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Montgomery County Ethics Commission
Text of Waivers - 1996

[Waiver 1996-1]

MEMORANDUM
January 22, 1996

TO: Betty Ann Krahnke, Councilmember
Montgomery Council
FROM: Laurie Horvitz, Chair [initialed]
Montgomery County Ethics Commission
RE: Request for Waiver-Council Consideration of Potential Changes in Retirement Insurance Coverage

You have requested a waiver to allow you to participate in upcoming matters involving changes to the retirement insurance coverage for Montgomery County, MCPS, Montgomery College, and MNCPPC. You explained that, due to your two terms on the MNCPPC, you are a member of the retirement plan for MNCPPC and eligible for the $10,000 death benefit. In addition, you are a member of the Elected Officials Retirement Plan for County government.
The Commission agrees that you currently have a conflict for which a waiver is needed if you are to participate in these matters. Section 19A-11(a)(1)(A) of the Montgomery County Code 1994, as amended, provides:

 

 


(a) Prohibitions. 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;
Your participation would affect your economic interest in the retirement plans in a manner distinct from the effect of your participation on the public generally.
The standard governing a waiver of this conflict is as follows:
After receiving a written request, the Commission may grant to a public employee or a class of public employees a waiver of the prohibitions of this Chapter and Sections 11B-51 and 11B-52(a) 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 or class of employees performing official duties outweighs the actual or potential harm of any conflict of interest; and
(3) granting the waiver will not give the public employee or class of employees an unfair economic advantage over other public employees or members of the public.
§19A-8(a) of the Montgomery County Code 1994, as amended.
In this particular situation, the best interests of the County are served by enabling you, a public official with considerable legislative expertise, to participate in such important matters. In this case, it does not serve the County's best interests to require your recusal on matters that significantly affect the County's current and future budgets. Your participation is central to your public responsibilities as a Council member. Moreover, the importance of your participation outweighs the actual or potential harm of any conflict. Since you are only one of the many participants addressing these retirement and budget issues, the potential for harm is extremely limited. The risk of any harm may be further reduced by a public disclosure of your interests in the retirement plans. Furthermore, you have assured the Commission that you will not address these issues from a "personal interest standpoint." Finally, you will not receive an unfair advantage over other members of the public. Of course, the retirement plans focus on specific employees, not the general public. However, it would be extremely difficult for you to gain an advantage that would not apply to other members of the affected retirement plans. The full Council must vote on these issues and will presumably protect against any unfair advantage to particular members.
For these reasons, the Commission grants the waiver you have requested, with the condition that you disclose your membership in the affected retirement plans on the public legislative record. If you have any questions concerning this decision, please feel free to contact the Commission.


[Waiver 1996-2]

January 25, 1996

TO: Bruce Romer
Chief Administrative Officer

Marta B. Perez, Director
Department of Human Resources

FROM: Laurie Horvitz, Chair [initialed]
Montgomery County Ethics Commission

RE: Request for Waiver-Appointment of Collective Bargaining Consultant

You have requested a waiver of Section 411 of the Montgomery County Charter to permit the appointment of Robert Ames, Esquire, of Venable, Baetjer & Howard. Mr. Ames has been selected to provide professional services in connection with collective bargaining negotiations with the Fraternal Order of Police (FOP). In your written submission and your presentation to the Ethics Commission, you have provided the following information.
The County is in the process of renegotiating a labor agreement with the FOP. In the past, the County has utilized employees of the Department of Human Resources (DHR) to handle such negotiations. Due to the County's recent reorganization and reduction in personnel, you determined that an outside consultant should be retained to help frame and present the County's bargaining position. An experienced consultant was deemed necessary due to the significant financial risks associated with the contract. The County, therefore, issued a request for proposals (RFP) to hire a consultant and reviewed proposals from four major law firms. Upon review of the applicants, the County selected Mr. Ames, due to his expertise and his competitive fee. Mr. Ames has special expertise in collective bargaining for the public sector. He is also familiar with police department issues.
Because Mr. Ames practices law with the firm of Venable, Baetjer & Howard, a waiver of Section 411 of the Charter is necessary to permit this consulting relationship.
Section 411 of the Montgomery County Charter provides in part:
No person whose compensation is paid in whole or part by the County shall (1) act as an 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.
Venable, Baetjer & Howard provides legal representation to several clients with interests that are adverse to the County. The law firm has provided a list of all cases in which the provisions of Section 411 may be implicated. That list was provided by Roger Titus, Esquire, approximately one year ago in connection with another waiver request. The Commission granted a waiver to permit Venable, Baetjer & Howard's representation in these matters. The information on the list of Section 411 matters has been updated as part of Mr. Ames' request. Venable, Baetjer & Howard has verified that the list includes all relevant cases that are being handled by the D.C. office (where Mr. Ames works).
Waivers of Section 411 are governed by Section 19A-8(a) of the Montgomery County Ethics Law. That Section of the Ethics Law provides:
After receiving a written request, the Commission may grant . . . a waiver 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.
The Commission finds that the waiver criteria have been met and the requested waiver may be granted.
First, the Commission finds that the hiring of Mr. Ames serves the best interests of the County. He is uniquely qualified to provide the consulting services. In your presentation to the Commission, you explained that none of the other applicants had Mr. Ames' unique combination of qualifications. In particular, you emphasized his experience with both police negotiations and public sector labor contracts.
In addition, the importance of Mr. Ames performing his duties under this County contract outweighs the actual or potential harm of any conflict of interest. Mr. Ames has not disclosed any matters that he is personally involved in that raise Section 411 issues. None of the cases identified by Mr. Titus involve the representation of police unions, nor do they involve the representation of unions that are negotiating with the County. Instead, the listed cases involve matters that are not related to the duties that Mr. Ames will be performing for the County. In fact, most of the cases are not being handled by the D.C. office of Venable, Baetjer & Howard. Finally, Mr. Ames will be providing consulting services, not legal services. In light of these facts, the actual or potential harm is outweighed by the importance to the County of obtaining Mr. Ames' services. Finally, granting the waiver will not provide Mr. Ames with an unfair advantage over other members of the public. An RFP was issued and several law firms responded. DHR reviewed these responses and negotiated with several of the firms. Mr. Ames was selected after this competitive procurement process. In light of these facts, he will not receive any unfair advantage.
Based upon the foregoing, the Commission hereby grants the requested waiver. If the facts should change, please provide the additional information to the Commission. Venable, Baetjer & Howard must immediately report any new cases involving potential violations of Section 411. If you have any questions concerning this decision, please do not hesitate to contact the Commission.


[Waiver 1996-3]

March 12, 1996

James J. Cagley

Re: Request for Advisory Opinion and/or Waiver

Dear Mr. Cagley:
You have asked for advice and, if needed, a waiver regarding the scope of your future employment upon leaving County service and have provided the following information. You recently terminated your employment as an assistant county attorney to return to private practice. During your County tenure, you handled primarily workers' compensation matters and personal injury litigation on behalf of the County. During recent years, you had responsibility for overseeing workers' compensation cases that were handled by outside attorneys pursuant to a contract with the County. You described your direct involvement in those matters as remote and extremely limited. In looking for private employment, you would like to use your expertise.
`As you are aware, the Ethics Law prohibits certain activities by former public employees. Specifically, Section 19A-13 of the Ethics Law provides:

(a) A former public employee must not accept employment or assist any party, other than a County agency, in a case, contract, or other specific matter for 10 years after the last date the employee significantly participated in the matter as a public employee.
(b) For one year after the effective date of termination from County employment, a former public employee must not enter into any employment understanding or arrangement (express, implied, or tacit) with any person or business that contracts with a County agency if the public employee:
(1) significantly participated in regulating the person or business; or
(2) had official responsibility concerning a contract with the person or business (except a non-discretionary contract with a regulated public utility).
The law further describes "significant participation" as:
[D]irect administrative or operating authority to approve, disapprove, or otherwise decide government action with respect to a specific matter, whether the authority is intermediate or final, exercisable alone or with others, and exercised personally or through subordinates. It ordinarily does not include program or legislative oversight, or budget preparation, review, or adoption.
Section 19A-13(c) of the Montgomery County Ethics Law. In light of these provisions, you have presented three specific questions regarding potential future employment:
1. Whether you may accept employment with or assist any party regarding a workers' compensation claim with which you were directly involved as a County employee, if your future involvement is limited to a different phase in the claim process.
2. Whether you may obtain a waiver of the prohibition against working for a firm or assisting a party regarding a claim on which you were listed as an attorney of record but you did not personally handle the matter.
3. Whether you may work for one of the law firms that provide services to the County based upon a contract to handle workers' compensation claims on behalf of the County.
In relation to each issue, you have requested a waiver of any prohibitions of §19A-13 that would prevent these activities. To receive a waiver of any provisions of §19A-13, the Commission must find 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(b) of the Montgomery County Ethics Law. The Commission has reviewed your request in accordance with these requirements.
Phase of Workers' Compensation Claim
Your first case involves workers' compensation claims against the County in matters that were handled by the Office of the County Attorney or the contract attorneys during your County employment. You distinguish between the phases of a particular claim. You seek permission to work as a private attorney on a different phase of the same claim that you personally handled during your County employment.
The Commission finds that this activity is prohibited by Section 19A-13(a) of the Ethics Law because your County involvement involved significant participation. The Commission further finds that there is no basis for a waiver of this prohibition. The waiver is not necessary to ensure competent services to the County, nor does the failure to grant the waiver affect the County's ability to hire or retain qualified employees. Moreover, the Commission finds that there is a strong possibility of an actual conflict of interest, because you were privy to information that you might not have had access to otherwise. The Commission must deny your request for a waiver. Therefore, you must not handle any phase of a matter in which you significantly participated during your County employment.
Attorney of Record Only-Representation of Party or Employment with Firm
You have indicated that you were the attorney of record for mailing purposes only in many cases that were handled by private law firms under contract to the County. You maintain that you had no specific knowledge of or involvement in the facts or proceedings of those cases. For this reason, you seek permission to (1) represent parties regarding claims on which you were previously listed as an attorney of record for mailing purposes only; and (2) work for a firm that handles claims on which you were an attorney of record.
Based upon the information provided, the Commission is unable to determine whether your participation as an attorney of record would constitute significant participation under the Ethics Law. Generally, an attorney of record is presumed to have knowledge of the matter, regardless of whether he actually does. Without greater detail, the Commission must deny the request for a waiver to handle particular cases on which you previously were an attorney of record. If additional information becomes available, however, you may submit specific situations to the Commission for a case-by-case review.
The Commission finds that a waiver may be granted to permit you to work for a firm that you previously opposed as the attorney of record. However, the Commission imposes three conditions upon such approval. First, you may not handle any workers' compensation claims involving Montgomery County employees. Second, you must notify the employer of the first condition. Third, the employer must notify the Commission that it has been informed of the condition and will take precautions to prevent your involvement in such cases. With these conditions, the Commission finds that the proposed employment is not likely to create an actual conflict of interest.
Contract Attorneys
Your final question involves whether you may be employed by one of the law firms which handle workers' compensation claims on behalf of the County. The Commission finds that this employment relationship would create no conflict of interest because the firms are representing the County's interests. Therefore, the Commission grants a waiver pursuant to Section 19A-8(b)(3) of the Montgomery County Ethics Law.
If you have any questions regarding this decision, please do not hesitate to contact the Commission.

Sincerely,
[signed]
Laurie B. Horvitz, Chair
Montgomery County Ethics Commission

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


[Waiver 1996-4]

March 12, 1996

TO: Martha Rosacker, Substance Abuse Prevention Coordinator
Department of Health and Human Services
FROM: Laurie Horvitz, Chair [initialed]
Montgomery County Ethics Commission
RE: Request for Advisory Opinion and/or Waiver

You have requested advice and, if necessary, a waiver of the Ethics Law regarding a public employee under your supervision who wishes to accept a position with a County contractor. The employee would resign from public service in order to accept this private position. The employee has been responsible for a County program addressing the community's need for substance abuse prevention. The program was created by the County with federal grant funds and has evolved into an independent non-profit corporation. When the organization became an independent entity, the County began contracting with the organization to receive services that had been performed previously by the County. The organization now seeks to hire the County employee as its executive director. The affected County department supports this proposed employment because the employee would be able to serve an important community function. Although the organization receives significant funding from the County, the corporation also receives funding from other sources.
The employee must obtain a waiver because he seeks to work for a corporation that was created with his direct participation during his County employment and because the non-profit organization currently contracts with his agency. Section 19A-13 of the Montgomery County Ethics Law provides, in part:
(a) A former public employee must not accept employment or assist any party, other than a County agency, in a case, contract, or other specific matter for 10 years after the last date the employee significantly participated in the matter as a public employee.
(b) For one year after the effective date of termination from County employment, a former public employee must not enter into any employment understanding or arrangement (express, implied, or tacit) with any person or business that contracts with a County agency if the public employee:
(1) significantly participated in regulating the person or business; or
(2) had official responsibility concerning a contract with the person or business (except a non-discretionary contract with a regulated public utility).
The prohibitions of this section may be waived, however, in the event that one of the following criteria is established:
(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(b) of the Montgomery County Ethics Law.
Based upon the written information provided, and the additional explanation that you and your employee provided at the February meeting of the Ethics Commission, the Commission finds that it may grant the waiver based upon two grounds. First, the Commission finds that the waiver is needed to ensure that competent services to the County are timely and available. You indicated that the continued viability of the independent organization is dependent upon the skillful leadership of its staff and Board. The expertise of the public employee would vastly improve the organization's chances of survival and success. Because this program is so important to the County and to the community, you advocated a waiver. The Commission finds this argument persuasive.
Second, the Commission finds that there is little or no likelihood of an actual conflict resulting from this employment. The organization will not be completely supported by County funds and the County will not be overseeing the day-to-day operations of the organization. To minimize the likelihood of any conflict, however, the Commission is imposing a condition upon the public employee's participation in certain matters. He must not participate in the organization's requests for funding from the County for one year following his departure from County employment. This does not preclude his participation in fundraising contacts with non-County groups and individuals.
Therefore, the Commission grants a waiver based upon Section 19A-8(b)(1) and (b)(3). If you have any questions concerning this decision, please do not hesitate to contact the Ethics Commission.

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


[Waiver 1996-5]

May 31, 1996

Honorable Derick P. Berlage


Dear Councilmember Berlage:

The Ethics Commission has considered your letters of March 15, 1996 and May 11, 1996 in which you request either a waiver of the prohibitions of Section 411 of the Montgomery County Charter or our advice that those prohibitions do not apply to your activities as a private, part-time attorney. In your March letter, you discuss your plans to develop a contractual relationship with attorneys who may be engaged in litigation against the County. You would not perform any work for clients engaged in litigation against the County but would be working on a contractual basis with attorneys engaged in such litigation. In your May letter, you have also sought advice regarding whether you may represent a client who works for an organi-zation that receives some funding from the County. You would not be represent-ing the client's employer. Instead, you would be representing the individual in a personal injury matter that has no connection with Montgomery County Government or the client's employer.

Request to Serve as a Contract Attorney

As you know, Section 411 of the Montgomery County Charter provides that:
No person whose compensation is paid in whole or in part by the County shall (1) act as an attorney . . . or receive compensation or anything of value from any person, firm or corporation . . . engaging in litigation against the County, or any instrumentality thereof . . .
Since you will receive compensation from law firms that are engaging in litigation against the County, a waiver of Section 411 is advisable. A broad interpretation of Section 411 would require a waiver. Your contractual relation-ship with these law firms creates an indirect connection between your legal practice and the representation by those firms of clients engaged in litigation against the County.
Previously, the Commission has granted waivers to attorneys who were not personally involved in litigation against the County but who worked for law firms that were suing the County. Your relationship with such litigation will be even more attenuated because you will not be an employee of the law firms. As a result, you will presumably be able to control which cases you handle and will be able to distance yourself from any actions involving the County. Furthermore you will not be a "shareholder" who receives a percentage of the revenues associated with litigation against the County. Instead, your income will be directly related to your cases.
The Commission has concluded that a waiver is clearly warranted in your case. The applicable waiver standard is set forth in Article 19A-8(a). The Commission found that all three requirements were satisfied in this case. The best interests of the County are served by the granting of your waiver request. The County benefits from the retention of qualified and experienced councilmembers who decide to supplement their government salaries or to expand their professional experiences. The County also benefits from councilmembers who possess legal training and skills. Denial of the waiver request would impair the ability of the County to attract and retain such qualified public servants. The importance to the County of your services as a Councilmember clearly outweighs the potential harm of any conflict of interest. There is little or no likelihood of any conflict because you will not be personally involved in any litigation against the County. Furthermore, the granting of the waiver will not give you an unfair advantage over other members of the public. In your request, you do not seek to represent clients before the Council or other County agencies. Such activities would require further consideration.
In light of the facts presented in your letters, the Commission unani-mously concluded that a waiver was appropriate. You may work as a contract attorney for law firms that represent clients in litigation against the County. You will not need any additional waivers in order to affiliate with such firms unless you wish to participate directly in a lawsuit against the County.

Request to Represent Director of Not-For-Profit

The Commission has also reviewed the request in your May letter. Section 411 is relevant to that request as well because the not-for-profit organiza-tion transacts business with the County. Section 411 prohibits an attorney from receiving compensation "from a person, firm or corporation transacting business of any kind with . . . the County." Recently, this provision in the Charter has been the subject of discussion due to its considerable breadth. To date, the Commission has interpreted the phrase literally and, where appropriate, granted waivers. To the extent that Section 411 applies to your representation of the director of the not-for-profit organization, the Commission has decided to issue a waiver authorizing such representation.
The Commission found that all three criteria for a waiver have been satisfied. For the reasons previously stated, the best interests of the County are served by granting of the waiver. Significantly, you would be representing the director of the organization, not the organization that actually contracts with the County. Furthermore, the litigation does not involve the County or the not-for-profit organization. In light of these facts, there is little potential harm of any conflict of interest. Finally, granting the waiver will not give you any unfair advantage over members of the public.
The Commission is also granting a waiver of Article 19A-12(b) which prohibits a public employee from being employed by a business that is regulated by or contracts with the County agency with which the public employee is affiliated. Since the not-for-profit contracts with the County, it is prudent for you to obtain a waiver of this provision as well. Article 19A-8(b) defines the appropriate standard. In this case, subpart (3) has been met because the proposed employment is not likely to create an actual conflict of interest.
Your request does not require the Commission to address Article 19A-11 regarding conflicts of interest. However, the Commission would recommend that you disclose your legal representation of the director if the County Council is confronted with funding or other issues directly affecting the not-for-profit
I hope this response addresses all of your concerns. The Commission refrains from granting blanket waivers because each factual situation presents unique considerations. At this time, the Commission is not prepared to issue an advisory opinion that offers more general advice regarding additional categories of permissible conduct. If you have any additional questions, please feel free to contact the Commission. Your sensitivity to these issues is greatly appreciated.

Sincerely,
[signed]
Laurie B. Horvitz
Chair


[Waiver 1996-6]

MEMORANDUM

TO: Charles W. Thompson, Jr.
County Attorney
FROM: Laurie B. Horvitz, Chair [initialed]
Montgomery County Ethics Commission
RE: Request for Waiver-Appointment of Outside Counsel
DATE: July 9, 1996

The Ethics Commission has received your memorandum, dated June 18, 1996, in which you request a waiver of Section 411 of the Montgomery County Charter. Your request involves the appointment of Arent, Fox, Kitner, Plotkin & Kahn ("Arent, Fox") to represent the County in a consumer protection matter.
Your memorandum explains that the Office of the County Attorney placed ads in The Journal and The Daily Record in April of 1996 seeking law firms capable of handling a major consumer affairs case for the County. Six law firms submitted proposals. A panel was created to evaluate the proposals. The panel included a representative from the Office of Consumer Affairs, two attorneys from private practice, and two attorneys from the County Attorney's Office. Arent, Fox was selected because of the firm's expertise and proposed fee arrangement. Arent Fox includes an attorney, Mr. Alan Malasky, who possesses extensive trial experience and considerable expertise in consumer protection law. Mr. Malasky will be performing and directing the legal services for the County. The law firm will represent the County on a contingency fee basis.
A waiver of Section 411 is necessary in this case because Arent, Fox also represents clients who may be involved in litigation against the County or who may possess interests that are adverse to the County. Section 411 provides in part:
No person whose compensation is paid in whole or part by the County shall (1) act as an attorney . . . 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 any instrumentality thereof; (2) represent or serve any client in any manner if that client's interest is adverse to that of the County . . . .
Arent, Fox has identified six categories of legal representation that may each require a waiver of Section 411. The law firm wishes to represent: (1) clients who have or are seeking approval of industrial revenue bonds approved by the County or the Housing Opportunities Commission; (2) IDI Companies, an entity that has obtained a loan from the County in connection with the development of the Ambassador Hotel project for low-moderate income housing; (3) clients who seek a waiver of the County's right of first refusal to purchase multi-unit rental facilities or a waiver of the County's moderately priced dwelling unit requirements; (4) clients involved in real estate transactions who are seeking the appropriate level of transfer tax that should be imposed on the transaction by the Department of Finance; (5) 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; and (6) clients before quasi-judicial bodies so long as the County has not been in that matter a party opponent before that body.
Section 19A-8(a) of the Montgomery County Ethics Code defines the appropriate waiver standard. A waiver may be granted when the Ethics 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.
At its last meeting, the Ethics Commission decided to issue a waiver to permit the appointment of Arent, Fox. The Commission found that the best interests of the County would be served by granting the waiver. Arent, Fox was selected pursuant to a competitive process. A panel of public and private individuals chose Arent, Fox over five other applicants. In the view of the County Attorney, Arent, Fox would provide the best legal representation to the County in this matter. In addition, the County evaluated the proposed fee arrangement and determined that it was acceptable. In light of these facts, the best interests of the County would be served by granting the waiver.
The Commission also found that the importance to the County of hiring Arent, Fox outweighs the actual or potential harm of any conflict of interest. Significantly, none of the law firm's six potential conflicts involves consumer protection matters. Furthermore, many of the requested areas of representation do not require Arent, Fox to represent interests that are truly adverse to the County. To further minimize the potential of any conflict, the Commission is imposing two restrictions on the law firm. First, the attorneys at Arent, Fox who will be providing legal representation to the County in the consumer protection case may not participate in the law firm's representation of clients in transfer tax matters (item 4 above). Second, Arent, Fox may only represent clients before the following quasi-judicial bodies of the County: the Board of Appeals, the Hearing Examiner, the District Council, the Historic Preservation Commission, and the Sign Review Board. An additional waiver would be required in order to represent clients before other quasi-judicial bodies.
Third, the Commission found that the granting of the waiver would not give Arent, Fox an unfair advantage over other members of the public.
In light of these facts and considerations, the Commission granted the waiver request. Please let the Commission know if you need any additional guidance.

cc: Alan R. Malasky, Esquire
Arent, Fox, Kitner, Plotkin & Kahn


[Waiver 1996-7]

August 2, 1996

TO: Claire F. Funkhouser, Chair
Commission on People with Disabilities
FROM: Laurie Horvitz, Chair
Montgomery County Ethics Commission
Re: Request for Waiver

Your request for a waiver has been reviewed by the Montgomery County Ethics Commission. You have provided the following information.
You are a member and Chair of the Commission on People with Disabilities. You serve as an organizational representative for the Montgomery County Autism Society. You are deeply familiar with the topics confronting the Commission because you are the parent of an autistic child.
As a member of the Commission on People with Disabilities, you are subject to the Montgomery County Ethics Law, even though you receive no compensation for your services. See Article 19A-4(m) of the Montgomery County Code. You need a waiver of Section 411 of the County Charter and of 11B-52 of the County Code because you also have a personal services contract with the County Department of Health and Human Services. Under the contract, you work as a staff person to the Collaboration Council for Children, Youth and Families. According to the information provided, you have no responsibility over the County's programs or finances.
The Commission has determined that a waiver may be granted because you have satisfied the waiver requirements of Section 19A-8(a) of the Montgomery County Ethics Law. The Commission concluded that you have met the following three criteria:
(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.
Section 19A-8(a) of the Montgomery County Ethics Law.
The best interests of the County will be served by granting your waiver because the County can retain your expertise on the Commission and gain the additional benefit of your assistance with the Collaboration Council. The Director of the Department of Health and Human Services, Charles Short, has expressed support for the waiver.
The second criterion is also satisfied. The performance of your duties on the Commission will remain separate from those with the Collaboration Council. Mr. Short has stated that your two roles with the County are not likely to present any conflict. As you have explained, you will recuse yourself from matters that may create a conflict.
Finally, granting the waiver will not provide you with an unfair advantage over other members of the public. Both of these positions relate to your extensive professional and personal experiences. In addition, you will not be using one position to advance the interests of the other position. Therefore, the third criterion has been satisfied.
If you have any questions regarding this waiver, please do not hesitate to contact the Commission.

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


[Waiver 1996-8]

MEMORANDUM

TO: Douglas M. Duncan
County Executive
FROM: Laurie B. Horvitz, Chair [initialed]
Montgomery County Ethics Commission
SUBJECT: Request for Advisory Opinion/Waiver
DATE: August 8, 1996

The Montgomery County Ethics Commission has reviewed a June 13, 1996 memorandum from Bruce Romer, Chief Administrative Officer, requesting an advisory opinion on your behalf.
In that memorandum, Mr. Romer described discussions between the Ethics Commission and County Attorney Thompson regarding your participation in matters relating to a proposed user tax for cellular phones. At the Commission's meeting on May 21, 1996, Mr. Thompson explained your desire to veto legislation proposing the user tax. The issue was presented to the Commission because you and certain family members own stock in various corporations which are involved in the telecommunications business. The stock holdings are modest in value but exceed the $1,000 threshold imposed by the Ethics Law. See Section 19A-11(c). Mr. Thompson shared his opinion that Section 19A-11(b)(1) of the Ethics Law was applicable. That section authorizes participation by a public employee in certain circumstances where the employee would otherwise be disqualified because of a conflict of interest. The section permits participation "if the disqualified public employee is required by law to act or is the only person authorized to act . . . ." Although the Commission did not issue a formal opinion, it expressed support for the County Attorney's interpretation of Section 19A-11(b)(1). The Commission's advice was rendered verbally because Mr. Thompson indicated that your actions were imminent.
According to Mr. Romer's memorandum, you are presently seeking an opinion and waiver, if necessary, to permit your participation in discussions and decisions affecting the telecommunications industry. Section 19A-11(a) governs your situation because the stocks that you and your family members own constitute an "economic interest" under the Ethics Law. Your participation in decisions regarding the telecommunications industry will affect your economic interests in a manner distinct from the effect on the public generally. See Section 19A-11(a)(1) of the Ethics Law. In more limited circumstances, you may also require a waiver of Section 19A-11(a)(2). For example, that section would apply when AT&T is a party to matters under consideration.
In a narrow set of circumstances, Section 19A-11(b)(1) would permit your participation without a waiver. As the County Executive, you may be the only person authorized to act on certain matters. However, the Commission would need to examine each circumstance individually in order to determine the applicability of that section.
The Commission has decided to waive the provisions of Section 19A-11(a) so that you may participate in the formulation of policies that affect the telecommunications industry generally. The Ethics Law sets forth a three-part waiver standard. In order to grant a waiver, Section 19A-8(a) requires the Commission to find:
(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.
Each of these criteria has been satisfied.
First, the best interests of the County clearly support the County Executive's participation in telecommunications matters. Your role in these matters is extremely important and cannot be duplicated by other public employees.
Second, the importance of your participation outweighs the actual or potential harm of any conflict of interest. Significantly, you have only asked to participate in matters that have an effect upon the telecommunications industry as a whole. Your request does not encompass circumstances where your participation would have a direct financial impact upon AT&T or Bell Atlantic. Because your involvement will be limited to matters that "tangentially affect individual companies," there is little potential harm of any conflict. If you wish to participate in matters directly affecting AT&T or Bell Atlantic, and not the telecommunications industry generally, you must obtain an additional waiver.
Third, granting the waiver will not give you an unfair advantage over other members of the public. Notably, AT&T and Bell Atlantic are large companies which do not generate most of their revenues within Montgomery County. As a consequence, the policies and practices of Montgomery County are not likely to impact the value of AT&T or Bell Atlantic stocks. Therefore, you participation in the County's telecommunications debate will not materially affect the value of your stock or provide you with an unfair advantage.
Based upon these conclusions, the Commission has granted you a waiver to participate in the formulation of the County's general telecommunications policies. In the future, please send your requests for advisory opinions and waivers directly to the Commission. Thank you for your sensitivity to these ethics concerns.

cc: Bruce Romer


[Waiver 1996-9]

August 21, 1996

William Clark, Contract Manager
Department of Health and Human Services


Re: Request for Ethics Opinion

Dear Mr. Clark:
The Montgomery County Ethics Commission has considered your request for a waiver. In your memorandum, dated June 6, 1996, you indicate that your wife, Rosemary Clark, would like to return to the Department of Health and Human Services in a part-time contractual capacity. Your wife previously worked for the Department as a County employee.
You are contract manager for the Department and recognize that there is a potential conflict of interest associated with your wife entering contracts with the Department. Several sections of the Ethics Code apply to this situation. For example, Section 19A-11 addresses the participation of public employees in matters affecting a relative's business. In addition, Section 19A-14(d) prohibits a public employee from hiring or advocating the advancement of a relative to a position that is under the jurisdiction or control of the public employee.
The Commission has decided to grant a waiver of the Ethics Code to permit your wife's employment with the Department. The waiver is based upon your commitment to ensure that the following will occur:
1. Staff on the contract management team will maintain the integrity of the procurement process to ensure that no one receives an unfair advantage.
2. You will recuse yourself from involvement in any initiative to which your wife may wish to respond.
3. You will not have any involvement whatsoever in any resulting contract that she may receive.
4. You will have no monitoring responsibilities or fiscal oversight for any contract resulting from a successful solicitation on her behalf.
Thus, conditions three and four will preclude you from supervising your wife. In addition, you must provide a copy of this letter to Mr. Charles Short and he must send a response to the Commission before your wife may engage in any employment with the Department. Therein, Mr. Short must provide assurances that the Department will comply with these conditions.
With these conditions in place, the Commission concludes that your wife may work for the Department. The Commission finds that the waiver requirements of Section 19A-8 have been satisfied. The best interests of the County would be served by allowing a former County employee to bid on County contracts. The conditions set forth in this letter virtually eliminate the potential harm of any conflict and prevent you or your wife from receiving any unfair advantage over other members of the public.
Thank you for consulting with the Commission. If you have any questions, please do not hesitate to contact us.

Very Truly Yours.
[signed]
Laurie Horvitz
Montgomery County Ethics Commission


[Waiver 1996-10]

August 21, 1996

Ms. Joan Planell
Senior Legislative Analyst
Montgomery County Council


Re: Request for Advisory Opinion/Waiver


Dear Ms. Planell:

The Montgomery County Ethics Commission has considered your memorandum of May 7, 1996, wherein you ask for guidance regarding your husband's contractual work with County departments and agencies. You are governed by the County's ethics laws because you are a Senior Legislative Analyst with the Montgomery County Council. According to your memorandum, your principal responsibilities relate to the Department of Health and Human Services and the capital budget for the Montgomery County Public Schools. Your work involves analyzing budgets and programs and making recommendations for Council action.
Your request relates to the professional activities of your husband. He has been asked to provide mental health training and consultation for County agencies. More specifically, he has been asked to perform services for the Montgomery County Public Schools and for the Commission on Aging, which is an adjunct of the Department of Health and Human Services.
Section 19A-14(d) prohibits a public employee from hiring or advocating the advancement of a relative to a position that is under the jurisdiction or control of the public employee. Based upon the information provided in you memorandum, the Commission does not believe that Section 19A-14 is currently an issue in your case. You do not need a waiver of this section unless your husband will be employed under your jurisdiction or control.
Section 19A-11 of the Ethics Code addresses the participation of public employees in matters affecting a relative's business. The Commission has decided to waive this provision so that you may fully perform your responsibilities as a Legislative Analyst. The waiver is premised upon two conditions. First, you may not recommend your husband's services to any of the agencies with which you work. Second, you must disclose your husband's contracts to your superiors when you are reviewing budgets and programs of the agencies with which your husband is affiliated as a contractor. For example, you should not participate in the review of the Department of Health and Human Services budget documents without disclosing the facts relating to your husband's relationship with the Commission on Aging or other agencies of the Department of Health and Human Services.
The Commission finds that the waiver requirements have been satisfied in this case. See Article 19A-8. The best interests of the County are served by granting the waiver. The waiver will allow you to perform your important functions as a Senior Legislative Analyst. The potential harm of any conflict is extremely small. The Commission's two conditions will further reduce the likelihood of any harm. Notably, your husband's contracts are relatively short-term and do not involve large sums of money. Therefore, his contracts are not likely to present significant budgetary or programming concerns for the Council. Therefore, the Commission finds that the importance to the County of your performing your official duties outweighs the potential harm of any conflict of interest. Finally, granting the waiver will not provide you with an unfair advantage over other members of the public. Because you will not be allowed to recommend your husband for employment, he presumably will be hired on his own merits.
I apologize for the Commission's slow response to your memorandum. If you have any questions, please do not hesitate to contact the Commission.

Very truly yours,
[signed]
Laurie B. Horvitz, Chair
Montgomery County Ethics Commission


[Waiver 1996-11]

September 17, 1996


Jennie Gosche, LSCW-C


Re: Request for Advisory Opinion/Waiver

Dear Ms. Gosche:

You have requested advice from the Ethics Commission regarding your interest in applying for a contract with the County while you are a County employee. You have provided the following information.

Currently, you are a full-time merit employee with the Montgomery County Department of Health and Human Services (HHS), in the Office of Child and Adolescent Community Support Services. You wish to apply for a contract position with the Abused Persons Program in HHS and would resign from your current position if you were awarded the contract. For purposes of this advice, the Commission is assuming that your current duties do not require you to prepare the requests for proposals (RFPs) or to review any applications for the contract. Also, it is assumed that all applicants will be given the same information upon which to base their applications.

As you may know, a public employee generally is prohibited from submitting a bid for a County contract with the employee's agency. Section 19A-12(b)(1)(B) of the Montgomery County Code 1994, as amended, prohibits an employee from negotiating or contracting with his own County agency. The exceptions to this section do not apply to your current situation. However, the prohibition may be waived upon a finding by the Ethics Commission that the following criteria have been met:

(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(b) of the Montgomery County Code 1994, as amended.

Based upon the information described above, the Ethics Commission finds that the criteria have been met and that a waiver may be granted. The proposed employment is not likely to create an actual conflict of interest. You will not be involved in preparing or reviewing the RFP or applications. Furthermore, all competitors will have access to the same information. Finally, you will resign from County employment upon receiving the award. The Ethics Commission, therefore, grants you a waiver to apply for the contract with the following conditions:

(1) You may not participate in the evaluation of any of the applications under the RFP in your capacity as a public employee.
(2) You may not use any confidential information from your public employment to assist you in applying for or obtaining the award of the contract.
(3) You must resign from your public employment if the contract is awarded to you.

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

Sincerely,
[signed]
Laurie Horvitz, Chair

 

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