Agenda Item 6C
February 2, 2016
Action
MEMORANDUM
January 29,2016
TO:
County Council
FROM:
SUBJECT:
Robert
H.
Drummer, Senior Legislative Attorney
Action: Expedited Bill 49-15, Ethics - Update
,;~.
Government Operations and Fiscal Policy Committee recommendation (3-0): approve the
Bill with amendments.
Expedited Bill 49-15, Ethics - Update, sponsored by Lead Sponsor Councilmember
Leventhal, was introduced on December 1,2015. There were no speakers at the public hearing
held on January 12. A Government Operations and Fiscal Policy Committee worksession was
held on January 28.
Bill 49-15 would revise several provisions of the County Ethics Law governing conflicts
of interest and financial disclosure to meet the requirements of State law.
Background
The State Ethics law requires that the County Ethics law be "similar" to the State law for all
public employees except elected officials, and must be "equivalent to or exceed the requirements
of" State law for elected officials (County Executive and Councilmembers).
In both cases, the State law allows the County to modify its law ''to the extent necessary
to
make the provisions relevant to the prevention of conflicts of interest in that jurisdiction". The
State Ethics Commission apparently interprets the latter phrase to only allow those modifications of
County law that would make the County law more stringent than the State law; however, that is not
what this proviso says.
In
Council staff's view, the primary goal ofthe County Ethics Law generally
should be to improve the County law and make it clearer, more effective, and easier to apply and
enforce, rather than simply conform it to the State law in every detail.
Bill 39-14, Ethics Amendments, enacted by the Council on July 21, 2015, signed into law
by the Executive on July 31, 2015, and effective October 30, 2015, made some significant
amendments to the County Ethics Law to conform to the State Ethics Law. On September 10,
2015, the State Ethics Commission reviewed the County Ethics Law, as amended by Bill 39-14,
and concluded that it conformed to the State Ethics Law with several minor exceptions. See the
letter from Assistant General Counsel, Katherine Thompson dated September 21, 2015 attached at
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©9-1O. Bill 49-15 would amend the County Ethics Law to satisfy the State Commission's
concerns.
GO Worksession - January 28, 2016
Edward Lattner, Chief, Division of Government Operations, County Attorney's Office,
represented the Executive Branch. Robert Cobb, Chief Counsel for the County Ethics Commission
represented the Ethics Commission. Robert Drummer, Senior Legislative Attorney, represented
the Council staff. The Committee discussed the Bill and the staff amendment. The staff
amendment would eliminate the requirement that members of 3 County Boards file either a
confidential or a limited public financial statement since Bill 39-14 required all disclosure
statements to be pUblic. The Committee also discussed the limits ofthe general restriction in Code
§19A-13(a). The Committee recommended (3-0) approval of the Bill with Staff Amendment
1.
The Amendments
1. Eliminate authority to waive Section 19A-13(a).
Section 19A-13(a) states that:
(a)
A former public employee must not work on or otherwise 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.
Section 19A-8 would permit the County Ethics Commission to waive this requirement under
certain circumstances. The State points out that this waiver provision does not exist in State law. Bill
49-15 would eliminate this waiver provision. This waiver provision has rarely been used, and staff
could not find an Ethics Commission opinion granting a waiver in the last 10 years.
The Committee discussed how §19A-I3(a) is interpreted by the Ethics Commission. The
restriction on future employment is limited
to
a specific matter that the employee significantly
participated in as an employee. Section 19A -13(c) defines "significant participation" as:
...making a decision, approval, disapproval, recommendation, rendering of advice,
investigation, or similar action taken as an officer or employee. Significant
participation ordinarily does not include program or legislative oversight, or budget
preparation, review, or adoption.
A 2011 Advisory Opinion of the County Ethics Commission is attached at © 14-17 as an
example of how this provision has been interpreted.
Committee recommendation (3-0): approve this amendment.
2. Remove the lO-year time limit on the prohibition
in
§l9A-l3(a) stated above.
The State law prohibition on this type of post-employment does not contain a 10-year time
2
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limit. Although it is unlikely that a specific matter that an employee worked on as a County employee
would still be ongoing after 10 years, Bill 49-15 would change the 10-year time limit to forever.
Committee recommendation (3-0):
approve this amendment.
3. Extend the prohibition against soliciting or receiving a
gift
from a restricted donor to a
person seeking to do business with the County.
The Bill does not include this amendment in the gift provision because §19A-4(e) already
defines "doing business with" as:
(e)
Doing business with means:
(1)
being a party with a County agency to a transaction that involves at least
$1,000 during a year;
(2) negotiating a transaction with a County agency that involves at least $1,000
during a year; or
(3) submitting a bid or proposal to a County agency for a transaction that involves
at least $1,000 during a year.
Further amendment is unnecessary to conform to the State Law.
Committee recommendation (3-0):
no amendment necessary.
4. Clarify that a financial disclosure statement must include both the filer's outside
employment and the employment of the filer's immediate family members.
Council staff believes Bill 39-14 already requires this, but Bill 49-15 would clarify the
Issue.
Committee recommendation (3-0):
approve this amendment.
5. Remove the exception to disclose a source of earned income if the filer and the source
have a confidential relationship.
The State Law does not include this exception. Council staff does not believe it is
necessary since Bill 39-14 was amended to remove the requirement that the filer list each
individual client. Bill 49-15 would remove this exception.
Committee recommendation (3-0):
approve this amendment.
6. Should the Bill delete reference to confidential imancial disclosure statements being
filed by members of Boards and Commissions?
Bill 39-14 eliminated the use of a confidential financial disclosure statement and a limited
public financial disclosure statement at the request ofthe State Ethics Commission. All statements
are now public. Section 19A-17 lists who must file a financial disclosure statement. Members of
3
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the Board of Appeals, the Ethics Commission, the Fire and Emergency Services Commission, the
Board of License Commissioners, the Revenue Authority, the Housing Opportunities
Commission, and the Merit System Protection Board are expressly listed as mandatory filers in
§19A-17. Section 19A-17(c)(2) also requires "any paid member of any board, commission, or
committee of County government, and any other member of a board, commission, or committee
of County government who the Chief Administrative Officer designates" to file a public financial
disclosure statement.
However, Bill 39-14 did not remove the existing provisions requiring members of the
Cable and Communications Advisory Committee, the Cable Compliance Commission, and the
Advisory Board for the Montgomery Cares Program to file either a confidential statement or a
limited public statement. Staff Amendment 1 would delete the requirement that members of these
3 boards file either a confidential or limited public statement. The result ofthis amendment would
be to permit the Chief Administrative Officer to decide if members of these boards should file a
public statement in the same manner that the CAO must decide whether to designate members of
other unpaid boards that are not expressly required to file in § 19
A-17.
In the alternative, the Committee may decide to list one or more of these boards as
mandatory filers in §19A-17.
Committee recommendation
(3-0): amend the Bill with Staff
Amendment 1 and authorize the CAO to decide if these board members should file.
This packet contains:
Expedited Bill 49-15
Legislative Request Report
September 21 Letter from Assistant General Counsel Thompson
Staff Amendment 1
Ethics Advisory Opinion 11-04-002
F:\LAW\BILLS\1549 Ethics Update\Action Memo.Docx
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Expedited Bill No. ---:;:4..:::.9--!.15:::.-.._ _ __
Concerning: Ethics - Update
Revised: January 28,2016 Draft No.
L
Introduced:
December 31, 2015
Expires:
June
1,
2017
Enacted: _ _ _ _ _ _ _ __
Executive: _ _ _ _ _ _ _ __
Effective: _ _ _ _ _ _ _ __
Sunset Date:
---"NC!.!o::!.:n~e
_ _ _ _ __
Ch. _ _, Laws of Mont. Co. _ __
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
Lead Sponsor: Councilmember Leventhal
AN EXPEDITED ACT
to:
(1)
revise certain provisions ofthe County Ethics Law governing conflicts of interest and
financial disclosure to meet certain requirements of State law; and
(2)
generally update and amend the County Ethics Law.
By amending
Chapter 8A. Cable Communications
Sections 8A-30 and 8A-31
Chapter 19A, Ethics
Sections 19A-8, 19A-13, and 19A-19
Chapter 24. Health and Sanitation
Section 24-50
Boldface
Underlining
[Single boldface brackets]
Double underlining
[[Double boldface brackets]]
* * *
Heading or defined term.
Addedto 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.
49-15
1
2
Sec. 1. Sections SA-30. SA-31, 19A-S, 19A-13, [[and]] 19A-19. and 24-50
are amended as follows:
SA-30. Cable and Communications Advisory Committee.
(a)
Established. The Cable and Communications Advisory Committee
may provide advice and recommendations to the County Executive,
County Council, and the Department of Technology Services on all
telecommunications issues, including the administration ofthis Chapter
and any franchise agreement or application.
(b)
The Advisory Committee should meet quarterly or more frequently if
requested by the County Executive or County Council or ifthe Chair or
Committee finds it necessary.
(
c)
3
4
5
6
7
8
9
10
11
12
13
The Advisory Committee must have 15 voting members appointed by
the Executive and confirmed by the Council for 3-year terms. The
members should broadly represent technology areas.
14
15
(d)
The membership must include one representative selected by the
Montgomery County Chapter of the Maryland Municipal League; one
representative selected by the City ofRockville; and one representative
selected by the City ofTakoma Park. The members annually must elect
the chairperson and vice chairperson of the Committee. A person must
not serve more than 2 consecutive terms as chairperson.
16
17
18
19
20
21
22
(e)
Members are subject to Chapter
19A
[[,
except that financial disclosure
statements are confidential and limited to communications-related
activities and interests]].
23
24
SA-31. Cable Compliance Commission.
(a)
Established.
25
The Cable Compliance Commission is established to
26
adjudicate subscriber complaints involving customer cable service and
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ExPEDITED BILL
No. 49-15
27
other consumer protection claims that arise under this Chapter, any
regulation adopted or franchise agreement approved under this Chapter,
or Section ll-4A.
(b)
Membership.
The Commission is comprised of 5 voting members
28
29
30
31
32
33
34
35
36
37
38
39
appointed by the County Executive and confmned by the County
Council. Each appointee must be appointed to a 3-year term. The
Commission should include:
(1)
(2)
(3)
(4)
(c)
a cable television service subscriber;
a broadband Internet service subscriber;
an individual with general business experience; and
an individual with technical experience in communications.
Officers.
The Commissioners annually must elect a chair and vice chair
of the Commission.
An individual must not serve more than 2
40
41
consecutive terms as chair.
(d)
(e)
Reserved.
Ethics.
Each member of the Commission is subject to Chapter 19A [[,
except that the member must file a limited public financial disclosure
statement regarding any communication-related activities and interests
and a full confidential fmancial disclosure statement]].
19A-8. Waivers.
42
43
44
45
46
47
*
(c)
*
*
48
49
After receiving a written request, the Commission may Waive the
prohibitions of Section [19A-13] 19A-13(b) ifit finds that:
(l)
failing to grant the waiver may reduce the ability of the County to
hire or retain highly qualified public employees; or
f:\law\bills\1549 ethics update\bill4.docx
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51
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ExPEDITED BILL
No. 49-15
52
53
54
55
(2)
the proposed employment is not likely to create an actual conflict
of interest.
*
(a)
*
*
19A-13. Employment
of former
public employees.
56
57
58
59
A former public employee must not work on or otherwise assist any party,
other than a County agency, in a case, contract, or other specific matter
[for 10 years after the last date] ifthe employee significantly participated
in the matter as a public employee.
60
61
62
63
*
19A-19.
*
*
Content of financial disclosure statement.
(a)
Each financial disclosure statement filed under Section 19A-17(a) must
disclose the following:
64
65
66
*
(8)
(A)
*
*
Sources ofearned income.
The statement must list the name and address of;.
67
ill
(ii)
each employer of the filer, other than the County
Govemment[,];
[or a] each employer of
immediate family[,].;. and
~
68
69
member of the filer's
70
71
(iii)
each business entity of which the filer or a member
of the filer's immediate family was a sole or partial
owner and from which the filer or member of the
filer's immediate family received earned income at
any time during the reporting period.
72
73
74
75
76
77
*
*
*
[(C) Ifa source ofearned income and the filer have a confidential
relationship which creates a privilege against testifying
f:\law\bills\
1549 ethics updatelbill 4.docx
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ExPEDITED BILL
No. 49-15
79
under state law, the filer need not report the identity of the
source unless the source:
(i)
is registered or must register as a lobbyist on a matter
that is or could be considered by the County agency
with which the filer is affiliated;
(ii)
does business with the County agency with which the
filer is affiliated;
(iii)
owns or operates a business that is regulated by the
. County agency with which the filer is affiliated; or
(iv)
has an economic interest that is different from the
public interest, which the filer may substantially
affect in performing the filer's official duties,
in which case the identity of the source must be disclosed
confidentially to the Commission in a manner prescribed by
the Commission.]
80
81
82
83
84
85
86
87
88
89
90
91
92
93
94
95
*
*
*
24-50. Members; appointments; terms.
(a)
(b)
96
97
Total members.
The Board has 17 members.
Ex officio members.
Subject to confmnation by the County Council, the
County Executive should appoint the following individuals to serve as ex
officio members of the Board:
(1)
(2)
The County Health Officer or Officer's designee; and
The Chief of the Department's Behavioral Health and Crisis
Service or the Chiefs designee.
98
99
100
101
102
103
104
105
(c)
Other members.
Subject to confinnation by the County Council, the
County Executive should appoint the following individuals to serve on
the Board:
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EXPEDITED BILL NO.
49-15
106
107
108
109
110
111
112
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114
115
116
117
118
119
120
121
122
123
124
125
126
127
128
129
130
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132
(l)
2 representatives of community health care providers that
participate in the Program;
(2)
1 representative ofhospitals that participate in the Program;
(3) The chair ofthe Board ofDirectors ofthe entity that contracts with
the Department to administer the distribution of funds for the
delivery ofProgram selVices or the chair's designee;
(4) 3 members of the public;
(5) 3 individuals who have knowledge of and experience with issues
relating to health care for uninsured individuals such as primary
care, specialty care, dental care, behavioral health care, or fiscal
matters relating to any ofthese types of care;
(6)
(7)
1 representative of the Commission on Health;
1 representative of the County Medical Society;
(8) 2 current or former recipients of selVices under the Program; and
(9)
1 representative from a Managed Care Organization who is
familiar with Medicaid and insurance issues affecting low-income
popUlations.
*
(f)
Coriflicts ofInterest.
*
*
(1)
Section 19A-ll(a) does not apply to a member appointed under
subsection (c).
(2)A member appointed under subsection (c) must [[:
(A) file a limited public financial disclosure statement that
complies with Section 19A-17(a)(6); and
(B)]] publicly disclose to the Board the nature and circumstances
of
any
conflict
before
voting
on
any
Board
recommendation.
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ExPEDITED BILL
No.
49-15
133
134
135
136
137
138
Sec. 2.
Expedited Effective Date.
The Council declares that this legislation is necessary for the immediate
protection ofthe public interest. This Act takes effect on the date on which it becomes
law.
Approved:
139
Nancy Floreen, President, County Council
Date
140
Approved:
141
Isiah Leggett, County Executive
Date
142
This is a correct copy ofCouncil action.
143
Linda M. Lauer, Clerk ofthe Council
Date
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LEGISLATIVE REQUEST REPORT
Expedited Bill 49-15
Ethics
-
Update
DESCRIPTION:
PROBLEM:
GOALS AND
OBJECTIVES:
COORDINATION:
FISCAL IMPACT:
ECONOMIC
IMPACT:
EVALUATION:
EXPERIENCE
ELSEWHERE:
SOURCE OF
INFORMATION:
APPLICATION
WITHIN
MUNICIPALITIES:
PENAL TIES:
Expedited Bill 49-15 would make several amendments to the County
Ethics Law to conform to the State Ethics Law.
The State Ethics Commission found that several amendments were
necessary to conform to the State Ethics Law.
Approval of the County Ethics Law by the State Ethics Commission.
County Ethics Commission, County Attorney
To be requested.
To be requested.
To be requested.
To be researched.
Robert H. Drummer, Senior Legislative Attorney
Not applicable.
Class A Violation
F:\LAw\BILLS\1549 Ethics Update\LRR.Docx
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EXECUTIVE DEPARTMENT'
STATE OF
~YLAND
COMMlSSIONMEMBERS:
PAULM.
YJ;T!OR!;
Cltairm(Wl
KIM COBLE
lANI::TE. MCHUOIl
JACOB YOSEF :MILlMAN
STATE
ETmcs CQMMISSlON
45
CALVERTSTUET,~DFLQOR
ANNAPOLI~MARVLANDlt401
'MICH:AEL W. LORD
~""~;DlreJ;~
JENNIFER
C
bLUa.u\
ToltFne
1-8174i(i~
FAX: 4t0-2(1O..7147 ..
41o..~7710
.KA~P.,
Taffi.-fPSON
~14nI~alC~l
Sfqff.....
~
,..
l/~OLQUHOUN
September
21,
2015
Boh
Drurmner
Senior Legislativ.e
Attorney
MontgQrneryCounty Council
'I
00 Maryland
A~ue,
S.nFlqor
Rockvillt\ Matylartd208S0
Re:
Montgomery Co@ty EthitsLa,w
Dear'Mr.Ilt1rounet:
At
ItsS~Det
10,
2015
meeting~
tbeState Ethics
ColmnissiOn("Ctmnm.$$iOil")
reviewed
tberecentlysub:mi~
MontgOJner,yCi>unty
B~s4w. TheC()~ission
teVjewedthe
blwlncompIiance with
Subtitle
8 of
the.Maryland
Publie~tbics
Law{MriCodeAnn.,
Oea.PJ:olv~
Title 5(2014)).
After
careful
reviewof;theethics
law~
the
Commissi011
didnot:~thEtJ.w
as compliatttwith
SU,bti:tk
,8
of
dte
PUbljcEtbi9s
Jaw
aIld·
CQMAR .191\.04
fotthe
folloWing
1.
Section
19A..a~a.WaiV«.ptQVi$iOn;t1)atJllloW$
the
COUrltYEthics
CO:ntmission
to
waive.
the
pt:Qm"bi~n
,of
~ RQ$t~loymentteSb;ictiolls.
'll1¢1"els
t10'SlM:h
waive.r
~ns!
,provlsiOl1in
~S~Publicl3thi:~UW;
2.
The
post.oemploymentFovi$iooS
of
Secli9A
19A..13
oontam4
1
O~
fitXl:it,
~,PuJ;;lic
Ethics
Law
has.tlQ
time litnit,
3$
thei'~ctiofisbould
beirleff'ectfof
tbeduration.ofthe
~case·
~....
Conftaet;,
.9IBpeC;
{fic
tnatter».
"
..... ,. '
3,.
the,gjftpro~m~l~aJ11UVisi()n1batprohibitsthe ~pt$lce
ofagift from
any
restrlcteddonor whichineludes business entitiestbatare dQingbusiness
witbthe
.city.
The
Public
EthiC$.La:w~s th~provisi011 be~~edto~~~~titl~ that>~
aJsos¢eking
tp
do
bU$iness
with
the
County
to
capture,
rorex-ample?
busmessentities
bidding
on a CountY'project;
4.
The,~nacted ~W ~l(J~proVisians
fot
disqloS\li'e'ofsOUt@SQf
eamed·incom.e
provide
that
th~
stat¢ment
trlU$tll$t
th¢ttatPeai)daddre$s
ofe8cbeltlployetO.f~flJettor
a
memberofth~
filer'
sinunediate
famitY~The
Public BthicsLawreCpUl'es
both,
th¢ftler
and
the filer's
itntnedia'te t'alnily
tQdiscfo~theirernployer.Ba$Cd01i
our
conversatiOi1S~
itis
oUr understanding
tha.t
walSth.ein~t()fthe
laWand
ihe
"or"
wasa'typO~
Condud
StSiK#.Utl64
f)/St/oSliie
~
LObbyist
Rfigultitkin
.
_!.Deal
Go~t~fs. ~.iJfNiCfJ
f
.' .
Eitfotcement
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5. The
enacted financial
discloSllJ'eprovislon$for
di$elosure
()f
SQQ.tCeS
of~ ~
providesexeeptions for disclosing.
earned·incontesourcegifthe
$plo~
and
the
filet
have a confidential relationsbipwbich.creates a privilege.
'I'b,e
Public Ethics
Law
does
not
have
this
exceptionbeeauseitwouIdnot
tequire~
for eumple,a soloptaCtice attorney
to
listms,individual
income
$()~by
client name,
but
instead would
simply·~
the
disclo~ofthe
practice'sname.
The
Commission~.s
review of
MOntgomery
County~s.propo~ ~.lawwasin.~
with
SUbtitle 8
an4CO~
19A.04.01.
hi~t
to
be
approVed,
~.
provision
shoUld.
be antended
totefle¢tthe
changes indieated above.
the
provisions..
in
their
.CUITent
fann
ate
not
at.least
eqUivalent for
local
elected
officials orshnilar for employees
and
appointed
officialS
asi'eQuited
by
Subtitle 8
and
OOMAR
19A,04.
Ifrequested,we are
happy
to
provide in electronic form, the
model
law language suggested
by
the
Gommission.
The:temainblSfinancial disclosure
~t$
31ldeQnfliet
ofinte~t.pro~for
lQeal
electedoffici~
local
appointed.
officials
and
local
employees:
meet
therequiremelitsofSubtitle
8
of
the
Public Ethics
Law
andC()MA.R J9A.04
and
are
eppt'Qvt=O..
by .
th,e
C()ttlmi$sioo.Tlte
C.o~sion·$
ne1rtmeeting$arescheduled
fot
Octo.ber
22,
2015
.an4Deeembct
17) 201
s·;
Please
provide a letter to
the
Coounission
iii
advance
ofone
of
the
meetings
detailing
the
actions
that
Montgomery Courityhastaken,
or
plans
to
.tak~in
this
.tna.tter.lf
other
te:vis!oll$
to
the
ethic$
law
are
~rafted
or enacted,.
pleaSe.forward.
·that.
to
theC011UlliSsion
f()t.
review.
and
approval..
The
Comn'lisSion
will
review
that
infotnli'ftion in
otdet
toevaluaiewbetherMOntgometY
Countyu
makingprogressorgoocifaithefiorts toward compliance
with
the
req~estab1iShed
by
the
Maryland
Genent)
Assetnbly
in tbePqi>1ic
Etbi~
Law.
Please
oontactme
ifyou
have
any
qu~ons.
lloolc- forwardio
recdving
an
updf4e·:ijupl
YOU
reSat'4ing
.Morttg9Jnety
CountY~$
progreS$
in·t;bis
mattei'.
..
.
S~lYJ
~P.~
Katheri:neP.
'fhom,pson
Assistant.
Ge~ C9'Qru!~1
C6nd~
Standards
."
DisclOsure
,
LobbytSt
R~uJatJorj
f
LocalGovtNt1inent RequifetrientS,Advice
:.
Enro~nt
.
®
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Staff Amendment 1 - Financial Disclosure for Boards and Commissions
Add the following after line 1:
8A-30. Cable and Communications Advisory Committee.
(a)
Established. The Cable and Communications Advisory Committee may provide
advice and recommendations to the County Executive, County Council, and the
Department of Technology Services on all telecommunications issues, including
the administration of this Chapter and any franchise agreement or application.
(b)
The Advisory Committee should meet quarterly or more frequently if requested by
the County Executive or County Councilor if the Chair or Committee fmds it
necessary.
(c)
The Advisory Committee must have 15 voting members appointed by the Executive
and 'confirmed by the Council for 3-year terms. The members should broadly
represent technology areas.
(d)
The membership must include one representative selected by the Montgomery
County Chapter of the Maryland Municipal League; one representative selected by
the City of Rockville; and one representative selected by the City of Takoma Park.
The members annually must elect the chairperson and vice chairperson of the
Committee. A person must not serve more than 2 consecutive terms as chairperson.
(e)
Members are subject to Chapter 19A [[, except that financial disclosure statements
are confidential and limited to communications-related activities and interests]].
8A-31. Cable Compliance Commission.
(a)
Established.
The Cable Compliance Commission is established to adjudicate
subscriber complaints involving customer cable service and other consumer
protection claims that arise under this Chapter, any regulation adopted or franchise
agreement approved under this Chapter, or Section 11-4A.
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(b)
Membership.
The Commission is comprised of 5 voting members appointed by the
County Executive and confirmed by the County CounciL Each appointee must be
appointed to a 3-year term. The Commission should include:
(1)
(2)
(3)
(4)
(c)
a cable television service subscriber;
a broadband Internet service subscriber;
an individual with general business experience; and
an individual with technical experience in communications.
Officers.
The Commissioners annually must elect a chair and vice chair of the
Commission.
An
individual must not serve more than 2 consecutive terms as chair.
(d)
Reserved.
Ethics.
Each member of the Commission is subject to Chapter 19A [[, except that
(e)
the member must file a limited public financial disclosure statement regarding any
communication-related activities and interests and a full confidential financial
disclosure statement]].
Add the following at the end ofSection 1:
24-50. Members; appointments; terms.
(a)
(b)
Total members.
The Board
has
17 members.
Ex officio members.
Subject to confirmation by the County Council, the County
Executive should appoint the following individuals to serve as ex officio members of
the Board:
(1)
The County Health Officer or Officer's designee; and
The Chief of the Department's Behavioral Health and Crisis Service or the
Chiefs designee.
(2)
(c)
Other members.
Subject to confirmation by the County Council, the County
Executive should appoint the following individuals to serve on the Board:
(1)
2 representatives of community health care providers that participate in the
Program;
(2)
1 representative of hospitals that participate in the Program;
2
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(3)
The chair of the Board of Directors of the entity that contracts with the
Department to administer the distribution of funds for the delivery ofProgram
services or the chair's designee;
(4)
(5)
3 members ofthe public;
3 individuals who have knowledge of and experience with issues relating to
health care for uninsured individuals such as primary care, specialty care,
dental care, behavioral health care, or fiscal matters relating to any of these
types of care;
(6)
(7)
(8)
(9)
1 representative ofthe Commission on Health;
1 representative ofthe County Medical Society;
2 current or former recipients of services under the Program; and
1 representative from a Managed Care Organization who is familiar with
Medicaid and insurance issues affecting low-income populations.
*
(f)
*
*
Conflicts ofInterest.
(1)
Section 19A-ll(a) does not apply to a member appointed under subsection
(c).
(2)
A member appointed under subsection (c) must [[:
(A)
file a limited public financial disclosure statement that complies with
Section 19A-17(a)(6); and
(B)]]
publicly disclose to the Board the nature and circumstances of any
conflict before voting on any Board recommendation.
F:\LAW\BILLS\lS49 Ethics UpdatelStaffAmendment 1.Docx
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MONTGOMERY COUNTY ETHICS COMMISSION
Advisory Opinion
11-04-002
Section 19A-13(a) of the ethics law provides that a former employee "must not work on or
otherwise 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." A former employee who significantly participated in a series of lease
agreements with a developer that were signed in 2002, but impose continuing obligations, asks
whether he can work for that developer so long as he does not work on those agreements. The
Commission concludes that the former employee must not work on or assist the developer with
the implementation of any obligation flowing from the scope of work of those agreements
without first obtaining a waiver from the Commission.
The former public employee left County employment in December of2006.ill During his
employment he significantly participated in a series of lease agreements between the County and
a developer. The Commission understands that although those agreements were signed in 2002,
they impose obligations that continue to this day.
Section 19A-13, entitled "Employment of former public employees," states as follows:
(a) A former public employee must not work on or otherwise 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.
***
(c) Significant participation means making a decision, approval, disapproval, recommendation,
rendering of advice, investigation, or similar action taken as an officer or employee. Significant
participation ordinarily does not include program or legislative oversight, or budget preparation,
review, or adoption.
The Commission "has narrowly interpreted
§
19A-I3(a), given its proscription against working
on the same 'specific matter' and its relatively harsh IO-year prohibition."
AO 07-11-020
(Johnson, Feb. 8, 2008). Thus, the Commission has permitted former public employees who
significantly participated in matters to work for someone else on related matters, so long as they
were not the same specific matter.
See AO 03-015
(Kellar, Apr. 8,2003) (former County
employee could work for company conducting inventory of bus stops (specifically including
recommendations for capital improvements to bus stops having safety concerns) although duties
as a public employee included planning bus service, recommending route changes, and
community outreach);
AO 03-016
(Kellar, May 15, 2003) (former County employee could work
for County contractor on DHHS' budget applications although duties as a public employee
included work for DIST on budget applications);
AO 07-11-020
(Johnson, Feb. 8,2008) (former
County employee could service County bank account as president and CEO of the bank although
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duties as public employee included responsibility for management ofthe account when it was at
a different bank).
The State Ethics Commission has similarly interpreted a similar prohibition in the State ethics
law. Md. Code Ann., State Gov't
§
15-504(d), prohibits a former employee from assisting or
representing a party other than the State in any matter involving the State if the matter is one in
which he or she participated significantly while an employee. The State Ethics Commission
interpreted that provision most recently in
Opinion No. 07-01
(Mar. 8,2007). In that case, the
requestor was the Executive Director of the Pen Mar Development Corporation (pMDC). PMDC
was created in response to the Base Closure and Realignment Commission laws. Those laws
called for the creation of local redevelopment authorities to facilitate the sale and private
economic development of military installations designated for closure. Ft. Ritchie in Washington
County, Maryland was one such installation. A developer bought Ft. Ritchie from PMDC in
October 2006 for $9 million pursuant to a
(1)
July 26, 2004, purchase and sale agreement and (2)
November 12, 2004, development agreement with PMDC. The requestor sought an opinion from
the State Ethics Commission regarding his ability to work for the developer as its on-site
representative.
The State Ethics Commission found that the requestor significantly participated in the 2004
agreements, which transferred Ft. Ritchie to the developer, although he did not have final
approval authority on those agreements. The next issue was determining the scope of "the
matter" in which the requestor significantly participated. The State Ethics Commission wrote
that this determination turned on whether the two matters involved "the same basic facts, related
issues, the same or related parties, time elapsed, the same confidential information, and the
continuing existence of an important government interest." The State Commission wrote:
We have addressed the concept of "matter" taking in to account substantial federal case law
relating to similar federal requirements. In Opinion 97-11, we discussed factors to be considered
in determining whether the matter is the same matter:
... The resulting basic criteria that we have considered in applying this provision are whether a
matter involves the same matter as a previous activity, whether it involves "the same basic
facts, related issues, the same or related parties, time elapsed, the same confidential
information, and the continuing existence of an important [government] interest." As a
partiCUlar example, in a 1987 enforcement matter (which was sustained by the Court) the
Commission concluded that a property tax assessment for one year in which a former supervisor
of assessments did not participate was nevertheless the same matter as a prior year assessment,
since the key issue being contested by the former employee was one where he had been
instrumental in the initial policy development.... (Emphasis added.)
We recognize that the Requestor's situation is somewhat atypical in State government. PMDC
was created and exists to accomplish a long-term objective involving the full economic
development of the Ft. Ritchie property. The project could easily extend over 25 years. The
Requestor suggested that the current PMDC "matter" was the planning process that resulted in
the transfer and sale of the property to the Developer. He also suggested that the actual
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redevelopment of the property would be "new" matters that should not disqualify him from
considering employment with the Developer.
We have very carefully reviewed and considered the facts of this matter.... The 2004
Agreements create financial and development obligations that have survived the actual transfer
ofFt. Ritchie to the Developer and may continue for many years. The Development Agreement
requires the Developer to spend $7.5 million on development and construction within 5 years or
the property will transfer back to PMDC. There is a job creation requirement that could reduce
the purchase price up to $4 million in nine years. The Developer is required by the PMDC
approved development plan to complete work for an historical area, a general and restrictive
business area, and a residential area. The Developer must also provide periodic reports to PMDC
on the progress ofthe development and jobs created on site. PMDC also has responsibilities
related to monitoring of the Developer's activities pursuant to the BRAC requirements that will
continue for at least seven more years.
It
must also spend the funds it has accumulated (from the
sale and the prior leasing of the property) for the benefit of the project. In this regard, PMDC and
the Developer have discussed a joint effort to develop a community center on the property.
Having determined that "the matter" was the 2004 agreements, the State Ethics Commission
concluded that the State ethics law prohibited the requestor from being employed by the
Developer to assist in any activities ''that flow from the 2004 Agreements."
Therefore, the Requestor may not oversee the proposed development activities that were
promised in the Development Agreement, including the demolition projects and the new
construction infrastructure projects. Nor could he market the property to potential tenants related
to the development plan or manage environmental issues that may be part of the Developer's
new obligation to comply with the Corporation's agreements with the United State Army and the
State Historic Preservation Officer. Neither could he represent the Developer on the board of
directors for the community center that was part of the Fort Ritchie Development Plan proposed
by the Developer and approved by PMDC.
Therefore, we advise that the Requestor's proposed employment as the Fort Ritchie on-site asset
manager or owner's representative for the Developer would be prohibited by the post­
employment provisions of §15-504(d) of the Ethics Law. We note that, as discussed above, the
Ethics Law does not generally prohibit all affiliations with entities involved with one's former
agency. Other assistance or employment by the Requestor with the Developer that does not deal
with the activities proposed or anticipated by the 2004 agreements at Ft. Ritchie would not be
barred.
The State EC also wrote that the Developer "could hire the Requestor to market its development
capabilities to other BRAC sites nationally. He could also serve on the Museum Board of
Directors that was not part of any agreement prior to the transfer."
In this case, the former public employee significantly participated in a series of lease agreements
with a developer that were signed in 2002. Those lease agreements are the "case, contract, or
other specific matter" under § 19A-13(a). Because the Commission understands that those
agreements impose continuing obligations, the former employee cannot work on or assist the
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developer with the implementation of any obligation flowing from the scope of work of those
agreements.ill The fonner employee's request seeks to work for the developer on "ongoing
operational issues" including "security, safety, maintenance, tenants, regional development,
special events, and county facilities." The fonner employee cannot work on those ongoing issues
to the extent they flow from the scope of work ofthe agreements. This prohibition ends 10 years
after the fonner employee last significantly participated in the matter as a public employee.
In reaching this decision, the Commission has relied upon the facts as presented by the requestor.
FOR THE COMMISSION:
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Date: June 22,2011 Nina Weisbroth, Chair
[1] The fonner employee is not categorically precluded from working for the developer under
§
19A-13(b) because it has been well over one year since he left County employment.
[2] In his request, the fonner employee stated that he would not "be working on the legal
agreement between the County and [the developer] or any case or specific matter involving the
County and [the developer] that I worked on as [a County employee]."