Text of Waivers - 1998
MONTGOMERY COUNTY ETHICS COMMISSION
Request by County employee Jane Lawton
February 6, 1998
The commission reviewed a request from the Montgomery County Cable Administrator to waive §19A-11 of the Ethics law to permit the administrator to participate in the cable franchise negotiations between Montgomery County, Maryland, and Prime Cable Corporation.
According to the request:
1. Montgomery County was negotiating a renewal of its cable franchise and a transfer of the franchise from Southwest Bell-Media Ventures to the Carlyle Group, the Sandier Group and Prime Cable Corporation, etc.
2. The County’s Cable Administrator is responsible for the administration of the County’s cable franchise agreement and it is necessary that the administrator participate in the franchise negotiations.
3. The administrator had participated in the County’s other two cable franchise transfers and the knowledge gained from those dealings is valuable to the County’s negotiations.
4. At a meeting of the franchise-negotiating group, a partner in the law firm of Hogan and Hartson joined the group of attorneys working on behalf of the cable provider, Prime Cable Corporation.
5. The estranged spouse of the administrator is a partner in the health practice group of Hogan and Hartson, a firm of over 500 lawyers. The partner representing Prime Cable Corporation is in the firm’s communications group. They do not work on any matters together.
6. The administrator has been separated from the spouse for four years. All separation agreements have been finalized regarding financial interests and obligations of the parties.
7. In 1993, when the County’s cable franchise was transferred from Hauser Communications to Southwest Bell-Media Ventures, Hauser Communications was represented by Hogan and Hartson and the administrator served as Special Assistant to the County Executive. The Ethics Commission granted a waiver to the administrator in order to permit participation in those negotiations.
In pertinent part, the conflict of interest provisions of the Montgomery County Ethics Law prohibit a public employee from participating in any matter that affects, in a manner distinct from its effect on the public generally, any business in which a relative of the public employee has an economic interest unless permitted by a waiver. Montgomery County Code, §19A-ll(a)(1)(C). A public employee also is prohibited from participating in any matter if the public employee knows that any party to that matter is a business in which a relative of the public employee has an economic interest. §19A-11(a)(2)(B).
§19A-8(a) authorizes the Commission, after receiving a written request, to grant a public employee a waiver of the provisions of §19A-11, if it finds that: (I) 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, one member abstaining, found that §19A-ll prohibited the administrator from participating in the cable franchise negotiations without a waiver. However, the Commission also found that the administrator met the waiver requirements of §19A-8(a), i.e., the best interests of the County would be served by granting the waiver, the importance to the County of the administrator performing official duties outweighs the actual or potential harm of any conflict of interest, and granting the waiver will not give the administrator an unfair advantage over other members of the public. Therefore, the Commission granted a waiver from the conflict of interest provisions of §19A-ll.
In particular, the Commission bases its decision upon: (1) the administrator’s unique qualifications to participate in cable franchise matters; (2) the absence of any personal involvement by the administrator’s spouse in cable matters; (3) the "final" nature of the separation arrangements with the estranged spouse; and (4) the attenuated connection between the administrator’s income and any financial benefit that the spouse might receive from Hogan and Hartson’s representation of the cable company.
MONTGOMERY COUNTY ETHICS COMMISSION
Request by County employee Duc Duong
February 27, 1998
The Ethics Commission has reviewed a request from an employee for permission to accept an employment offer with the High Technology Council (HTC) of Maryland after taking an early retirement offer.
The following information was offered in support of the request:
The employee is an Assistant Director and Chief of Business Retention in the Department of Economic Development with primary responsibility for developing and implementing programs aimed at facilitating business expansion and attraction, including the technology business incubator (MCTEC) which the employee helped to initiate in 1992.
As a public employee, responsibilities in connection with the MCTEC initiative were as follows:
1. Developed the business plan to establish MCTEC and requested County funding for it;
2. Negotiated the lease to locate MCTEC at its current address;
3. Drafted the agreement, between the Department of Development and the HTC, under which the HTC manages MCTEC;
4. Served on the MCTEC Advisory Board selecting applicants for the incubator program;
5. Reviewed MCTEC financial reports; and
6. Work on the expansion of MCTEC.
In October 1997, you were solicited by the HTC to the position of Director of Industry Networks and Initiatives, which involves the following duties and responsibilities:
1. Managing the operations and activities of area high technology organizations and networks;
2. Assisting network steering committees in developing positions and agendas for legislative action;
3. Identify programs that networks might wish to undertake; and
4. Transitioning MCTEC into a permanent facility at the Shady Grove Life Sciences Center.
The Montgomery County Ethics Law restricts the employment of former county
employees as follows:
(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;
(2) had official responsibility concerning a contract with the person or business (except a non-discretionary contract with a regulated public utility).
(c) Significant participation means direct 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.
Montgomery County Code, §19A-13.
However, after receiving a written request, the Commission may grant a waiver of the prohibitions of subsection 19A-13 if it finds that:
(1) the waiver is needed to ensure that competent services to the County are timely and available;
(2) falling to grant the waiver may reduce the ability of the County to rule or retain highly qualified public employees; or
(3) the proposed employment is not likely to create an actual conflict of interest.
Montgomery County Code, §19A-8(b).
Clearly, the employee significantly participated in a host of matters relating to HTC, including drafting the agreement between HTC and the Department of Economic Development under which the HTC manages MCTEC. Therefore, the employee would be prohibited from accepting the proposed employment unless the Commission waived the prohibition of §19A-13.
However, because the HTC, although not an agency of county government, is a nonprofit entity created by the County to serve as a partner with high technology businesses in the County and to promote County interests, the Commission concluded that the employee’s proposed employment by HTC was not likely to create an actual conflict of interest. To the contrary, the new position, in many ways, would be so consistent with his former public duties as to be virtually a continuation of that employment.
After careful consideration of the law, as regards this particular case, the Commission granted a waiver of the provisions of §19A-13.
MONTGOMERY COUNTY ETHICS COMMISSION
Requested by former employee Robert Hunnicutt
June 10, 1998
A former public employee sought a follow-up advisory opinion and, if necessary, a waiver in connection with his employment by Columbia Telecommunications Corporation (CTC) to provide services under its cable TV engineering consulting services contract with Montgomery County.
The requestor’s initial request did not indicate that he would be providing services in connection with a matter in which he had significantly participated as a public employee. Therefore, the Commission had previously advised that he did not need a waiver to become an employee of CTC or to provide services to Montgomery County, as long as he did not represent CTC in any matter in which he had significantly participated as a Montgomery County employee. Following receipt of that written advice, he advised the Commission of his need to participate in the full range of consultant services being provided by CTC under its cable T.V. engineering consulting services contract with Montgomery County, some of which were in connection with matters in which he had significantly participated as a Montgomery County employee. Therefore, he requested a waiver of §19A-13(a). The Commission denied the request and, subsequently, he asked the Commission to reconsider the denial. In support of his request for reconsideration, he submitted further documentation and appeared before the Commission.
Section 19A-13(a) of the Ethics Law prohibits a former public employee from accepting employment or assisting 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. However, Section 19A-8(c) of the Ethics Law also gives the Commission the discretion, after receiving a written request, to waive that prohibition if the Commission finds either: (1) that failing to grant the waiver may reduce the ability of the County to hire or retain highly qualified public employees; or (2) the proposed employment is not likely to create an actual conflict of interest.
Conclusion and Decision
After carefully reviewing his request for reconsideration and the documents and statements he has offered in support, the Commission has decided that because the interests of CTC and the County with respect to the specific services he is to provide are virtually identical, his participation is not likely to create an actual conflict of interest. Therefore, exercising its discretion under §19A-8, the Commission hereby grants a waiver of the ten-year ban and permits him to provide services in the performance of the CTC/Montgomery County cable T.V. engineering consulting services contract on those matters on which he previously significantly participated as a Montgomery County employee.