Skip Navigation
Montgomery County Ethics Commission
Text of Waivers - 1994

[Waiver 1994-1]

MEMORANDUM

April 6, 1994

TO: Pete Holt, Director
DAVMHS
FROM: Barbara McNally, Executive Secretary
Ethics Commission
SUBJECT: Appointment of Debra Weintraub to AODAAC

The Ethics Commission has received and reviewed your request for permission for Debra Weintraub to serve as a voting member of the Alcohol and Other Drug Abuse Advisory Council (AODAAC).
Ms. Weintraub is a pharmacy manager at Suburban Hospital which currently holds a contract with the County's Department of Addiction, Victim and Mental Health Services (DAVMHS).

 
Section 19A-11(a) provides that, unless permitted by a waiver, a public employee must not participate in any matter that affects a 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 Ms. Weintraub's participation on AODAAC would violate Section 11B-52 and, to the extent Ms. Weintraub participated in formulating AODAAC recommendations concerning the Driving While Intoxicated Treatment Services Program, her 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 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 or class of employees an unfair economic 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 pharmacist. Ms. Weintraub, as you indicated in your request, is the only candidate who applied to fill this slot which has been vacant since June 1993.
2. The Director of DAVMHS believes that Ms. Weintraub's expertise would greatly benefit the AODAAC.
3. The Commission believes that if Ms. Weintraub discloses her 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, the members of the AODAAC, the potential for a conflict of interest or unfair advantage to Ms. Weintraub will be minimal. Under these circumstances, the Ethics Commission believes that the importance to the County of Ms. Weintraub sharing her expertise with AODAAC outweighs any potential conflict of interest and that there will be no unfair advantage given to Ms. Weintraub over other members of the public.

The Ethics Commission grants a waiver to allow Ms. Weintraub to serve as a member of AODAAC subject to the following conditions: Ms. Weintraub must disclose, in writing, to the County Executive and the County Council, her employment relationship with Suburban Hospital and the nature of the contract between the County and her employer. If appointed, Ms. Weintraub must also inform, in writing, the members of AODAAC of her 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. In addition, Ms. Weintraub must refrain from participating in any AODAAC discussions or votes on any contracts with Suburban Hospital.

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

BMM:dw

cc: Kelly Pelz, Special Assistant to the County Executive


[Waiver 1994-2]

MEMORANDUM

June 7, 1994

TO: Willard Walton, Jr., Director
Office of Procurement
FROM: Barbara McNally, Executive Secretary
Ethics Commission
SUBJECT: Fire/Rescue Services Procurement

At its March, 1994 meeting, the Ethics Commission reviewed your request for advice concerning the procurement of various weight and exercise equipment for the Wheaton Volunteer Rescue Squad 2. This procurement request was brought to the Commission because it concerned a bid proposal made by Dale Johnson, a career firefighter assigned to the Kensington station, who holds an outside job with the Barbell Barn, a vendor and interested bidder.

Section 19A-11(a)2(A) of the Montgomery County Ethics Law states:

"Unless permitted by a waiver, a public employee must not participate in:
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;"

This provision prohibits Mr. Johnson from participating in this procurement without a wavier.

In its review of this matter, the Commission was informed that the procurement was to be handled through a competitive bidding process which would allow other vendors to participate in the offering. Under Section 19A-8, Commission is authorized to grant a waiver of this prohibition if all of the conditions for granting a waiver are met. These conditions are:

(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 consideration of these provisions, the Commission determined that allowing Mr. Johnson to bid with other vendors on this procurement would not give him an unfair advantage and would be serving the best interests of the county by promoting more competition to obtain the lowest price.

We trust that this correspondence is helpful and welcome any questions you may have regarding this matter.


[Waiver 1994-3]


MEMORANDUM

July 12, 1994

TO: Betty Ann Krahnke, Councilmember
FROM: Jay L. Cohen, Chairman [signed]
Montgomery County Ethics Commission
SUBJECT: Waiver Request

The Montgomery County Ethics Commission has received and reviewed your request for a waiver under Section 19A-8 of the Ethics Law. You have provided the following information in support of your request.

In your memorandum, dated April 11, 1994, you indicated that you and your husband currently hold 2200 shares of stock in Federal Realty Investment Trust. This trust owns and manages 48 shopping centers on the East Coast with six shopping centers in Montgomery County.

Soon, the County Council will be taking action on the Bethesda Sector Plan and Zoning Text Amendment 93023 which will affect two properties owned and managed by Federal Realty Investment Trust. You are requesting a waiver so that you may participate in any decisions the Council takes regarding these matters.

Section 19A-11 states:

"Unless permitted by a waiver, a public employee may 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."

For purposes of this opinion, the Commission assumes that the value of the shares you hold exceeds $1,000. As a result, your ownership of shares in Federal Realty Investment Trust constitute an economic interest as defined under Section 19A-11(c) of the Ethics Law.

Section 19A-8(a) the Ethics law permits the Ethics Commission to grant a waiver to a public employee if it 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 your request, the Commission determined that all of these criteria were met and granted the waiver with the following condition:

You must disclose your ownership of Federal Realty Investment Trust stock at the commencement of discussions on the Bethesda Sector Plan and Zoning Text Amendment 93023 and prior to any votes that are taken by the Council on these matters.

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

BMM:dw


[Waiver 1994-4]

MEMORANDUM

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

 

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

 

» Return to Listing of Advisory Opinions & Waivers