GO Item 4
January 28, 2016
Worksession
MEMORANDUM
January 26, 2016
TO:
FROM:
SUBJECT:
Government Operations and Fiscal Policy Committee
Robert
H.
Drummer, Senior Legislative
AltDme~
Worksession:
Expedited Bil149-15, Ethics - Update
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.
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 of the 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 confonn
it
to
the State law in every detail.
Bil139-14, Ethics - Amendments, enacted by the Council on July 21, 20
IS,
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 confonn to the State Ethics Law. On September 10,
2015, the State Ethics Commission reviewed the County Ethics Law, as amended by Bil139-14,
and concluded that it confonned to the State Ethics Law with several minor exceptions. See the
letter from Assistant General Counsel, Katherine Thompson dated September 21, 2015 attached at
©5-6. Bill 49-15 would amend the County Ethics Law to satisfY the State Commission's concerns.
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The Amendments
1. Eliminate authority to waive Section 19A-13(a).
Section 19A -13{a) states that:
(a) A fonner 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.
2. Remove the 10-year time limit on the prohibition
in
§19A-13(a) stated above.
The State law prohibition on this
type
of post-employment does not contain a 10-year time
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.
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
defmes "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 confonn to the State Law.
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.
2
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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.
6. Should the Bill delete reference to confidential fmancial 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
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 ofthese
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 § 19A-17.
In
the alternative, the Committee may decide to list one or more of these boards as
mandatory filers in §19A-17. Council staff recommendation: 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
F:\LAW\BILLS\) 549 Ethics Update\GO Memo.Docx
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Expedited Bill No. _4=9..... 5_ _ _ __
-1....
Conceming: Ethics - Update
Revised: November 4. 2015 Draft No.
L
Introduced:
December 31.2015
Expires:
June 1. 2017
Enacted: _ _ _ _ _ _ _ _ __
Executive: _ _ _ _ _ _ _ __
Effective: _ _ _ _ _ _ _ _ __
Sunset Date:
-,N=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 of the 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 19A, Ethics
Sections 19A-8, 19A-13, and 19A-19
Boldface
Underlining
[Single boldface brackets]
Rguble 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 unqlJected by bill.
The County Council for Montgomery County, Maryland approves the following Act:
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ExPEDITED Bill
No. 49-15
1
Sec. 1. Sections 19A-8, 19A-13, and 19A-19 are amended as follows:
19A-8. Waivers.
2
3
4
5
*
*
*
(c) After receiving a written request, the Commission may waive the
prohibitions of Section [19A-13] 19A -13(b} if it finds that:
(1) failing
to
grant the waiver may reduce the ability of the County to
hire or retain highly qualified public employees; or
(2) the proposed employment is not likely to create an actual conflict
of interest.
6
7
8
9
10
11
12
13
14
15
16
17
18
19
*
*
*
19A-13. Employment of former public employees.
(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] if the employee significantly
participated in the matter as a public employee.
*
19A-19.
*
*
Content of financial disclosure statement.
(a)
Each financial disclosure statement filed under Section 19A-17(a) must
disclose the following:
20
21
*
*
*
(8) Sources ofearned income.
(A) The statement must list the name and address
0:(;.
22
23
24
25
ill
(ii)
each employer of the filer, other than the County
Govemment[,]~
[or a] each employer of
immediate
family[,]~
and
~
member of the filer's
26
27
(iii)
each business entity of which the filer or a member
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ExPEDITED BILL
No. 49-15
28
29
30
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.
31
32
33
*
*
*
[(C) If a source of earned Income and the filer have a
confidential relationship which creates a privilege against
testifying under state law, the filer need not report the
identity ofthe source unless the source:
(i)
34
35
36
37
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;
38
39
40
41
(ii)
does business with the County agency with which
the filer is affiliated;
42
43
44
(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,
45
46
47
48
in which case the identity of the source must be disclosed
confidentially to the Commission in a manner prescribed
by the Commission.]
49
50
51
52
53
*
Sec. 2.
Expedited Effective Date.
*
*
The Council declares that this legislation is necessary for the immediate
protection of the public interest.
becomes law.
f:lJaw\bills\
1549 ethics
update'bill 3.docx
This Act takes effect on the date on which
it
54
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LEGISLATIVE REQUEST REPORT
Expedited Bill 49-15
~thics
-
[TJ1liate
DESCRIPTION:
PROBLEM:
GOALS AND
OBJECTIVES:
COORDINATION:
FISCAL IMPACT:
ECONOMIC
IMPACT:
EVALUATION:
EXPERIENCE
ELSEWHERE:
SOURCE OF
INFORMATION:
APPLICATION
WITHIN
MUNICIPALITIES:
PENALTIES:
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\I549 Ethics Update\LRR.Docx
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EXECUTiVE DEPARTMBNT·
STAl$OF MARYLAND
STATE ETHICS COMMISSION
45 CALVERT S"IliEET )JtD:FLOOR
ANNAPoLIS,
MARvi.AND214l1
410-~771O
Toll
'reel..J11~
E.AXt 410,.260,.7747
J{$~Ge_lilC~l
.·P. THOMPSON
'Septetnber2l,201S
BobDrtumner
100
Maryl~d A~ue.
StftFlqOr
Roo1cvill~
Senior Legislative Attorney
Montgomery
County
Council
Matyhmd20850
R~:
Wontgpjt1ery
Cot.1JltY
Ethics
Law
Dear,Mt.
Drummer:
At itsSeptembet 10,
20tS
meeting.
the·
'State
BtbicsCOllllllis$ion (''Conuni'ssion'')
reviewed the
recently
submitted
Montgomery
County
Ethle.slJ}w.
~.·C~ssi~ teview~the
law incompliance
with
Silbtit1e 8
of
the Maryland PublieBthicS
Law
(Md.
code:
Atm.,
Gen..
:Prov.
Title 5 (2014»).A1ter
careful.re'View ofthe ethics
Jaw",
the
Conunission
did
nQt~ve~'l~w
as
¢Ompliantwith
Subtitle 8
of
dIe
Public
Ethipslaw
and
C0MA.R, 19A.04
for
the
foUmving
,NaSOnS!
1. Section 19A-8
~
a waiver
provimon.®It allo'WS the·County·BthicsCornmissionto
waivetbe Pl'Qhibjtionoftb,e
pQ$t~ployment
reStriction,s.
Tb¢reis
tlOsuch
vvalvet
provision,
in
·theSttne~liCEtldCs.UW.i
2.
the
post.oemploymet1tp1'OvisionsofSecti~1119A-lloontaitt
a
10'
y.
tim~t
The,PubIic
Ethics
Law
has
00
time Urnit,
a$thet¢Strl~iOfishould ~ illt~ffectfot
the
duration ofthe
"cast\.
CQnttact·Qtspecific
~f'~
3,..
Thf!.gJftPtovisiOnsmel~.pmltisionthat
prohibits
the
acceptance
ofagift from
any
res:tricteddonor
wruehincludes
business entitiestbatare doing business
With..
the
city.
The
PublieEtbics
Lawrequite$tl)atprnvisicm
be
.e~to 'l>us~., enti.ti~thatare
alsoseekillg tQdobll$ii1ess
with
the
County to.captUre, for example, business entities
bidding
on a
County project;
4. 1beeneqted
fb:umclartU~lQsure.provisions
for disGIOstireofSOUrtesQfearned
lnoOOle
provid.etbatthe
~t
must 1i$tthe
nante··~
address
of~employeroftbetilet,
or
a member·ofthe titer'sinunediate
fanilly.
The.
Public
Ethl~sLawtequireS
both,
the
met
and
.the.
filer's itntnediate family
t(Hiisclose
tileirernployer.
Based
on
our
conversations,
itis ourtlllderstanding
ttlat·
Wll$t1le.infeJltof.the
law
and
the
Io'or"
was
a
'typo;.
®
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5~
The
enacted financialdisclosureprovisions
for
~l()sure QtSQ~ot'~ ~
provides.
exceptions
fur
disck>siDg.eamedinc<>me$)un:esif~~~and··tbe
•.
nt~
have aoonfidentia1.telationBbip
which.~
a priVilege.
~J\tblicl!ddcs
lAwdoe$
not
have
tbisex~beeause,itwnuld.not~for
examp1e.a$Olo
,p1'8.Cticeattomey
to
fiat
lUs:individual
inootne
.$O~bycl~nmne,butlnste8dwoUld
s.Pnply
~ll~Jhe
,.&_-1
.
.
'.
..
$ClosQl~rof
UK:.
pllCtiCe
S
name.
.
The.Cotnmissioll~S
review
ofMontg()meryCounty'$ptQpo~ ~l8;W
WIls;m
~~
c....
.. . .
SUbtitle
a
tu"Y .... ' . '.' ' . .... ,
.....
..ICOMAR
19A.04.62.bi0t4ermbe
~p
ro~-.{
theSe
p.
.. '.
.
Y,"",", " ....
rovision
sho
lildbeamended
".
.
.
tO~the¢hangesindicated
above.
The
provisions.in their
~.
foan
;ateoot
at.least
Divalent
'·1 .
. ... .' .
.·!iDtedoffi~,.."".as···
.··uited
e q .
for
loeal.;.t .........
..s
offidals
or
..:....
n......
ror
etnpoy
ees
and.
~"
. . ..
,~req.
."
J;iJAiWU.. '.
~
by
Subtitle 8
'ami
COMAR 19A.04.
Ifrequest«i, we are
happy
to
provide. in.electronic fo_the
m()dellawl~suggestedby
theComrni$Sion.
.
.
wi:tb
.
Thetemaihin8fmaricla1disclos~~~anti~fli~of~~i(jllSlb.r
loc!ll
elec'tedoffida18,j 10c$l
~mte4
oftlcials
and
1.oetU.'
employees
meet
the
requirements
of
Subtitle
8'
of the .Public Etbics.
Law
and COMAA
J9A.04
and.
llPProy~
by
·.~C~~Otl.The
provide a
lettet to
thc Commission
in
advance
orone ofthemeet1ngs
detaiJiJlg
the
actions
that
Montgomery Courityhastaken, or·
plans
to
~.
in
tbismattet.Jftjthet~istOO$tQth¢etJUc$.
taw
ate
4rafted
or
e~pleaSe"forward thatfbth~C~n fO,trevi~@4approval.
The
CommisSion 'willreview
that
wot:rn.atioll
m.
order'
to .
evaluate
whether"Montgom~
Countyj$'
making progress or..
good
fuitheftorts towanicolllP1iance,
with
the
requUeltlellts$$tabU$hedby
the
Maryl~G¢netal Asseml>Iy~ ~Pqb1ic
EtlUC$
4lw.
"
YO\1
regan.ting
.Montgpthety
(;6utfty'$
PrQ~sinthis
matter.
CQ~~on~$.De)(t~.~~e4f()f~2.2, 20T$~~bet17:t201S.
Please
Please
COllUlCtm.e·ityou have any
cpre.st1~.
nook·
forwa,Td·tQ
~ving
AA
u~·.fi'atn
.
Sincetely,
~P.~
KatherineP.
1'ho~pSQn
AsSiStant
Genenil CQt,lnse!.
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Staff Amendment 1 - Financial Disclosure for Boards and Commissions
Add the following after line
1:
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 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 Council or if the Chair or Committee finds 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 fmandaI disclosure statements
are confidential and limited to communications-related activities and interestsJ].
SA-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)
a cable television service subscriber;
a broadband Internet service subscriber;
an individual with general business experience; and
an individual with technical experience in communications.
(2)
(3)
(4)
(c)
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)
(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 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 Officees 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 offunds for the delivery ofProgram
services or the chair's designee;
(4)
(5)
3 members of the 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 of the Commission on Health;
1 representative of the 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.
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