Text of Waivers - 2000
MONTGOMERY COUNTY ETHICS COMMISSION
OPINION & WAIVER
The Director of the Department of Health and Human Services October 9, 2000, has requested an opinion and waiver, if necessary, to permit his son to participate in the County’s Youth Conservation Corps Program, which is administered by the Department of Health and Human Services.
According to the Director:
Corps members are classified as Conservation Corps Trainees. They are temporary, non-merit employees and are paid minimum wages (Grade S-I) with no benefits. On a quarterly basis, each trainee is evaluated on a number of work and job related criteria and awarded raises that range from five cents to a quarter per hour depending on their evaluation scores. The evaluations are conducted and scored by the Conservation Corps supervisors. [The Director] exercise[s] no influence over those evaluations and there are two other levels of supervision between the Corps supervisors and [the Director] . . . .
Appointments of Conservation Corps trainees to the program are done on a non-competitive basis and are contingent solely on the trainee’s interest and commitment to the active participation in the training and education services available in the program. No one is denied the opportunity to join the Conservation Corps if they indicate and interest and willingness to participate.
Since 1991, all appointments to the Conservation Corps program have been delegated to and made by [a member of the Director’s] staff. [The Director] has exercised no authority and [made no decision] concerning those appointments at any time. That arrangement and practice will continue in the future.
[The Director’s son] has expressed an interest and willingness to participate in the Conservation Corps program [, and meets all of the program’s eligibility requirements].
Conclusion & Waiver
MONTGOMERY COUNTY ETHICS COMMISSION
In a memorandum dated October 9, 2000, that was placed before the Commission as it began its regular monthly meeting of October 10, 2000, the Acting Computer Applications Manager of the Department of Information Services & Telecommunications ("DIST’) has asked for "a waiver to Aspens Systems Professional Services Contract, No.9341000045-CG, Article 8, Paragraph 7, Prohibition Against Hiring County Employees." According to the request, ¶7 prohibits "[t]he Contractor . . . from employing County personnel for the duration of this agreement and for one year after the conclusion of this Contract without prior approval of the County."
This contractual provision obviously is founded on §1lB-52(a) of the Montgomery County Procurement Law, which provides:
Unless authorized by law or the Ethics Commission under Chapter 19A, a person while engaged in a procurement matter with the County must not employ or offer to employ a public employee if the duties of the public employee include significant participation in the procurement matter. Public employee, employ, and significant participation, as used in this section, are defined in Chapter 19 A.
However, the request seeks a waiver that would permit Aspen Systems to hire Mr. Robert Hume, who retired from County service in June 2000. The Ethics Commission, therefore, is treating the memorandum as a request for a waiver of the provisions of the Montgomery County Public Ethics Law that prohibit the employment of former public employees.
1. According to the request:
DIST is in need of temporary IT technical support to assist the Montgomery County Board of Elections during the upcoming election. Aspen Systems proposed the resume of Mr. Robert Hume for review. Mr. Hume is uniquely qualified to provide the services for which DIST is in desperate need. Mr. Hume retired from county service in June 2000 after having spent 26 years supporting the Board of Elections for DIST. Aspen Systems has agreed to provide Mr. Hume’s services for this temporary assignment as a Mainframe Applications Developer Level II for a period not to extend beyond Election Day, November 7, 2000. The total cost of this task order is $7,204.60.
Your approval of this waiver will greatly assist DIST operations because of Mr. Hume’s unique knowledge and background experience with the County’s Board of Elections. The funding required for the services described in the attached task order is being split between the Board of Elections and DIST.
2. According to the "Request for Quotation" that is attached to the request:
The Department of Information Systems and Telecommunications is seeking one Mainframe Applications Developer, Level II, for an estimated period of 130 hours to assist with the support of the Voter Registration System during the upcoming Presidential Election.
3. Assuming a forty-hour work week, there are only 200 normal work-week hours between Tuesday, October 10, 2000, when the matter was presented to the Ethics Commission, and Tuesday, November 7, 2000, the date of the General Election. Time, therefore, is of the essence.
The Ethics Law prohibits the employment of a former county employee under the following circumstances:
(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 nondiscretionary 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.
However, the Ethics Law also authorizes the Ethics Commission to waive these prohibitions under certain circumstances:
After receiving a written request, the Commission may waive the prohibitions of Section 19A-13 if it finds that:
(1) 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.
ANALYSIS & DECISION
The one-page request generally states that Mr. Hume "spent 26 years supporting the Board of Elections for DIST," and that he is "uniquely qualified to provide the services for which DIST is in desperate need." Were Mr. Hume asserting or asking for an advisory opinion on the question of whether he is within the scope of either of the 10-year prohibition or the 1-year prohibition, the Commission would require more information. However, because time is of the essence and the request is for a waiver for a limited period of time, the Commission accepts these statements, for the purposes of this request, as an admission that Mr. Hume significantly participated, as a public employee, in the matter that is the subject of his proposed post-county employment until the time of his retirement; that he had official responsibility concerning the contract; and, therefore, that he is subject to both prohibitions, i.e., he may not assist or be employed by Aspen Systems in connection with this particular matter before June 2010 and he may not be employed by Aspen Systems for any purpose before June 2001, unless he receives a waiver.
Applying the standards for waiving the prohibitions on the employment of former county employees, the Commission concludes that the proposed temporary employment of Mr. Hume is not likely to create a conflict of interest, and, further, is in the public interest.
The Commission is troubled by the lateness of this request. The Commission also asks why DIST is acquiring these services from Aspen Systems, rather than directly contracting with Mr. Hume. It may well be that Aspen Systems’ contract or the County’s personnel policies foreclose that option. The timing of this request, however, has deprived the Commission of the opportunity to raise that question and hear from appropriate county officials prior to making a timely decision on this request.
Accordingly, the Commission hereby waives the Ethics Law’s prohibitions on the employment of former county employees for the purpose of permitting Aspen Systems to employ Mr. Hume to provide the services described in the Request for Quotation for the temporary period of time stated in the request for this waiver, subject, however, to a determination by the County, that DIST is not at liberty to contract directly with Mr. Hume for those services.