Agenda Item 4A
December 1,2015
Introduction
MEMORANDUM
November 25, 2015
TO:
FROM:
SUBJECT:
County Council
Robert
H.
Drummer, Senior Legislative
AttOrru!'f!f;f;-­
Introduction:
Expedited Bill 49-15, Ethics - Update
Expedited Bill 49-15, Ethics - Update, sponsored by Lead Sponsor Councilmember
Leventhal, is scheduled to be introduced on December 1, 2015. A public hearing is tentatively
scheduled for January 12,2016 at 1:30 p.m.
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
Stat~
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 conform it to the State law in every detail.
Bil139-14, 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
©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 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.
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 lO-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
defines "doing business with" as:
(e)
Doing business with means:
(l)
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.
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.
This packet contains:
Expedited Bill 49-15
Legislative Request Report
September 21 Letter from Assistant General Counsel Thompson
F:\LAW\BILLS\1549 Ethics Update\Intro Memo,Docx
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Expedited Bill No. ---:4:=:-9-...:.15.:::..-_ _ __
Concerning: Ethics - Update
Revised: November 4.2015 Draft No.
L
Introduced:
December 1.2015
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 ofState 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]
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 unqffected by bill.
The County Council for Montgomery County, Maryland approves thefollowing 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
*
(c)
*
*
4
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 ofthe County to
hire or retain highly qualifIed public employees; or
(2) the proposed employment is not likely to create an actual conflict
of interest.
5
6
7
8
9
10
11
*
*
*
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.
12
13
14
15
16
17
*
19A-19.
(a)
*
*
Content of financial disclosure statement.
Each fInancial disclosure statement filed under Section 19A-17(a) must
disclose the following:
18
19
20
21
*
(8)
*
*
Sources ofearned income.
(A)
The statement must list the name and address
of~
22
23
24
ill
(ii)
each employer of the filer, other than the County
Government[,]~
25
[or a] each employer of
!!
member of the fIler's
immediate
fami1y[,]~
and
26
27
(iii) each business entity of which the fIler or a member
f:\Iaw\bills\1549 ethics update\bill2.doC)(
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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
34
*
*
*
. [(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 of the source unless the source:
(i)
35
36
37
38
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;
39
40
41
(ii)
does business with the County agency with which
the filer is affiliated;
42
43
44
45
(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,
46
47
48
49
in which case the identity of the source must be disclosed
confidentially to the Commission in a manner prescribed
by the Commission.]
50
51
52
*
Sec. 2.
*
*
Expedited Effective Date.
The Council declares that this legislation is necessary for the immediate
protection of the public interest. This Act takes effect on the date on which it
becomes law.
t\law\bills\1549 ethics updatelbill2.docx
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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:
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\IS49 Ethics Update\LRR.Docx
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EXECtmVE DEPARTMENT·
STAl'EOF
~YLAND
COMMlSSION.MEMBERS:
PAuL
M.
V£Tt()RJ;
Chairmtln
STATE
ETHICS
CQMMISSION
45
CALVERT
STREET,)RD
FLOOR
ANNAPOLIS, MARYLANDl14(U
ToU
Free
1-877-669-6085.
FAX; 410-266-7747 .
410-2~7770
KIM COBLE
JANET£. MCHUGH
JACOB
YOSEFMlLIMAN
September
21, .2015
Bob
DrUnnner
SeniorL~gislative
Attorney
MontgoIneryCountyCouncil
·100 MaryllU1d Aven\J.e,
5~·FIQPt
Rockville, Matylmd208:50
Re:
l\4ontgOJnery
COQIltY
Ethics Law
Dear
Mr.
Dnnntlle1':
At itsS¢ptembel' 10,
2015
meeting~
the State Ethics
Conutiissioll
("Commission")
reviewed
the
recently submitted
MOJltgomeryCpunty
EthicsUiw.
'I'Ae CO:1l;mljsSion
reviewedtbe
Iawin
compliance
with Subtitle
8
ofthe
Maryhmd
Public EthicS
Law{MclCodeAtla,
<len.Prov~
Title 5 (2014».
After carefWtevieW
ofthe
ethics law,
the
Commission
didll()tqtpprQveth~JJlW
as compliant
with SQbtitle8
of
dIe
PubijcEthics
JaW
and COl\4AA 19A.04 for
tile following.
reasons!
1.
Section 19A..8
createsawai'verpooviijon:t1)atalloW$
t}ieCoootYEthics
Commismoiito
waive
the
ptowbjtion
oftb,eRQ$t~etnploymeritresttictiol1,s.
'I'hete
is
no
such waIver
provjsion.
jn
·theS~~Publit: Ethics.~w;
2.11le post.oemploymentptovisiol1$ofSectipn
19A~13
contain
Ii
1o
year
limit
The
Public
Ethics Lawhas.llQume limit?
S$
the
t¢st;rictionsbould
Ill·effect for the duration
(lfthe
"case~ contractorSpeClficma~J;
3...
l'hegiftpi'ov:iSi9~mcludesaPtoVisi()llthat
prohibits
the acceptance ofagift
from
any
restncteddonot whlchincludes business entities thatare doing business
with
the dty.
'IbePuhHcEthics
Lawrequires
that
provisioll
bee~ten4ed
to 1;>usil)¢Ss
e[)titi·~
that>are
lilSQseeJdng to
do
bll$iness
with
the
coUnty
toC8prure,
for example,
business entitles
bidding
·on
a
CountyptoJect;.
4. The enactedflIlatlcial
di~lo.sureprovi~ions
for disclostireofsOUrcesQfearned·
incOme
provide
that
tbe
~temeri.t mU$tlist~natl1eat)(taddress ()feachefuployei'oft~.filer,or
a
memberoftbe
filer~sllnmediatefan:illy.The
Public EthlcsLawrequires
both;
the filet
and the
filer's
4ntn.ediate family
todisclo~
their employer. BaSed on our conversations,
itis
ourunderstmdingthat
was
the inttmt ofthe
law
and
the
"of'
was
a
typo;
COOduct Standards.
DiSCIosUte·.
LObbyiSt
ReguiatiOit
.•
LocaIGo>$fmtleiltRe~ments
...
AdtljCf3
.,
. Enforcement
.
®
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5.
The
enacted
fmancialdisclosure
provisiQDS fordi$closUle
of.SQ~ Qf~~
irleotQe,
provides
exceptions
for
di~losmgeamedillCOme$ourcesifthe~ployer
artd,tbe
tllf!t
have a confidentiaLrelationShip which creates a
priVilege.
'!'he Publlc
]:It;hlcs):.aw
does
oot
have
this
exception
~itWPuldnot req~>
for
example,8$61opmcticeattQrney
to
list
hlsindividual
inCOllle<$Ourcesbyclientname,l>utlnsteadwou¥l
simp1y~i1ire.
tbe
disclosure ofthe
practice's
n a m e . '
Tb
e
Co
mnllSSlOS reVIew 0
fM'
""A""1)Otnety
·Co·
n~'
s
prop<>.
.l.Jlol(:S.a:
wW8S;in
..... ; '.' . "
•.
n'
.'
......u~1
.
sed·
eO;L:
1
. ...... . .'
accoidaneeWi·t.
..
'.
Mta.
'.'
.~
Sllbtit1~ 8am4C()MAR.19~.04.02.ld()tdet tob¢~ptov~ ~ePt6Visio: ~holild:eot
we::!
to
reflect
the
chang~
mdieated above. The
proVlSlonsm
thelf
,ctnTent
onn.ate··;. .'
at . . . . '.
equivalent for
loca1e1ectedoftkials
or
similar
for
emplQYees and
~htt~oflicial$:~req~
by Subtitle
8 and
COMAR
19A.04. Ifrequest«i, we
arelulppyto providelneiectronic form, the
model law
language
suggested
by
the
COmmission.
provide a
letter
to
the
comtnissionln&lvance
ofaneofthemeetings deWiin8
theactious
that
Montgomery
County has.
taken,
or plans
to
take,
in
tbis
matter.
If
cjthet
re"isioti$
to
··tl¢·etllic$laW
~.
drafted
ot
en~, pl~forwardthattotheCommiSsi()ii
fQt1'eview:@dttpprova!.
The
eonimission will
review
tIult
infotntationin order
to
evaluate
whether'Montgomery
Cpuntyii
making progress
or
good faith efforts towardc{)mpliance
with
the
requirem~estabn$bed
by
the
MtU'Yl~d
G¢neral
Asse
l11
blyill
th~P1lblic
Ethic$
L{lw.
Therert1aittingfinancial
disclostlre~uif¢ment$and.·~Xlflictofin~pr(:)vi~ions
for
loc!ll
e1ecte<1ofticials, local
appQinted
officials
ancllocai employees
meet
the
requirements.ofSuhiitle 8
or
the Public Ethics
Law
andCOMAR 19A.04 and are approved
by
the
Co~~ion.Th~
Oonnni.s$ioJ;l~$n~xt m~atesclledUled
fot
~bet 42~.
201S
.fUKlI>ecetn~ t7~2Q15.
Please
.
Please contactme'ifyou have
any
questiollS.
110Qk forward to
~~ving
an;
up@tefroIll
you i'egatc.ling
.Montg9mery
Comity's progress
in this
matter-
.
Sincerely,
~P.~
I<atherfueP. Thoxnpson
Assistant
General C9unsel·
Condui;tStandards
DiscJOsu(9
;
LQbbyi$tRegulatJOO
;LocaIGovemmentR£Kluirementsf·Adviee..
Enforcement
.
@