MFPITEM2
July 15,2010
W orksession
MEMORANDUM
TO:
FROM:
SUBJECT:
Management and Fiscal Policy Committee
~Michael
Faden, Senior Legislative Attorney
Worksession:
Expedited Bill 37-10, Ethics
Ethics Commission - Staff
Expedited Bill 37-10, Ethics - Ethics Commission - Staff, sponsored by the Management
and Fiscal Policy Committee, was introduced on June 15. A public hearing was held on July 13.
Bill 37-10, which resulted from the Committee's review of the Commission's operating
budget, would:
• authorize the Ethics Commission, rather than the Chief Administrative Officer, to
appoint and remove the Commission's staff director/chief counsel, who would
replace the current Commission Executive Director;
• require the staff director/chief counsel to be a lawyer licensed to practice in
Maryland, and authorize the staff director/chief counsel to advise and represent
the Commission independent of the County Attorney;
• clarify the working relationship between the Commission and the County
Attorney;
• authorize the staff director/chief counsel to appoint, supervise, and remove other
Commission staff; and
• exempt Commission staff from membership in a collective bargaining unit.
The CommIttee's purpose in introducing these amendments was to enhance the independence
and value of the Commission.
All speakers at the hearing, including the current and former chairs of the County Ethics
Commission and the staff director of the Anne Arundel County Ethics Commission, supported
this Bill as introduced (see testimony, ©9-14). The County Executive did not testify or send a
representative to the hearing.
Fiscal Impact
The OMB fiscal impact statement, shown on ©6-8, estimated that the
fiscal impact of this bill, mainly replacing the current Commission Executive Director with a
new staff director/chief counsel, could range from a cost of $11,450 to a savings of $66,000,
depending on the pay grade of the new employee.
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Issues
The significant policy issues presented by this Bill include:
1) Who should select the Commission's staff!
This Bill, following the model of the
County Merit Systems Protection Board (see County Code §33-4A), allows the Commission to
select its chief staff member, who in tum would select, through the merit system process, all
other Commission staff. Under the current law, all Commission staff are appointed or assigned
by the Chief Administrative Officer after receiving the Commission's recommendation.
2) Who should supervise the Commission's staff?
This Bill places the Commission
staff director under the "general supervision" of the Commission, rather than the Chief
Administrative Officer as in the current law (see ©2, lines 9-12, 15-17). The staff director then
supervises any other staff members. (Neither the current law nor the Bill speak to the number of
other staff members; that is decided in the operating budget.)
3) Should the staff director be required to be lawyer?
Unlike the current law, Bill 37­
10 would require the Commission's staff director to be a lawyer licensed to practice in Maryland.
The Bill also authorizes the Commission staff director to advise and represent the Commission
and investigate potential violations of the ethics law without the approval or supervision of the
County Attorney, as allowed by Charter §410. Betsy Dawson, Executive Director of the Anne
Arundel County Ethics Commission (see testimony, ©11-12) summarized the advantages of
having an in-house lawyer on the Commission's staff. The County Attorney might counter that
legal counsel who are not directly employed by the office or department they serve, as is the case
with all of the County Attorney's staff, could offer a more detached perspective while still
faithfully executing their duties to their client.
4) Should the staff director be a merit system employee or, alternatively, be hired or
fired at the Commission's pleasure?
Bill 37-10 would make the Commission's staff
director/chief counsel (as well as the other Commission staff) a merit system employee, meaning
that the staff director would be hired competitively and could be fired only for good cause. Merit
system status would give the staff director a certain measure of independence from the
Commission itself, which depending on the circumstances could be a positive or negative result.
The worst case imaginable outcome of this legislation could either be a rogue Commission
abetted by a compliant staff director or a rogue staff director who undercuts the Commission's
orders; in Council staff's view, neither is a likely result, and either could be dealt with by
legislative or judicial corrective measures. The important point, in our view, is that this Bill
would give the Commission the staffing tools it needs to accomplish its assigned purposes.
Council staff recommendation:
enact Bill 37-10 as introduced.
This packet contains:
Bill 37-10
Legislative Request Report
Fiscal Impact Statement
Public hearing testimony
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37-10
Expedited Bill No.
Concerning: Ethics - Ethics Commission
- Staff
Revised:
6/11/10
Draft No. 4
Introduced:
June 15, 2010
Expires:
December 15, 2011
Enacted: _ _ _ _ _ _ _ _ __
Executive: _ _ _ _ _ _ _ _ __
Effective: _----:-_ _ _ _ _ _ __
Sunset Date: """'N:....:.o=n:""e'-:-----:-:--_ _ __
Ch. _ _, Laws of Mont. Co. _ __
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
By: Management and Fiscal Policy Committee
AN EXPEDITED ACT
to:
(l)
revise the process to appoint and remove staff for the Ethics Commission;
(2)
require the Commission staff director to be an attorney;
(3)
modity how the Commission may receive legal advice and services;
(4)
exempt staff ofthe Commission from any collective bargaining unit; and
(5)
generally amend County law related to the Ethics Commission.
By amending
Montgomery County Code
Chapter 19A, Ethics
Section 19A-5
Boldface
Underlining
[Single boldface brackets]
Double underlining
[[Double boldface brackets]]
* * *
Heading or defined term.
Added to existing law by original bill.
Deletedfrom existing law by original bill.
Added by amendment.
Deletedfrom existing law or the bill by amendment.
Existing law unaffected by bill.
The County Council for Montgomery County, Maryland approves the following Act:
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EXPEDITED BILL
No.
37-10
1
Sec.
1.
Section 19A-5 is amended as follows:
19A-5.
(f)
Ethics Commission
2
3
4
*
Administrative Support.
*
*
5
(1) The Commission must be allocated merit system staff, separate
office space, equipment, and supplies within the limits of the
Commission's appropriations. [The Chief Administrative Officer
appoints or assigns staff to the Commission after receiving a
recommendation from the Commission. Subject to the general
supervision of the Chief Administrative Officer, assigned]
Commission staff serve at the Commission's direction [of the
Commission] to perform duties assigned by the Commission.
The Commission must appoint
~
6
7
8
9
10
11
12
13
14
15
staff director/chief counsel to
perform duties assigned
12Y
the Commission, and may remove the
staff director/chief counsel. Subject to the general supervision of
the Commission, the staff director/chief counsel must appoint and
supervise and may remove other Commission staff.
The
16
17
18
19
appointment, retention, and removal of all Commission staff must
be subject to applicable merit system laws and regulations. The
staff director/chief counsel must be an attorney licensed to
practice law in Maryland, and may advise and represent the
Commission without the approval or supervision of the County
Attorney.
(2) The Commission may ask the County Attorney to provide an
opinion on any legal issue relating to the Commission's duties.
(3) The County Attorney must.1 on request of the Commission,
provide the Commission with legal services.
[However, the
20
21
22
23
24
25
26
27
o
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EXPEDITED BILL
No. 37-10
28
29
30
31
32
33
34
35
36
37
County Attorney may employ special legal counsel to the
Commission under Section 213 of the Charter.]
The County
Attorney must provide an attorney to prosecute a case before the
Commission under Section 19A-IO unless the Commission
assigns or retains
~
different attorney or other staff member to
perform that function.
An
individual attorney in the office of the
County Attorney who is assigned to provide general legal advice
to the Commission must not be an investigator under Section
19A-9 or prosecute a case before the Commission under Section
19A-I0 for one year after the attorney's Ethics Commission
assignment ends.
38
39
40
41
42
*
33-102.
Definitions.
*
*
Sec.2. Section 33-102 is amended as follows:
The following terms have the meaning indicated when used in this [article]
Article:
43
44
45
46
47
48
49
50
51
52
53
54
*
(4)
government, except:
*
*
Employee
means any person who works for the County
*
(0)
(i)
*
*
an employee who works for:
the Office of the County Executive;
the Office of the Chief Administrative Officer;
the County Council;
the Office of the County Attorney;
the Office of Management and Budget;
the Office of Intergovernmental Relations;
(ii)
(iii)
(iv)
(v)
(vi)
Q
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EXPEDITED BILL
No.
37-10
55
56
(vii) the Office of Human Resources; [or]
(viii) the Merit System Protection Board; or
(ix)
the Ethics Commission;
57
58
59
60
*
*
*
Sec. 3. Expedited Effective Date; Transition.
The Council declares that this legislation is necessary for the immediate
protection of the public interest. This Act takes effect on the date when it becomes
law. The position of Executive Director of the Ethics Commission is abolished by
operation of law on the date that the Commission appoints a staff director/chief
counsel, as authorized by County Code Section 19A-5(t), as amended by Section 1 of
this Act.
Approved:
61
62
63
64
65
66
67
68
69
Nancy Floreen, President, County Council
Date
70
71
Approved:
72
73
Isiah Leggett, County Executive
Date
74
75
76
77
This is a correct copy ofCouncil action.
Linda M. Lauer, Clerk of the Council
Date
G
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LEGISLATIVE REQUEST REPORT
Expedited Bill 37-10
Ethics
-
Ethics Commission
-
Staff
DESCRIPTION:
Would revise the process to appoint and remove staff for the
Ethics Commission; require the Commission staff director to be
an attorney; modify how the Commission may be provided
legal advice and services; and exempt staff of the Commission
from any collective bargaining unit.
Recent proposed budget actions arguably could have
undermined the effectiveness and independence of the Ethics
Commission and its staff.
To enhance the independence of the Ethics Commission and
its staff from other elements of County government by
authorizing the Commission to select its staff director, who
could also function as the Commission's in-house attorney.
Ethics Commission,
Resources
To be requested.
Minimal.
To be requested.
To be researched.
Michael Faden, Senior Legislative Attorney, 240-777-7905
Applies only to County Ethics Commission.
County Attorney,
Office
of Human
PROBLEM:
GOALS AND
OBJECTIVES:
COORDINATION:
FISCAL IMPACT:
ECONOMIC
IMPACT:
EVALUATION:
EXPERIENCE
ELSEWHERE:
SOURCE OF
INFORMATION:
APPLICATION
WITHIN
MUNICIPALITIES:
PENALTIES:
Not applicable
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OFFICE OF MANAGEMENT AND BUDGET
Isiah Leggett
County Executive
Joseph
F.
Beach
Director
MEMORANDUM
June 30, 2010
TO:
Nancy Floreen, President, County Council
FROM:
SUBJECT:
Joseph F. Beach,
DirecroF
Expedited Bil137-1O, Ethics Commission - Staff
The purpose of this memorandum is to transmit a fiscal and economic impact
statement to the Council on the subject legislation.
LEGISLATION
SUMMARY
The proposed bill would do the following:
(1) Authorize the Ethics Commission, rather than the ChiefAdministrative Officer, to
appoint or remove the Commission's staff director/chief counsel, who would
replace the current Commission's Executive Director;
(2) Require the staff director/chief counsel to be a lawyer licensed to practice in
Maryland, and authorize the staff director to advise and represent the Commission
independent of the County Attorney;
(3) Clarify the working relationship between the Commission and the County
Attorney;
(4) Authorize the staff director/chief counsel to appoint, supervise, or remove other
Commission staff; and
.'
,
(5) Exempt Commission stafffrom being a member in a collective bargaining unit.
Office of the Director
101 Monroe Street, 14th Floor' RockviUe,
MaIyland
20850 • 240-777-2800
www.montgomerycountymd.goy
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Nancy Floreen, President, County Council
June 30, 2010
Page 2
FISCAL Al'i'D ECONOMIC SUMMARY
There is no direct economic impact as the bill clarifies the working relationship
between the Ethics Commission, a proposed staff director, and the County Attorney's Office and
requires the proposed staff director to be a licensed lawyer.
There is a potential fiscal impact due to the requirement that the staff director be an
attorney. The Office ofHuman Resources (OHR) reported the proposed staff director could be a
Grade 32 ofthe County's general salary schedule, the same as a legislative attorney position.
ORR stated the proposed staff director position could also fall into one of the three pay grades
(24,27 and 32) for an Assistant County Attorney. The determination of the pay grade would
require a classification study.
For the sake ofthis analysis, OMB will assume the proposed staff director will be
either a grade 32, Assistant County Attorney position or a grade 24, Assistant County Attorney.
The following analysis provides the fiscal impact at the midpoint and maximwn of those pay
grades.
If
the staff director is hired at the maximum of the 32 pay grade, with fringe benefits
assumed at 30% ofthe director's salary, the fiscal impact will be a personnel cost increase of
$11,450 as shown on the chart below:
Grade 32 at Maxim urn
Current Budgeted Salary
Under proposed Bill 37-10 attop of grade
Difference
MLS III
Grade 32
~~B.nems
$9
$63560
$131,410
$39,420
I
Total PC
1
$159,380
$170,830
$11,450
If
the staff director is hired at the midpoint ofthe 32 pay grade, with fringe benefits
assumed at 30% of salary, the fiscal impact will be personnel cost savings of$25, 190.
. Grade 32 at
Mid~oint
Current Budgeted Salary
Under proposed Bill 37-10 at midpoint
Difference
Classification
MLS III
Grade 32
Salary
$95.820
$103,220
Total PC
Benefits
$63,56!L
r-
$159,380
$134,190
$30,970
-$25,190
If
the staff director
is
hired at the maximum of the 24 pay grade, with fringe benefits
assumed at 30% ofsalary, the fiscal impact will be personnel cost savings of $42,900.
Grade 24at Maximum
Current Budgeted Salary
Under proposed Bill 37-10 at top of grade
Difference
Classification
MLS III
Grade 24
Salary
$95,820
$89,600
Benefits
$63,560
$26,880
Total PC
I
$159.380 •
$116,480 •
-$42900
I
1
The Executive Director's salary and fringe benefits are currently $159,380.
(j)
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Nancy Floreen, President, County Council
June 30, 2010
Page 3
Finally, if the staff director is hired at the midpoint ofthe 24 pay grade, with fringe
benefits assumed at 30% of the director's salary, the fiscal impact will be persormel cost savings
of $66,000 as shown on the chart below:
Grade 24 at Midpoint
Current BudQeted Salary
Under proposed Bill 37-10 at midpoint
Difference
Classification
MLS
III
Grade 24
Salary
$95,820
$71,830
Benefits
$63,560
$21.550
Total PC
$159,380
$93,380
-$88,000
Should the current Executive Director not meet the minimum requirements for the
proposed staff director, who is an attorney licensed to practice law in Maryland, there may be
additional costs related to a leave payout.
The following contributed to and concurred with this analysis: Phil Weeda of the
Office of Management and Budget, Lisa Craft, Office of Human Resources, and Barbara
McNally, Ethics Commission.
JFB:brm
cc: Kathleen Boucher, Assistant Chief Administrative Officer
Fariba Kassiri, Assistant Chief Administrative Officer
Barbara McNally. Ethics Committee
Lisa Craft, Office of Human Resources
Phil Weeda, Office ofManagement and Budget
®
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r
MONTGOMERY COUNTY ETHICS COMMISSION
Stuart D. Rick
Chair
Nina A. We/sbrotll
Vice Chc.:ir
TESTIMONY BEFORE THE COlJNTY COUNCIL JULY 13,2010
Good Afternoon Council President Floreen and Council Members. Thank you for
the opportunity to speak today about Bill 37-10, on behalf of the Montgomery County
Ethics Commission. 'I am Stuart Rick, Chairman of the Montgomery County Ethics
Commission.
First, the members of the Commission want the Council to know we are deeply
grateful for the Council's recognition of the importance of the Commission';; mission, and
for the Council's interest in the Commission's independence and its continued separate
existence as a safe haven to anyone seeking confidential advice. We understand that
these are the bases for the bill being considered today.
As you know, Bill 37-10 authorizes the Ethics Commission to appoint a staff
director/chief counsel to advise and represent the Commission. This person will be a
lawyer licensed to practice in Maryland, and will give the Commission new, in-house
capabilities for its investigations, advisory and other services. Having its
o~~m
in-house
counsel will bring more insularity to the Commission, and should provide further
(j)
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assurance to the Commission's stakeholders who have concerns about the confidentiality
of the Commission's transactions.
The bill rejects a proposal in the FYIl budget proposal that would have placed
the Commission's support services, including its Executive Secretary, into the County
Attorney's Office as a cost savings measure. Of course, the County Attorney's Office will
still be available to provide legal services, if requested by the Commission. In this
regard, the Commission wants to publicly acknowledge the fine support it has received
from the County Attorney's Office over the years, in particular from Ed Lattner of that
office. We look forward to continuing to work with the County Attorney's Office, as
needed.
Finally, it must be noted that enactment of this bill will mean the retirement of the
Commission's Executive Secretary, Barbara McNally, and the end of her career of public
service to Montgomery County. The bill provides that Barbara's position will be
abolished when the Commission appoints its new staff director/chief counsel. Barbara
has served the Commission with loyalty, dedication, and honor since its inception. She
will be greatly missed as we move in this new direction.
The Commission has no objection to the enactment of this bill and
th~
remaining
Amendments, which will remove staff from bargaining unit status and give the
Commission more discretion in the development of its programs and budget.
Thank you.
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ANNE ARUNDEL COUNTY
ETIDCS COMMISSION
July 13, 2010
Ms. Nancy Floreen, Preside:t;1t
Members of the Montgomery County Council
100 Maryland Avenue
Rockville, MD 20850
Re: Support testimony: Bill 37-10
Dear President Floreen and Members of the Montgomery County Council:
I am here, with the approval of the Anne Arundel County
E~hics
Commission, to
express my support for this important legislation. Our own county has adopted the model
that you are now considering with this bill. As the commission's lawyer and executive
director for the last 14 years, I can unequivocally say this model works.
Here are some of the reasons why I support this bill:
1. A commission staff attorney will give full time and attention to ethics
commission business. Attorneys in the county attorney's'office have many other
competing priorities because they have different goals. Full time and attention is
particularly important in enforcement cases, where preparation may take days or weeks
and litigation may demand considerable full-time effort. It is also important that
employees seeking advice receive prompt responses.
2. A commission staff attorney will tend to be proactive while a government
attorney will tend to be reactive - partly as a function of competing priorities, but partly
to avoid pressure from the administration.
3. A commission staff attorney will regard the citizens of the county as the
ethics commission's clients .. A government attorney tends to regard the administration
as the client. The ethics law is designed to reassure
the public
that government business
will be conducted impartially and with independent judgment.
4. A commission staff attorney will have no ties to the county government
administration. This independence will ensure impartiality and discourage favoritism,
and "'ill protect the commission and its staff from overt or subtle attempts at intimidation.
5. A commission staff attorney will be able to provide a legal perspective and
authoritative ethics training to all county employees and officials. Training needs to be
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2
provided by the ethics commission because that is the organization that is charged with
the administration and enforcement of the ethics law.
6.
An
independent commission attorney will help the ethics commission to
achieve
credibility among county employees.
Whistleblowers
and
county employees
seeking advice will be reluctant to come forward if they believe that their information
will be relayed back to their departments.
If
employees do not trust the ethics
commission they will not willingly seek advice nor value the advice they receive.
In
order for government employees and members of the public to fully embrace the ethics
law, they must believe that the ethics commission is truly independent of the
administration.
In
our county, there are several ways in which independence has been
achieved:
• No more than four of the seven members may belong to one party;
• Commission members may not engage in political activity;
• Three of the seven members must be nominated by the county council, to be
appointed by the county executive except for good cause; and
• -Members may only be removed for good cause.
The legislation you are now considering will go far toward assuring an
independent ethics commission. I believe that if you want county employees to support
the ethics law, you must demonstrate that you support the ethics law. By enacting
legislation that makes your ethics commission truly independent, you will be showing
your employees - and the citizens of the county - that you really mean what you say.
Sincerely,
/Betsy K. Dawson
Executive Director
~
@
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County Council Public Hearing July 13,2010
Re:
Testimony of Laurie B. Horvitz Relating to Expedited Bill 37-10 - Ethics­
Ethics Commission - Staff
President Floreen and County Council Members:
I am here to speak in
support
of proposed bill 37-10, relating to the Ethics Commission.
I am a former Commissioner and a former two-term Chair of the Ethics Commission.
I applaud the Council's efforts to preserve the independence of the Ethics Commission
and to improve its effectiveness.
In particular, I support several aspects of the bill.
First, I support language in the bill that will require the Commission to hire an attorney
for its staff director position. Although this provision will mandate an unfortunate
change in current staffing, it will ultimately enhance implementation of the Ethics Law.
The skills of an in-house attorney will be very useful to the Commission. To date, the
Commission has received valuable assistance from the County Attorney's Office. Under
the new law, the Commission may still request services from the County Attorney's
Office as needed. I must, however, express a strong preference for the Commission's use
of in-house legal services in many circumstances. In the past, the Commission has been
largely reliant upon the County Attorney's Office for legal advice. This practice is not
ideal because the County Attorney's Office also provides legal assistance to the County
departments that are the very subject of the Commission's decisions. The County
Attorney's Office has often been placed in an untenable position when providing legal
advice to the Commission about the conduct of others within County Government.
Moreover, the County Attorney serves at the pleasure of the County Executive and, as
such, may sometimes perceive ethics issues from a larger political and institutional
perspective that is inconsistent with the very specific mandates of the Commission.
Second, I favor language in the bill that will require "separate" office space for the
Commission. The Commission has, in fact, operated from a separate office for many
years. The proposed legislation will ensure that such an office arrangement is preserved.
A separate office allows the Commission to secure confidential files and to provide a
private environment for communications with complaining parties, witnesses, and
regulated personneL
Third, I favor legislation that will provide the Commission with participation in the hiring
of its own staff director.
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(
Letter to County Council
July 13,2010
Page Two
Accordingly, I recommend passage of Bill 37-10, and I thank the Council for its current
efforts to improve the Ethics Law.
Sincerely,
cV&y
Laurie B. Horvitz, Esq.
(301) 951-8400
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MFP#2
July 15,2010
Supplementary Packet
OFFICE OF THE COUNTY EXECUTIVE
ROCKVILLE, MARYLAND 20850
Isiah Leggett
County Executive
MEMORANDUM
July 15, 2010
Vl
:\",!>
:=..:
.~.f
TO:
Nancy Floreen, President
Montgomery County Council
Isiah Leggett, County
FROM:
SUBJECT:
EXeCUtiV~ ~
~
Staff
\.1"1
Expedited Bill 37-10 Ethics Commission
The Ethics Commission plays a critical role in maintaining the public's trust that
government officials make decisions in an objective and impartial manner. We all support the
concept that the Ethics Commission should be independent. The independence of the
Commission is predicated on the nature of the Commission-a bi-partisan body whose members
cannot engage in political activity and who can only be removed for cause with the consent of
the Executive and the Council. There is no evidence that the present staff arrangement
(Commission staff assigned by the Chief Administrative Officer with work being assigned by the
Commission) has impaired the independence or integrity of the Commission.
This legislation proposes to transfer responsibility for supervision of the
Executive Director of the Ethics Commission from the Chief Administrative Officer to the Ethics
Commission. However, it is not clear why such a radical change in the management of this
function is warranted and what problems it is intended to address. For the past 25 years, the
management of the County's Ethics oversight has been the responsibility of the CAO and this
arrangement has worked effectively. While some may disagree with the findings and decisions
of the Ethics Commission there is no question of their independence and effectiveness under the
current structure.
As you consider this bill, I urge you not to increase the cost of this function to
address an undefined problem during this very difficult economic environment.
In
my FYIl Recommended Operating Budget, for the Ethics Commission, I
proposed to abolish two administrative positions and transfer the Executive Director's position to
the Office of the County Attorney to produce sllbstantial savings by leveraging the
administrative resources of the County Attorney's Office. As the fiscal impact analysis
indicates, the cost of the new position envisioned in the legislation needs to be determined in the
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Nancy Floreen, President
July 15, 2010
Page 2
classification process; it will most likely be a senior level attorney position at Grade 32 or
possibly in the Management Leadership Service class. By restoring one of the administrative
positions in the FYlI budget and proposing to create a senior level attorney position the costs of
this function will be significantly higher than it would have been under my proposal.
In
addition, with a Commission whose membership changes, it seems entirely
probable that, over time, the Commission may come to rely exclusively on the executive
director!general counsel for guidance-legal and otherwise. Expedited Bill 37-10 makes it a real
possibility that, with the passage of time, the county attorney will no longer have a direct and
regular role in providing advice to the Commission. Requiring that the Commission seek the
advice ofthe county attorney would ensure that the Commission would have the benefit oflegal
advice from two sources (as the Council currently enjoys); in addition, the county attorney would
bring to the Commission a government wide perspective that an executive director/general
counsel will lack. I believe that retaining the current role played by the county attorney in
providing legal advice to the Commission would help the Commission make better decisions.