Agenda Item 9
January
12~
2016
Public Hearing
MEMORANDUM
January
8~
2016
TO:
FROM:
SUBJECT:
County Council
~
Robert H.
Drummer~
Senior Legislative Attorney
~.
Public Hearing:
Expedited
Bill49-15~
Ethics - Update
Expedited Bill
49-15~
Ethics -
Update~
sponsored by Lead Sponsor Council member
Leventhal~
was introduced on December 1
~
2015. A Government Operations and Fiscal Policy
Committee worksession is tentatively scheduled for January
28~
2016 at 9:30 a.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
or'
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 staffs 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
©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 pennit 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 to-year time limit on the prohibition in §19A-t3(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
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 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.
This packet contains:
Expedited Bill 49-15
Legislative Request Report
September 21 Letter from Assistant General Counsel Thompson
F:\LAW\BILLS\1549 Ethics Update\PH Memo.Docx
Circle
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1
4
5
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Expedited Bill No.
~4=9-....!.1~5
_ _ ___
Concerning: Ethics - Update
Revised: November 4, 2015 Draft No.
L
Introduced:
December31,2015
Expires:
June 1, 2017
__________________
Executive: _______________
Effective: _____________
Sunset Date:
--'N~o::::.n1.:::::e~
_______
Ch. _ _, Laws of Mont Co. _ __
En~red:
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
Lead Sponsor: Councilmember Leventhal
AN EXPEDITED ACT
to:
(1)
(2)
revise certain provisions of the County Ethics Law governing conflicts of interest
and financial disclosure to meet certain requirements of State law; and
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]
Qguble underlining
[[Double boldface brackets]]
* * *
Heading or defined term.
Added to existing law by original bill.
DeletedJrom existing law by original bilI.
Added by amendment.
DeletedJrom existing law or the bilI 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
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) ifit fmds 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
*
(a)
*
*
11
12
13
14
19A-13. Employment of former public employees.
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.
15
16
17
18
*
19A-19.
(a)
*
*
Content offinancial disclosure statement.
Each financial disclosure statement filed under Section 19A-17(a) must
disclose the following:
19
20
21
*
*
*
(8) Sources ofearned income.
(A) The statement must list the name and address
of~
22
23
24
25
26
ill
each employer of the filer, other than the County
Government [,];
(ii) [or a] each employer of
immediate family[,]; and
~
member of the filer's
27
(iii) each business entity of which the filer or a member
f:\law\bills\1549 ethics update\bill 3.docx
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EXPEDITED Bill
No. 49-15
28
29
30
31
32
33
34
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.
*
*
*
[(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:
35
36
37
38
39
(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;
40
41
42
(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
43
44
45
46
(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,
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
*
Sec. 2.
*
*
Expedited Effective Date.
This Act takes effect on the date on which
it
52
The Council declares that this legislation is necessary for the immediate
protection of the public interest.
becomes law.
f:\Iaw\bills\
1549
ethics update\bill 3.docx
53
54
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LEGISLATIVE REQUEST REPORT
Expedited Bill
49~
15
Ethics
-
Update
DESCRIPTION:
PROBLEM:
GO ALS 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\1549 Ethics Update\LRR.Docx
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STAl'n
OF MAliYLAND
EXECUTIVE DEPARTMENT·
STATE ETHICS
COMMISSION
45
CALVERt
smElT ..)U·F1.OOR
ANNAPoLIs,
MAR~1140J
Toll
~1-si7"",!4S08S
FAX:41Q...l(;t)..7747
41o..M--7770
September
21, 2015
Bob
Drw::rimer
Senior LeBislative
Attorney
M(mtgomery County·:Conncil
·lOOM8ryt~dAv~~
5
th
FlpQf
Rgekvi~
Matylatid208S0
At
ItsSqltemner
10,
2015
meeting,
the
State
Ethics
Commission
<IiC~S$iOn")
reviewed. the
recently
submi~
MontgomeryCQunty
Ethi~s4w~ ~eO~~ssiQn
reviewedth¢
lawincompliJllice with
Subtitle
8 ()ftbe Maryland
PublieBthics Law(MaCodeAnn.,
GtaProv:.
l'itle 5 (20 14}).
.After
catefulteview
oftheetmcs
Jaw,
the
Cottunission
didnQtapprQveth~lffW
as eompliantwith
Subtitle ,8
of the
Public BtbJ9s laW
and'
CO~ 19A~04
fot
the
following
N8$OtlS!
1.
Section
1~A
..8creates
a:
waive·~ prQbibi;nQJlpf~R9.$t~:plQymerit resttictio~s. ~isn()SlIchwaiver
waiver
pt»viSiQntl)al;iloW$
t1ieCo:Urity·EthfcsCommissioliW
provlsion.in
·theS~Publi¢Ethi~l.4lw;
2.Tbe
post~ploymentprovisiOll$ of~()'t119A.
..13oontaitt
~
1
(tYeat limit 1hePtibtlc
Ethics
LaWhaS.11O time
litni~
as
thetestrl.ct1onsboul4
be:
ill.
effectfot
thedutation.bf
the
~~, cQntract~t'SpeCifi(: .~ttef~;
3,
1lte,giftPtoviSi~1rielude$.Rtdvisi()Jltbat
prohibits
the
aceeptanteof:agiftfromany
restricted
donor whiehineludesbusiness entitiesthat.llre
doing
business
wltbthecity..
ajsoseekingto
do
bU$itess
with
the
Cotirity to
capture,.forexampIe, business
entities
ThePublicEthiC$4w~~s ~provisi(;)x, beexten4edto~U$m¢S~e.ntiti~stliat'ijre
4,
The,enaQteQ~iartU~l~pt:Ovi~ons
fot
disClosure6f.SOUrCeSQfeamed~rne
bt(1dinson
a
County project;
..
·provide,thattbe
~tn1.llst.th~ttanle~adPressofeachemplo1eroftbefiler;or
fuunediatefanUly.The Public EtbiesLawreqUites
both,
the
filet
and
the
filet's
itnn1ecliate
family
to <Uscl.oseJheir etilployer. Based on our conversations,
itisoiIl'understan4ing~
wastlleinteIttofthe
law and
the
"or"
wastftypO;
It
member'oftlle
filer's
COnduct StandanlS
.
'*
DfscIostiie.
LcibbyistRegillatioit
-Local
GovetnilJSlftR~
.*...Ar/IIJi:fJ
f
IEnIbrolilITifmt
®
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5
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'T'l.....
J;I~."," J;1I~.
w"
~OS\Jl'e
proY1SlQI)$
.
.W.1
~l()Sure
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~
"7---""!al
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ft_l. .
..'.
:t'_
.i:~...t
11m
f . ..
..
f·_.._ .....
intotne
9 ...
~~
.' ... '.' "
provides.exeep1ions
for
disclosfug·ea.rnedi~~$Oun:esifthetmiP1Qye.r
$)d'
the·.
fil~
bawaoonffdentialreJatiooshipwhieh.creates.
apdvilege.
Th~
public
J~tbicS·.tawdoes
Jlot
have
tbise:ueptionbeeauseltwouldnotreqll~for example,a~()prtlCtice
attorney
to
list
lllsindividual
income sources
by
cIumtname,PutinsteadWo~d simpl)treq1J~the
disc~:oftbe
pglCtice's name.
'.
Th
e
C
Oll1Dl1SSIO
n'
S
revte.
waf'·
~l:"l~"'Jllety
l"~nn:tV'
sptQp<J
sed
e.."":......
l
ttl\'
Was·
in
'.......'. , .
~
......
~
.~.
.'
\.XtVo.t......
.' . '
~-.~f
.
•..
........... ..
accotdan
,1I1lW
SUWitle
8~CQ~. t9A.()4Ji2~IdQnlet·tn~ ~roved; ~Ptovision
shoUld
.beatnended
to
reflec:t
the
cbangcsindieated
above.
The
provisions.m their
.cummt
fonn ;are not
at
least
wi·"
eqpivalent for
locru elected,
officlalsor$milar
for
emplQyeeslUldappOJnt~
offiei$:il$reqUited
by
SubtitleS and
CPMAR
19A.04.
Ifreq~
'we
arehappytoprovideinelectrOme
(OInt,
the
mQdellaw~esuagestedby
the
Commissioa
The . .
'n'
finariei..
tdi
sc~
..
u,re.~men.,
...
CQ ...
1..
..~;~kyA"'~""",qns
·forloeal
''.
:lOSt"
ltsandnfl'ttof:"'~~<:!l
..remat
Ing.
.
!ill •
, ........
el~()ffici~
loctU
appointed
officials·
and
local
~l()yees
meet
the
requirements.
ofSubtitle 8
cf
the Public Ethlcs
Law
anuCOMAR.
J.9A.04
and·~
8ppmVed
by
··~CPmmi~iOb,
.
The
CPtJl~$$i()n.~$next~aresCl1.edtlledfQt ~bet.
42,
201SIJn~~~1?~2Ql$,
Please
provide
a
lett-ertoth~
CODilnissioninadvanee
of
one
of
the
meetings
d~
theact10ns
that
·MontgomeryCounty.has.taken,ot,.phmstotate.,.inthisinatter.lfothetreyisiQ1i$tQ.'theethi@taw
~. ~rafted.
or
e~tph;aSeforwanitiiattotheCommiSsion fQtl~view
:$idappro.val,
The
CommisSinn
will
review
that
informatiOn
in
ordet·toevaluatewhether.MontgQ.tnety
CountYi$
making
progress
or good.&itheilbrts toward
compliance.
with
the
requiretn.eiltS~lishedby·tl1e
Mw:Yl~d~
Assetrt,blyln
thePJ.d>licEthiC$l..aw.
yqu regarding
Morlt~mery County'sp~jn
this
matter.
Pl~rontae.tme]fyou
have
any
q~on~.I]oo,k
forwm-d .•
bl.
~fvinga.n ~e
.'
from
Sincerely,
~P.~-
i(atherineP. Thompson
AS$i_t.Ge~
C<.lUnSel·
ConductStant:htrds
.DisdoSl,lf9
.
11.obbyi$tRl}~JatJort·#Loca/·Gov8mrnerJt~n"
•. Advirie·.
.
!E(ifQrcement"
muSets:
1-~135"21~$·
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