Agenda Item 8
May 3, 2011
Public Hearing
MEMORANDUM
April 29, 2011
TO:
County Council
FROM:
SUBJECT:
Robert H. Drummer, Senior Legislative Attorney
fvur::;;
Public Hearing:
Bil112-11, Ethics - Gifts - County Employees - Roadside
Solicitation
Bill 12-11, Ethics - Gifts - County Employees Roadside Solicitation, sponsored by
Councilmember Andrews, Council President Ervin, and Councilmember Rice, was introduced on
April 5, 2011. A Government Operations and Fiscal Policy Committee worksession is
tentatively scheduled for June 13.
Bill 12-11 would amend the County Ethics law to prohibit a County employee from
standing in a roadway, median divider, or intersection to solicit money or donations of any kind
from the occupant of a vehicle during official work hours.
Background
The County Ethics Law,
§
19A-16, generally prohibits a County employee from soliciting
a gift to the employee or another person or organization during official work hours or while
wearing an official County uniform. However, the Ethics Law contains an exception to this
general prohibition to permit an employee to solicit charitable donations during official work
hours or while identifiable as a County employee if the charity drive is approved by the County
Executive. One example of an "approved" charity drive for County employees is the annual
"Pass the Boot" campaign where Montgomery County Fire and Rescue employees solicit
donations for the Muscular Dystrophy Association during official work hours while wearing
County issued uniforms. A copy of Executive Order No. 277-07 approving this charitable
campaign is attached at ©6-7. During this campaign, County fire fighters routinely solicit
donations from the drivers of motor vehicles while standing on roadway intersections and
median dividers.
The County has limited authority to regulate roadside solicitation due to State law
preemption. The Maryland Vehicle Law applies generally throughout the State. The Maryland
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Transportation Code, TR §25-1 0 1.11 preempts all COtUlty legislation on any subject covered by
the Maryland Vehicle Law unless expressly permitted by a public general law. Ally County law
that is inconsistent or identical to a provision of the Maryland Vehicle Law is preempted.
Therefore, the County does not have the authority to enact a law either permitting or prohibiting
the solicitation of money or donations on any part of a roadway, median divider, or intersection.
Two provisions of the Maryland Vehicle Law regulate the conduct of pedestrians in
roadways. First, TR §21-507(a) prohibits standing in a roadway to "solicit a ride, employment,
or business from the occupant of any vehicle" except for the occupant of a disabled vehicle who
seeks help from another vehicle. A "roadway" is defined as "that part of a highway that is
improved, designed, or ordinarily used for vehicular travel, other than a shoulder." TR § 11-151.
The Attorney General has interpreted this statute broadly to include the solicitation of donations
due to the public safety purpose of the statute. See 93 Op. Atty Gen. Md. 31 (2008).
Second, in Montgomery County only, a minor must not stand in "a roadway, median
divider, or intersection to solicit money or donations of any kind from the occupant of a vehicle."
TR §507(g). This subsection is enforceable in the County by issuing a warning to a minor.
Unless specified otherwise, a violation of the Maryland Vehicle Law is a misdemeanor. TR §27­
101.
However, the General Assembly has banned roadside solicitation in other counties. TR
§21-507(c) prohibits a person from standi,ng on a roadway, median divider, or intersection to
solicit money or donations from the occupant of a vehicle in Carroll, Charles, Frederick, Harford,
and Washington CotUlties. TR §21-507(d), (e), and (i) prohibit a person from standing in a
"highway" to solicit money or donations from the occupant of a vehicle in Prince George's,
Anne Arundel, and Howard Counties. "Highway" is defined as broader than roadway, and
includes shoulders, median dividers, bicycle and walking paths, and other property in and near
the roadway.
These limits on roadside solicitation in neighboring cotUlties were enacted to protect both
pedestrians and motorists and to permit the free flow of traffic. Although the County does not
currently have the authority to enact a general ban on roadside solicitation,2 the COtUlty does
have the authority to limit roadside solicitation by County employees during official work hours.
The County has a special duty to provide for a safe workplace for its employees under both State
and Federal occupational safety and health laws. Although a COtUlty employee has not yet
suffered an injury while soliciting donations during official work hours, fire fighters have
recently suffered injuries in other states while participating in a roadside solicitation charity
drive. Newspaper reports of an accident in 2009 and another in 2010 are at ©9-1
O.
Bill 12-11 would prohibit a COtUlty employee from standing in a roadway, median
divider, or intersection to solicit money or donations of any kind from the occupant of a vehicle
during official work hours. COtUlcilmember Andrews explained the purpose of this Bill in a
memorandum attached at ©8.
It
is important to note that this Bill would not eliminate the
MCFRS employee "Pass the Boot" campaign for Muscular Dystrophy. Fire personnel could still
References to the Md. Transportation Code are stated throughout as "TR."
2
A State Bill that would have authorized the Council to enact a local law regulating roadside solicitation was
withdrawn
by
its sponsor during the 2011 legislative session.
J
2
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solicit donations during work hours
3
at approved parking lots or other public spaces away from
roadways. Under current law, a County employee can en¥age in roadside solicitation when not
at work as long as the employee does not violate State law. The Bill would not change this.
This packet contains:
Bill 12-11
Legislative Request Report
Executive Order No. 277-07
Councilmember Andrews Memo dated March 31, 2011
Newspaper Reports of Roadside Solicitation Accidents
Photos of County Fire Fighters
Circle
#
1
5
6
8
9
11
A charitable campaign during official work hours must be approved by the Executive.
4
Photographs of County fire fighters during the September 20 I 0 "Pass the Boot" campaign indicate that some may
have violated State law by entering into the roadway to solicit contributions. See photos attached at ©11-13.
3
F:\LA \v\BILLS\1112 Ethics - Roadside Solicitation\Public Hearing Memo,Doc
3
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Bill No.
12-11
Concerning: Ethics - Gifts - County
Employees - Roadside Solicitation
Revised: March 30, 2011 Draft No. _2_
Introduced:
April 5, 2011
Expires:
October 5,2012
Enacted: _ _ _ _ _ _ _ _ __
Executive: _ _ _ _ _ _ _ __
Effective: _---::--:--_ _ _ _ _ __
Sunset Date:
-!..!N~onc.!.:.e:!__
_ _ _ _ __
Ch. _ _, Laws of Mont. Co. _ __
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
By: Councilmember Andrews, Council President Ervin, and Councilmember Rice
AN
ACT to:
(1)
prohibit a County employee from standing in a roadway, median divider, or
intersection to solicit money or donations of any kind from the occupant of a vehicle
during official work hours; and
generally amending the ethics law concerning the solicitation of gifts by County
employees.
(2)
By amending
Montgomery County Code
Chapter 19A, Ethics
Section 19A-16, Soliciting or Accepting Gifts
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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BILL
No. 12-11
1
2
3
Sec.
1.
19A-16.
Section 19A-16 is amended as follows:
Soliciting or accepting gifts.
(a)
A public employee must not solicit a gift to the employee or another
person or organization:
(I) from any business or person who:
(A)
is registered or must register as a lobbyist;
4
5
6
7
(B) does business with the County agency with which the
public employee is affiliated; or
(C) is, or owns or operates a business that is, regulated by the
County agency with which the public employee is
affiliated;
(2)
during official work hours, or at a County agency, or from any
other public employee who is supervised directly or indirectly by
the public employee;
(3) while wearing all or part of an official uniform of a County
agency, or while otherwise identifiable as a public employee;
(4)
for the employee's own benefit, unless the Ethics Commission
approves the solicitation; or
(5)
with the intent of affecting or offering to affect any action by
County agency.
(b) However, a public employee may solicit a gift:
(1)
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
from public employees during official work hours, or at a County
agency, for a charitable drive that is approved by the County
Executive or (for public employees of the legislative branch) the
President of the Council, when the solicitation is part of the
public employee's official duties;
23
24
25
26
(j)­
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BILL
No. 12-11
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
(2)
from any person to a charitable organization, as defined in the
state law regulating public charities, or a municipality, if the
public employee does not solicit gifts primarily from those
persons who do business with or are regulated by the county
agency with which the public employee is affiliated, or from
other employees who are supervised directly or indirectly by the
public employee;
(3)
from any person, during official work hours, while identifiable as
a public employee, or at a County agency, for the benefit of a
County agency or a nonprofit organization formally cooperating
on a program with a County agency if the solicitation is
authorized by the County Executive or (for public employees of
the legislative branch) the President of the Council in an order
printed in the County Register that designates:
(A)
(B)
the public employee authorized to solicit the gift;
the purpose for which the gift is sought;
the manner in which the gift may be solicited;
the persons or class of persons from whom gifts may be
solicited; and
(C)
(D)
(E)
the type of gifts that may be solicited;
(4)
while wearing all or part of a uniform of the corporation, to a
nonprofit fire or rescue corporation of which the public employee
is a member; or
(5)
from any person to a charitable organization, as defined in the
state law regulating public charities, while identifiable as an
elected official, if the employee lists in a supplement to each
(])-
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BILL
No. 12-11
53
54
55
56
57
58
59
60
Approved:
annual financial disclosure statement each organization to which
the employee solicited a contribution during that year.
This subsection does not permit
~
public employee, during official work
hours, to stand in
~
roadway, median divider, or intersection to solicit
money or donations of any kind from the occupant of
~
vehicle.
*
*
*
Valerie Ervin, President, County Council
Date
61
Approved:
62
Isiah Leggett, County Executive
Date
63
This is a correct copy ofCouncil action.
64
Linda M. Lauer, Clerk ofthe Council
Date
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LEGISLATIVE REQUEST REPORT
Bill 12-11
Ethics
-
Gifts
DESCRIPTION:
County Employees
-
Roadside Solicitation
To amend the County Ethics law to prohibit a County employee from
standing in a roadway, median divider, or intersection to solicit
money or donations of any kind from the occupant of a vehicle
during official work hours.
The County has a special duty to provide for a safe workplace for its
employees under both State and Federal occupational safety and
health laws. Roadside solicitation is dangerous, and permitting
County employees to do this during official work hours undermines
the County's efforts to increase pedestrian and traffic safety.
To protect both pedestrians and motorists and to permit the free flow
of traffic.
Police Department
To be requested.
To be requested.
To be requested.
Roadside solicitation is banned in Prince George's, Howard, Anne
Arundel, and Frederick Counties.
Robert
H.
Drummer, Senior Legislative Attorney, 240-777-7895
To be researched.
PROBLEM:
GOALS AND
OBJECTIVES:
COORDINATION:
FISCAL IMPACT:
ECONOMIC
IMPACT:
EVALUATION:
EXPERIENCE
ELSEWHERE:
SOURCE OF
INFORMATION:
APPLICATION
WITHIN
MUNICIPALITIES:
PENALTIES:
Under Ethics Law
f:\law\bills\ 1112 ethics - roadside solicitation\legislative request report. doc
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MONTGOMERY COUNTY
EXECUTIVE ORDER
Subj~
Offices
()f
the Co'Unty
lt~ef;~tive
.. 101
Mofiroe
Stre~t
R(J~lrville,
Maryland
i08~0
Execntive
Order No.
2,.77....07
Employee
Solicitation
Waiv~r
Origiwiting
J)epartiJ.lent
Fire I'\D.d Rescue Service
Vepaftnumt NQ.
Effective
Da~
8/23/07 .;
SOLICItATION OF GtFTs ... MUSCULAR
~YS'l'R,OPav
ASSOCIATiON
Pursuant
to
§
19A~16(b)(3)
ofthe
Montgomery
COWlty
Public
EthicS
Law,
th~
County Executivf;
authorizes
the
Fire Chief
to
desi~te
employees
assigned
to
Montgomery
C01;Uity
Fir~
and
Reso'Q.~
Service
to
solicit
gifts
for
the
benefit
ofth~
Muscular
Dystrophy
Associrm.on
(MDA) as
part
of
its
"P~s
The
Boot"
Canipai~
in
accordance
with
the
requU;~m~ts
estabIi$hc;d
by
thi$
&.ec;utivft Order.
Employees authorized to soJlcit
gifts
Any
employee designated
by
the
Fire;!
Chief may
cQn~~
potential4onors
directly.
Purpose
of
the Gifts
The putpose
of
the
gifts.
is to
sl,l'pporfMDA,
a
50
1(c
)(3)
~.
eJi:@mpt
charitaf;l~
organization
dOOicatcd to
conquering
newomuscular
dise~es
that
~ectmOl'e
tbali
a mil.llon
Am~ritaI!S,
.
Manner of Solicitation
The
Fire Chief,
or
the Fire
Chief's de$ignee,
must
authorize iU SQliciq.,tions.
A pu1:>iic
employee
authqrtted
to
solici~
a
gift'
under
this
Ord~
majr participate
in
presentations; cop.dl,lct
gen~~ soli~itations
through mailings, participate
itt
media activities,
01'
mt;~ Petso~y
with potential donors.
Ail
auth9rized publi<;:
employee
may
solicit
gifts during
otIici2!l
work
homs,
whil~ id~tifiabl~ ~
;!
public
employee,
but
m~
not
solicit
~y
indiVidual
or
entity
that
has a
cOiitraGt
with
Montlt0tn~tY
CQuutY Fire
and aeswe
Service
or
any
other County agency
with
whioh the
employee
i1;l
!iffiliate9..
.
Source
of
Gifts
J;)esigpated
emplQyees
mllY
solicit
g:i.fi:s
from any
in<llVidQal
ot
~ti.ty,
including
tlSsociatioDS,
bpsinesses,
corporatioDS.
foundations.
~ee
otglUrlzations,
chaIn~ts
of CQlPl1let<;e, comml;l1lity
groups.
teligi(>~
orga:niz!ltions, f\D.d
.
other govenu:nent
l;!.geucies.
.
Types
of
Gifts
I
~ture
>
Gifts
may include
monetary
contributions;
goods
?ild
servi~es. te~hni¢a1
assistance,
training
space,
or
~uipm~nt
cost
.
._ ._. _
-1
-
>-
•• _ - - - ­
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MONT
GOMffiRY COUNTY
EXECUTIVE
ORDER
Subj~
Offices of the
C~'g~ty
Exec;ut:We ·101
MQ;ntoe
Str~et·
Ro¢k;vme,
Maryl~d
20850
E~ecufur~ Ord~r
No.
Subject
Svffix
Employee Solicitatioli Waiver
OrigiDllting
Dep.lJtt;li:lell!
F~
and
Resctle
Service
277..,.07
:gffec.tive
l>flte
8/23/.07
Manner of
A~ceptall,ce o~
Gifts
U:ti1ess the
donor
makes
~
written reqy¢
~t
there
no P\lblic
acknowl~g~ment
of
the
gift
the
Fire
Chief may publicly acknowledge each
gift;
by p1acins a notice
in
the Montgom.ery Cowty
R~gister
indicating
the
giffdonated,
the
identity of the
donor,
the
identity ofthe
recipient
of
the
gift,
an<;l tlie purpose for which the
gift will
be used.
Th.~
Fire Chief may
iss-p.e
a
press
rele~~,
if
(iesirW.
The
Fire Chief must notify
the
Offi~e
of
th~
CQunty
Ex~ctltive
ofthe
fund$
collecte4
the
MDA
Fill
the Boot C!Ullpaign. The Fire Chief
xnay
:fulfill this reql;lirement
l;>y
sublni~g
a req1,leSt
for
pIacem.~t
of a
:rot
notice
in
the
Montgomery
County
Rcegister
~
outlin<il
above.
Ethics
Law
and
Ethics
Commission
waiver dawd April,
6~
1990.
Approved:
This
Exe9utive
Order is iss-ued.
under
the
AutQority
of
§
19A~
16(b)(j) ofthe
Montgomery
COUJ1ty
Public
1M",
lsiah
Recommended
by:
.~
Th6~~F~~~
Montgo:ID.~ry
County Fire
•.
Date
and Resc"l,le
Servi~
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March 31, 2011
MEMORANDUM
TO:
FROM:
SUBJECT:
Councilmembers
/"::J "
1
fA
~
-
Councilmember Phil Andrews
O~ v~-
- - - ­
Prohibiting roadway solicitation by County employees on County time
Bill 12-11, drafted at my request, and co-sponsored by Council President Ervin and
Councilmember Rice, would amend the County's Ethics Code to prohibit County
employees from soliciting donations in roadways while on County time. This measure
would stop County employees from endangering themselves and drivers, pedestrians and
bicyclists while on County time.
It
is inherently and needlessly dangerous for individuals to enter highways to solicit
contributions from drivers.
In
Sante Fe Springs, California in 2010, and in Waxahacie,
Texas in 2009, firefighters conducting "Fill the Boot" campaigns were struck by vehicles
(see attached articles). As a result, the local fire chief in Texas suspended the roadway
campaign. Allowing County employees to solicit in roadways on County time as is
done now -- is not only dangerous; it undermines the County's efforts and credibility in
promoting pedestrian and traffic safety. If County employees continue to solicit in
roadways, it is only a matter of time before an employee is injured or killed by a vehicle.
This bill is what the Council can do at this time to reduce the chances of that happening.
Until the Council obtains authority from the General Assembly to prohibit roadway
solicitation altogether, the Council cannot prohibit County employees from soliciting in
roadways on their own time.
Except with regard to roadways, the bill would not change the current law that allows the
County Executive or the County Council to authorize County employees to solicit for
charity on County time.
(j)
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05/07/2010
Calif. firefighter struck, injured by car during fund raiser
The 53-year-old firefighter was listed in serious but stable condition
By Bethania Palma Markus
The Whittier Daily News
SANTA FE SPRINGS, Calif. -
Thursday morning.
A firefighter was injured while collecting money for a nonprofit organization
The firefighter was at Valley View Avenue and Alondra Boulevard collecting money from passing drivers for
the department's annual "Fill the Boot" fundraiser for the Muscular Dystrophy Association when he crossed
lanes and was struck by a small pickup truck at about 9:45 a.m., said Whittier police Officer Mike
Dekowski.
Dekowski said the 53-year-old firefighter was taken by ambulance to UCI Medical Center and was listed in
serious but stable condition.
"He's conscious and talking/' Dekowski said.
Fire Department officials wouldn't release his name, citing medical privacy laws.
Santa Fe Springs firefighters were at that intersection and Telegraph and Carmenita roads Tuesday and
Thursday from 8 a.m. to 12 p.m. and 2:30 p.m. to 5:30 p.m. for the yearly fundraiser, officials said.
The department has been participating in the yearly drive for seven years, said Janet Ortiz, department
spokeswoman.
"We're going to work with the Whittier police and look at the results of the investigation and we'll
re-evaluate how or if we'll do it in the future/' Ortiz said.
The firefighter was struck while walking in an eastbound lane of Alondra Boulevard, Dekowski said. The
light had just turned green and he was trying to get to the sidewalk.
The driver stopped after the collision and the incident is being considered an accident, Dekowski said.
"Technically (the driver) had the right of way. He was not at fault," Dekowski said. "Chances are (the
firefighter) didn't see the truck and the truck never saw him coming."
East and westbound lanes on Alondra Boulevard were closed following the accident, Dekowski said. The
eastbound side was closed for about four hours.
Carroll Wills, communications director for the California Professional Firefighters Association, said
firefighters nationwide ask drivers and pedestrians yearly to fill their boots and donate the collected money
to the MDA or burn foundations, he said.
The International Association of Firefighters sponsors the Muscular Dystrophy Association and firefighters
have been participating in "Fill the Boot" for about a half century, he said.
"In my memory this is the first time I've seen a situation where someone was injured while conducting a
'Fill the Boot' drive/' he said. "They're typically conducted extremely safely."
Copyright 2010 MediaNews Group, Inc. and
Los Angeles Newspaper Group, Inc.
tlf
LexisNexis"
(j)
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- Texas-Fire.com - http://www.texas-fire.com -
Waxahacie FF Struck by Vehicle During Fill the Boot: Chief
Suspends Campaign
Posted By Fookie On April 24, 2009
@
19:37 In Metroplex
I
No Comments
A passing vehicle struck a Waxahachie firefighter near the intersection of Marvin and Ferris
avenues at about 3:27 p.m. Thursday. The firefighter was working with three others during the
department's annual Fill the Boot campaign benefiting the Muscular Dystrophy Association. The
fireman, Marcus
L.
Brown, 32, was transported by ground ambulance to Baylor University
Medical Center in Dallas, where he was treated and released.
According to the accident report, a 2006 Lincoln Mark LT pickup driven by Charlie
L.
Smith, 49,
of Waxahachie was turning left from Cow Path Alley. Smith told police that, as he turned left,
another vehicle stopped in front of him, causing him to turn into the inside lane.
Smith told police Brown was standing in the roadway and stepped in front of him as he
completed his turn, according to the report, which indicates several witnesses to the accident.
The fire department had just started its three-day benefit fundraiser campaign at 10 a.m.
Thursday. Fill the Boot has been held in the city for more than 20 years. During last year's
campaign, members raised a little more than $14,000 from public contributions and had a goal
of $15,000 for this year's drive.
Crews of three to four firefighters had rotated throughout the day at the intersections of Marvin
and Ferris avenues and at Indian Drive and
u.s.
Highway
77,
collecting donations in a large
boot.
'Typically, this has been a fundraiser that firefighters from around the country have done to
benefit MDA
t "
said campaign coordinator Capt. Don Alexander in an interview with the Daily
Light prior to the accident. "The public has been really generous in the past and so far this year
- and that is what really surprises a lot of the young guys who do this because they don't
expect it."
Responding to the accident scene were additional personnel from the Waxahachie Fire
Department along with the Waxahachie Police Department and East Texas EMS.
Fire Chief David Hudgins said that, due to the accident, the Fill the Boot campaign is suspended
until further review for safety considerations.
"We have done this drive for years and never have had a problem or an accident until today," he
said. "Now, with traffic the way it is, we will have to re-evaluate it.
"We will be contacting several businesses in the area to do the campaign in front of their stores
in the future," he said. "We will no longer work on the streets."
By ANDREW BRANCA
Daily Light staff
\Nriter
[1]
Article printed from Texas-Fire.com:
http://www.texas-fire.com
URL to article:
http://www.texas-fire.com/2009/04/waxahacie-ff-struck-by-vehicle­
during-fill-the-boo'l:-chief-suspends-campaign/
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Photos of Montgomery County Firefighters
Fill the Boot, September 2010
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