly, the Commission concludes that advocating a program that benefits people with disabilities is participating in a matter that affects the public generally. Consequently, the Commission concludes that the ethics law does not prohibit a member of CPD who is a person with a disability from advocating a program that benefits that member along with other people with disabilities.

II. Does the ethics law prohibit an industry representative from participating in CPD matters that deal with programs which benefit the business that employs the industry representative?

Section 19A-11(a)(1) prohibits a public employee from participating in a matter that affects a business in which the public employee has an economic interest. The Ethics Commission believes that a member of CPD who participates in a CPD matter involving a program under which the member's employer receives funds is participating in a matter that affects a business in which the member has an economic interest. Accordingly, Section 19A-11(a)(1) prohibits a member of CPD, including an industry representative, from participating in a matter that involves a program under which the member's employer receives funds.

Section 19A-8 authorizes the Commission to grant a public employee or a class of public employees 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."

In applying these criteria to this issue, the Commission makes the following findings:

1. The County law establishing the CPD requires the appointment of 9 voting members who are industry representatives. If an industry representative could not participate in discussions regarding programs under which the member's employer receives funds, the intent of the law creating the CPD would, in part, be frustrated. Accordingly, the Commission funds that granting a waiver would be in the best interest of the County.
2. The CPD is an advisory body; it does not make final decisions regarding government action. The Commission also notes that there are 25 voting members from various backgrounds which tend to create a "check and balance" system within the CPD. Accordingly, the Ethics Commission believes that an industry representative who participates in a matter concerning a program under which that industry representative's employer may, along with others, be receiving funds creates a minimal conflict of interest. Balanced against this, the Commission finds that the statute creating the CPD clearly intends that industry representatives participate in program evaluation and recommendations. Accordingly, the Commission finds that the importance to the County of an industry representative performing his or her duties on the CPD outweighs the actual or potential harm of a conflict of interest.
3. There is no indication that granting a waiver in this matter will provide an industry representative with an unfair advantage over other members of the public.

Accordingly, the Ethics Commission grants a waiver to the industry representatives of the CPD to participate in matters involving programs under which the industry representative's employer receives funds, subject to the following conditions:

(1) The waiver only applies to members who are appointed to CPD as an industry representative.
(2) The Chair of CPD must provide each member of the CPD with a current membership roster that indicates the capacity in which each member was appointed; i.e., person with a disability; parent of a person with a disability; industry representative. The Chair must identify the organization with which the industry representative is affiliated.
(3) The industry representative must not participate in a matter that involves a program under which the industry representative's employer receives or would receive funds as a sole source provider or participate in discussions regarding a grant to the industry representative's employer.

III. Does the ethics law prohibit a member of CPD from participating in a matter that directly involves a business with which the member has a fiduciary or economic relationship?

Section 19A-11(a)(1) prohibits a public employee from participating in a matter that affects a business in which the member has an economic interest. In addition, Section 19A-11(a)(2)(A) prohibits a public employee from participating in a matter that involves, as a party, a business of which the public employee is an officer, director, or employee. Accordingly, unless the Ethics Commission grants a waiver, a member of CPD may not participate in a matter that directly involves a business with which the CPD member has a fiduciary or economic relationship. An example of a matter in which a business is directly involved would be a program that results or would result in a sole source contract award or a grant to a specific business.

The Ethics Commission finds that it cannot apply the criteria under Section 19A-8 to grant a class waiver to all members of CPD to participate in every matter that directly involves a business with which the member has a fiduciary or economic relationship. Crucial factors such as the type of benefit that will flow to the affected business and the need of the particular member to participate in the deliberations of the CPD must be weighed on a case-by-case basis. Accordingly, the Commission declines to grant a class waiver to allow each member of CPD to participate in a matter that directly involves a business with which the member has a fiduciary or economic relationship.

IV. Does the ethics law prohibit a member of CPD from contracting with the County?

Section 11B-52 provides that unless authorized by law or the Ethics Commission a person who transacts business with the County must not simultaneously employ a public employee. Section 11B-52 further provides that a "public employee" includes uncompensated members of County boards and commissions and "employ" includes self-employment. Accordingly, members of CPD may not contract with the County without first obtaining a waiver from the Ethics Commission.

The Ethics Commission finds that it cannot apply the criteria under Section 19A-8 to grant a class waiver to all members of the CPD to contract in all cases with the County. For example, the Commission must assess the need of the County to continue to receive both the services of the individual as a member of CPD and as a contractor for the County on a case-by-case basis.

With regard to granting waivers to a member of a County board or commission to contract with the County, the Ethics Commission has previously advised:

. . . members of a board, committee, or commission may contract with the County if they obtain a waiver from the Commission or resign prior to submitting a proposal to the County. Waivers have been granted if the member has not participated in a recommendation regarding the specific project in question. Generally, the member is thereafter disqualified from participating in any government action which affects the project in question. (Emphasis in original.)

The Commission trusts you will find this memorandum responsive to your inquiry. If you have further questions, please do not hesitate to contact the Commission.

PRIVILEGED AND CONFIDENTIAL

September 13, 1994

TO: Joan Dyer Liversidge
Division on Children and Youth
Department of Family Resources
FROM: Jay L. Cohen, Chair [signed]
Montgomery County Ethics Commission
RE: Request for Waiver for Secondary Employment

The Montgomery County Ethics Commission has reviewed your request for permission to provide consultation services for the Metropolitan YMCA. You provided the following information in support of your request.

At the time of your submission, you were employed as the Substance Abuse Coordinator with the Department of Family Resources. In that position, you coordinated the provision of counseling services to families and youths experiencing problems associated with drug abuse and physical abuse. The YMCA has contracts with your department, but you are not responsible for monitoring them. The department, however, administers a few small mini-grants under the State Prevention grant program, which have been added to the Bethesda and Silver Spring youth center contracts with the YMCA. The YMCA asked you to provide consultation services on an as-needed basis to the Metro-wide area, which prompted your request for secondary employment approval. Your request is limited to providing consulting to the Metropolitan YMCA corporate office, and not the branches that operate within Montgomery County. On July 11, 1994, in a telephone conversation with the staff of the Ethics Commission, you indicated that you recently have been reassigned to a different division of the Department of Family Resources, which is not involved with the YMCA contracts.

The Ethics Law provides in part:

[U]nless the Commission grants a waiver under subsection 19A-8(b), a public employee must not:
(1) be employed by any business that:
(A) is regulated by the County agency with which the public employee is affiliated; or
(B) negotiates or contracts with the County agency with which the public employee is affiliated; or
(2) hold any employment relationship that would impair the impartiality and independence of judgment of the public employee.

§19A-12(b) of the Montgomery County Code 1994, as amended. The Montgomery County Code also provides:

[U]nless 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 . . . .

§11B-52 of the Montgomery County Code.

Pursuant to the provisions of §19A-8(b), the Ethics Commission may grant the requested waiver if it finds that:

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

Based upon the information you have provided, the Ethics Commission has determined that the waiver is necessary to ensure that you are able to continue providing the valuable services in the Division of Infants and Toddlers and that failure to do so could reduce the ability of the County to retain highly qualified public employees. Inasmuch as you no longer work in the division that has direct contact with the YMCA, no actual conflict of interest is likely to occur. As a result, the Commission grants the requested waiver.

[Waiver 1994-5]

MEMORANDUM

September 13, 1994

TO: Beth Molesworth, Staff
Montgomery County Commission on Child Care
Department of Family Resources
FROM: Heidi Strassler, Vice Chairman [signed]
Montgomery County Ethics Commission
RE: Request for Advisory Opinion and Waiver for Appointment to Commission on Child Care

The Ethics Commission has received and reviewed your request for advice and a waiver, if necessary, on behalf of a candidate for appointment to the Montgomery County Commission on Child Care (MCCCC). In support to this request, the following information was provided.

The applicant is the Executive Director of a non-profit agency which currently holds a contract with Montgomery County to provide information regarding child care resources and to make referrals. The funding for the contract occasionally is a matter of discussion by the MCCCC.

Pursuant to §27-62 of the Montgomery County Code 1994, the MCCCC was created to consist of 18 voting members appointed by the County Executive and confirmed by the County Council. The Code further requires that 7 of the members be providers of child care services (industry representatives); 5 should be parents of children receiving child care services; 5 should be selected from the business community and the general public; and 1 should represent the Montgomery County Chapter of the Municipal League.

The definition of public employee includes a member of a board, commission, committee, task force, or similar body, whether or not the person is compensated for their service or the body is permanent or temporary. §19A-4(m)(3) of the Montgomery County Code. Moreover, a public employee must not participate in a matter that affects a business in which the public employee has an economic interest, nor in a matter that involves a business in which the public employee is an officer, director, or employee. §§19A-11(a)(1) and (2)(A) of the Montgomery County Code.

In a previous advisory opinion and waiver, the Ethics Commission determined that a waiver was appropriate based upon the nature of the MCCCC as an advocacy body with the primary duty of making recommendations to the County government to improve services in support of child care. The Commission further found that the participation of a member of the MCCCC in a matter in which the member has a fiduciary or economic interest created a minimal conflict of interest and that there was no indication that the grant of a waiver would provide a member of the MCCCC with an unfair advantage over other members of the public. As a result, the requirements of §19A-8 of the Montgomery County Code had been met. A copy of the previous opinion and waiver is enclosed for your review.

The Ethics Commission considers the activities of the proposed member of the MCCCC, as described in your request, to be consistent with the analysis conducted for the entire Commission and, therefore, grants the requested waiver, subject to the following conditions:

1. Before participating in a matter which may directly benefit a business in which the member has an economic or fiduciary interest, the member must disclose the interest publicly in each meeting of MCCCC which considers the matter. This disclosure should be reflected in the minutes of MCCCC.
2. The member's participation under this waiver must be limited to discussion only; the member must not vote on the matter.

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

2784.HS:KLFH
94.04172

Enclosure

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

[Waiver 1994-6]

MEMORANDUM

October 18, 1994

TO: Andrea Eaton, Director
Silver Spring Regional Services

Linda Katz, Member
Silver Spring Center Citizens Advisory Board

FROM: Jay L. Cohen, Chair [signed]
Montgomery County Ethics Commission

RE: Request for Waiver

The Ethics Commission has reviewed the request for a waiver of the Ethics Law as it applies to a member of the Silver Spring Center Citizens Advisory Board (SSCCAB). Specifically, the member would like to continue to serve on the SSCCAB while performing as Project Manager under a contract to the Silver Spring Urban District (Urban District), which is a part of the Montgomery County Department of Transportation. In support of this request, you have submitted the following information.

In July 1994, Potomac Incorporated received a contract with the Urban District to perform promotion activities. The SSCCAB member is also the Project Manager for Potomac Incorporated. The contract was awarded by County staff who have no relationship with the SSCAB, and the SSCAB is not involved with the function of the Urban District or its promotion programs. You also have explained that the member's term with the SSCAB ends in February 1995 and her service until then is invaluable based upon her long-time residence in Silver Spring and her knowledge of the community. Moreover, she has been instrumental in matters involving the revitalization of the Silver Spring CBD and library services, and her writing and communication skills are an asset to the SSCCAB.

The Ethics Law provides:

[U]nless the Commission grants a waiver under subsection 19A-8(b), a public employee must not:
* * *
(2) hold any employment relationship that would impair the impartiality and independence of judgment of the public employee.

§19A-12(B)(2) of the Montgomery County Code 1994. To obtain a waiver, the Ethics Commission must fund that:

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

§19A-8(b) of the Montgomery County Code 1994.

Based upon the information provided, the Ethics Commission finds that the proposed employment is not likely to create an actual conflict of interest because the SSCCAB has no involvement with the functioning of the Urban District. The Commission finds that the waiver may be granted, with the condition that the duties associated with the two positions remain separate and do not coincide at any time.

If you have any questions, please do not hesitate to contact the Ethics Commission.

2844.JLC:KLFH
94.04720

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

_____________________________________________________________________
[Waiver 1995-0]

March 21, 1995

TO: Charles W. Thompson, Jr.
County Attorney
FROM: Jay L. Cohen, Chair
Montgomery County Ethics Commission
Re: Supplement to Request for Waiver for Venable, Baetjer and Howard

On January 17, 1995 the Ethics Commission provided advice and a partial waiver to Venable, Baetjer and Howard (VBH) in response to the request of the County Executive and the County Attorney to approve the firm's representation of Montgomery County in litigation involving a challenge to the adequacy of funding for education provided by the State of Maryland. Subsequently, VBH requested that additional areas be considered by the Ethics Commission for inclusion in the waiver. Specifically, VBH would like to handle matters involving the following types of representation:

1. Clients who are seeking County approval through the issuance of a permit, license, special exception, variance, or zoning change so long as the County is not a party opponent.
2. Clients before a County quasi-judicial body so long as the County has not been a party opponent before that body. The quasi-judicial bodies identified by VBH are the Board of Appeals, Hearing Examiner, District Council, Historic Preservation Commission, Sign Review Board, Landlord-Tenant Commission, and Human Relations Commission.
3. Clients who have a claim against a member of the County's self-insurance fund so long as the member's budget is not approved or funded by the County.
4. Underwriters for County bonds.

As indicated in the previous waiver, the Ethics Commission relies upon the following sections of the Montgomery County charter and the Ethics Law.

Section 213 of the Charter:
[T]he County Attorney may, with the approval of the Council, temporarily employ special legal counsel to work on problems of an extraordinary nature when the work to be done is of such character or magnitude as to require services in addition to those regularly provided by the County Attorney . . .

Section 411 of the Charter:
No person whose compensation is paid in whole or in part by the County shall (1) act as attorney, agent, broker, or employee for, or . . . receive compensation or anything of value from any person, firm or corporation transacting business of any kind with, or engaging in litigation against the County, or (2) represent or serve any client in any manner if that client's interest is adverse to that of the County, or in conflict with the person's official duties. The Council shall prescribe by law standards and procedures for the implementation of this Section when such waivers are deemed to be in the interest of the County after full public disclosure of all pertinent facts . . .

Section 19A-8(a) of the Ethics Law:

After receiving a written request, the Commission may grant . . . a waiver of prohibitions of . . . Section 411 of the Charter . . . if it finds that:
(1) the best interests of the County would be served by granting the waiver;
(2) the importance to the County of a public employee performing his or her official duties outweighs the actual or potential harm of any conflict of interest; and
(3) granting the waiver will not give a public employee an unfair advantage over other members of the public

Based upon the information provided and the applicable law, the Ethics Commission grants the supplemental waiver request in part and denies it in part. The Commission grants the waiver request concerning the application for permits, licenses, special exceptions, variances and zoning changes, with the condition that the County is not a party to the matter. The Commission believes that there is little likelihood of a conflict of interest in these matters and they do not give VBH an unfair advantage over members of the public. In addition, the Commission grants the waiver request to appear before various quasi-judicial bodies so long as the County is not a party to the same proceedings. In these matters, the County does not appear to be in a position adverse to Mr. Titus' client and VBH would not have an unfair advantage over other members of the public in these proceedings. Moreover, the quasi-judicial nature of the proceedings provides additional protection against a conflict of interest occurring. The Commission further grants the waiver request as it pertains to underwriting bonds, because there is no conflict perceived with this type of work and it does not give VBH an unfair advantage over the members of the public.

An additional waiver must be sought if VBH wishes to participate in an appeal from the decision of a County quasi-judicial body. At the appellate level, the County often intervenes to protect the interests of the County. The participation of the County may be adverse to that of VBH's client, or their respective interests may be aligned. The determination cannot be made, however, until an actual appeal is taken in a particular case. The Ethics Commission also must deny the request for a waiver regarding the handling of self-insurance matters. The County provides representation in all cases filed against the members of the self-insurance fund and, therefore, the potential for an actual conflict of interest to exist is greater for these matters. Both the administrative appeals and the self-insurance cases must be reviewed by the Commission on a case-by-case basis to determine whether any prohibitive conflict of interest exists.

The Commission finds that it is in the best interest of the County to grant the waiver as to the matters delineated in this memorandum. The Commission further finds that the importance of the representation provided by VBH to Montgomery County outweighs the actual or potential harm associated with the handling of the matters designated in this decision. Finally, the approval of the waiver as to these limited issues does not give VBH an unfair advantage over other members of the public. If you have any questions concerning this decision, please do not hesitate to contact the Ethics Commission.

cc: Marc P. Hansen, Senior Assistant County Attorney
Barbara McNally, Executive Secretary, Montgomery County Ethics Commission