Ethics Matters News
At its May 17th meeting, the Ethics Commission dismissed a complaint for a conflict of interest violation brought before it at its April 19th meeting. The Ethics Commission does not disclose the identity of the person who brings the complaint (the complainant) or of the person against whom the complaint is lodged (the respondent). Those involved are under no constraints as to confidentiality.
The decision of the Commission in this case is very helpful in informing the public about the County’s Ethics Law. In this case, the respondent, Sheila Tolliver, had been publicly asked at a televised Planning Commission meeting by another member of the Planning Commission, Barry Waterman, to recuse herself from discussions and votes regarding Queenstown and Wheatlands Farm which she refused to do. The complaint against Mrs. Tolliver, brought by Mr. Mareen Waterman, alleged that she had a conflict of interest and had violated the County Public Ethics Law by not recusing herself. The Ethics Commission considered both Mr. Waterman’s complaint and Mrs. Tolliver’s response.
Mr. Maureen Waterman based his complaint on the last provision of the Chapter 27, the Human Resources Code, which states Standards of Ethical Conduct. The Ethics Commission determined that the Human Resources Code expressly excludes members of Boards and Commissions appointed by the
Even though the complaint was based on a non-applicable provision of the
You can find the Ethics Commission’s opinion on the complaint (10-02) on our website, www.ethicsmattersinc.org under Opinions.
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Ethics Matters recommends reading the Ethics Commission’s 2009 Annual Report, found under Documents, on our website www.ethicsmattersinc.org , the County’s website, or at the public libraries. It is an excellent overview of what the Ethics Commission does in general and, in particular, the decisions and actions it took during the past year, including brief descriptions of the 18 Advisory Opinions it issued in 2009.
The volunteer Commission members are to be congratulated for their dedication, evidenced by the amount of time and thought they have given to creating and sustaining a culture of ethical governance in Queen Anne’s County. One member, Neal Jackson, recently resigned from the Commission to run for elective office. As a retired vice-president of a national non-profit organization, Mr. Jackson brought a great deal of experience to EC discussions and decision making. The current members of the Commission are Bob Mueller, Chair; Kendall Ruffatto, Vice-chair; Hal Wilson; Nanese Hawthorne; and Ben Tilghman.
The County has issued a press release asking interested citizens to apply for the now vacant alternate position by June 11. A resume and letter of interest should be sent to by regular mail to: The QAC Commissioners’ Office, The Liberty Bldg., 107 N. Liberty St., Centreville MD 21617, attn: Jan Edwards or by email to jedwards@ qac.org with “Ethics Commission vacancy” in the subject line.
Questions have been asked about the Ethics Commission’s Advisory Opinion process as a result of the Queen Anne’s
The background is as follows. Before the vote, in response to constituents’ concerns about the appointment to the Planning Commission persons believed to have possible conflicts of interest, Commissioner Fordonski had requested the financial disclosure forms of all the applicants. After reviewing the information on the forms, and in the interest of doing “due diligence” before making a possibly unlawful appointment, she asked the Ethics Commission for two Advisory Opinions, one of which was whether Mr. Waterman’s membership on the Planning Commission would be an Ethics violation due to his business interests. The Ethics Commission advised her that Mr. Waterman would be prohibited from membership on the Planning Commission.
This request, and the resulting Advisory Opinion, had nothing to do with Mr. Waterman’s character, nothing to do with his views or his politics, nothing to do with his ability to serve the County in other capacities. They simply addressed whether Mr. Waterman’s business interests, as described by him under oath sixteen months ago in his financial disclosure form (required for transparency for members of Comprehensive Plan Topic Committees), would preclude his membership on the Planning Commission.
In his financial disclosure form, Mr. Waterman stated he was President and part-owner of Waterman Realty, a general and limited partner of the Waterman Family Partnership and Vice-President of Waterman, Inc. He described the nature of the businesses as “Real Estate brokerage, investment, development, consulting, and construction.” He indicated he owned, in whole or in part, numerous properties, including Wheatlands Farm, currently under consideration for development.
The County Ethics Law provides that a County official is prohibited from being employed by or having a financial interest in an entity that is “subject to the authority of that official or employee or of the governmental unit with which the official or employee is affiliated.” In short, you cannot serve on a governmental body that supervises or gives approvals to a business you have an interest in. Simply recusing oneself from decisions directly affecting your business is not enough, because by giving or withholding approvals on other projects, you set precedents and establish policies that can benefit your interests.
The prohibition cited by the Ethics Commission assures the public that decisions made on their behalf are free from considerations of personal financial gain. Notice that the prohibition does not keep all developers from membership on the QAC Planning Commission. A developer would not necessarily be prohibited from serving if he/she did not develop in Queen Anne’s County.
An Advisory Opinion is simply that – it is a non-binding answer to a question about the application of the Ethics Law. In responding to a request for an Advisory Opinion, the Ethics Commission applies the Ethics Law to the facts provided in the request, in this case, Mr. Waterman’s financial disclosure form. The Complaint process is quite different; it is an allegation made under oath of a violation of the Ethics Law. The subject of the complaint is informed of the complaint, notified of his right to respond and present evidence, and his right to an attorney.
The Advisory Opinion process is common to most Ethics Laws and is designed to help people avoid violating the Ethics Law and so possibly becoming the subject of a Complaint. Last year, the QAC Ethics Commission issued 17 Advisory Opinions. They are available both in the
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In an important decision, the QAC Ethics Commission has found against a member of the volunteer Queen Anne’s County 4-H Board in a complaint alleging a conflict of interest. The conflict arose when a private company owned by a Board member entered into a services contract with the Board.
In the opinion, the Ethics Commission first established its jurisdiction over the Board and the right of the complainant to be heard.
In its findings of fact, the Commission noted that 4-H Board members had expressed some concern that the situation could be a conflict of interest, but that at no time - right up to and including the complaint hearing - had any member read or consulted the Ethics Law or sought an Advisory Opinion from the Commission. The 4-H Board testified that they believed that they had addressed any conflicts concern by having the company-owning Board member leave the room during the final discussion and vote. The Board awarded the contact to the Board member’s company which was the low bidder by a narrow margin.
As the Ethics Commission’s opinion points out, however, it was not just the process of awarding of the contract that presented a problem; the on-going relationship was in violation of the law. The Ethics Law provides “a clear-cut, black-letter ban on a business relationship between a private entity in which a Board member has a financial interest, on the one hand, and, on the other, the county board on which the member sits.” (p.6 of opinion) In short, the on-going situation of a Board member having a financial interest in an entity which is doing business with the Board he/she sits on presents a conflict of interest and is a violation of the law.
The Ethics Commission concludes with the following Final Consideration:
To the extent that counsel implied in his argument to the Commission that, somehow, volunteers on county boards and commissions should be given some slack in being charged with at least a basic understanding of the Ethics Law, and possibly some slack even in the application of that law to them, we firmly reject the notion. Volunteer service to local government is the backbone of good citizenship and is a hallmark upon which local government depends. Nonetheless, Section 8-4 – like similar provisions in a myriad of governmental codes at the local, state, and federal levels – reflects a legislative balance of this and other considerations against a bedrock of democratic government: Trust and confidence of the people in the integrity of their government officials. A government official’s status of volunteer does not reduce the right of the people to be assured that public actions of public officials are not tainted by considerations of private gain or insider status, and it is not unreasonable for the people to expect officials – volunteer and otherwise – to have at least a fundamental appreciation for constraints and expectations in this regard.
A cease and desist order for any action in furtherance of the contract in question was issued by the Ethics Commission.
Ethics Matters applauds the Ethic Commission’s carefully considered decision. We have only summarized the opinion here. It is available in full on this website under Opinions.
Ethics Commission’s 2008 Annual Report
Ethics Matters has just posted the Ethics Commission’s 2008 Annual Report on this website under Documents. The Report reflects the thought and time this volunteer commission devotes to promoting ethical governance in our County. They deserve our appreciation.
The Commission continued its Education and Outreach Program by conducting a briefing session last March for members of
Over the course of 2008, the County issued 31 written Advisory Opinions. The opinions are the Commission’s interpretations of the Ethics Law as it applies to the facts of particular situations. The opinions are summarized in the Annual Report with identifying information redacted to the extent possible. (They are also available in full on this website under Advisory Opinions.)
It is interesting to note that in the year before, 2007, there were 20 Advisory Opinions issued. The Ethics Commission attributes the one-third increase to County employees’ and officials’ increased awareness of the law and their desire to comply with it.
Two hundred and ninety-seven financial disclosure forms were received and reviewed for completeness by the Ethics Commission. The Commission initiated 5 complaints for late filing or failing to file financial disclosure forums. All outstanding forms were subsequently filed and the complaints were terminated.
The Commission also initiated a complaint in reference to the gifts provision of the law. The employee “cured” the complaint and the complaint was terminated.
In 2008, 21 individuals or organizations/businesses were identified on lobbying registration forms as lobbyists, although many of those did not in fact register. The Commission received 16 year-end lobbying reports for 2007.
In its conclusion to its Annual Report, the Ethics Commission complimented the integrity of Queen Anne’s County employees for bringing questions regarding their own actions forward so as to be certain that they are complying with the Ethics Law.
Committee on Lobbying Reporting Created
At the Ethics Commission’s January 2009 meeting, Chairman Mueller appointed a committee of Ms. Ruffato, Mr. Tilghman and Mr. Jackson to look into ways to inform individuals and business/organizations about the lobbying provisions of the Ethics Law. It is clear that some businesses/organizations and individuals are not in compliance with the law, perhaps because they are not aware of its requirements.
establishing and preserving the public's trust in their government.
Recently, the
Mr. Jackson was the Chief Legal Officer and Chief Ethics Officer (Vice President for Legal Affairs, General Counsel and Secretary) of National Public Radio from 1996 to 2007. Before that he was a partner in the
Mr. Mueller, who joined the Commission as an alternate, has been serving as Chairman of the Ethics Commission for the past few years. He, too, is an attorney, retired from the federal government where he was Senior Commissioner for Judge Andrew Effron of the
Other members of the Ethics Commission include Kendall Ruffato, an attorney who is the Executive Secretary to the Attorney Grievance Commission of
The Ethics Commission meets on the third Monday of each month at 5:30 p.m. in the
Ethics Matters has just posted several months’ worth (May-Aug) of Advisory Opinions issued by the County’s Ethics Commission in “Documents” on this web site. The Ethics Commission (EC) has had problems with the numbering of these opinions, making it difficult to post and refer to the opinions in a meaningful way. At their September meeting, the EC straightened out the problem.
Several of the opinions advise about the financial disclosure requirement for “ad hoc committees and subcommittees providing advice and/or recommendations regarding acquisition, zoning, or designation of land.” Opinions regarding this provision and the necessity for financial disclosure were issued in regard to the Chesapeake College Area Citizens Advisory Committee [08-04, 08-08], the Committee on Site Selection for the
It should be noted, in passing, that these ad hoc citizen advisory committees are not subject to any other provisions (conflicts, gifts) of the County Ethics Law. Different interests should be represented on them, while the transparency provided by financial disclosure allows committee members to know where other members are “coming from” and reassures citizens that interests are represented fairly in relationship to the make-up of the community.
There were also a number of opinions regarding possible conflicts between County employment and outside/part time employment, as well as possible conflicts regarding spousal employment. The acceptance of gifts valued at more than $20 was also considered.
Ethics Matters made two requests for advisory opinions, both about the same situation regarding a conflict of interest. In September 2007, in an opinion [07-13] that cited no provisions of the law, the Ethics Commission found there was no conflict of interest for a member of the Ethics Commission to join the law firm of the Ethics Commission’s counsel. In their opinion about this situation involving itself, the EC failed to consider a central, controlling conflicts provision which prohibits a member of a board from being employed by or having a financial interest in an entity that is doing business with the governmental unit with which the board member is affiliated.
Ethics Matters requested a reconsideration of the opinion, citing the above controlling provision, but at their December meeting in Opinion 07-20, the Ethics Commission reaffirmed their earlier opinion and denied the request for reconsideration, saying the question was moot since the member had resigned. They left on the record the opinion that no conflict existed.
Again this April, with two new members on the Commission, Ethics Matters requested a reconsideration of the no-conflict opinions in this situation. This time, at their May meeting in Opinion 08-12, the Ethics Commission determined that they had overlooked the provision that was “appropriate for consideration in the context of this case” in their September opinion. They now agreed there was a violation of the law.
At this point Ethics Matters has two remaining concerns, both concerning the very confusing guidance this May opinion gives to those subject to the ethics law First is the opinion’s continuing reaffirmation of their mistaken and unconvincing earlier opinion of no conflict based on a non-controlling provision of the ethics law. Second, the May opinion is so filled with legalistic discussion that an ordinary person looking for guidance may easily miss the very important fact buried in a paragraph on the second page that a conflict of interest violation does in fact exist in this kind of situation. To see the May opinion on this site, go to Documents, Advisory Opinions, Conflicts 5.20.08 #08-12.
Members of Ethics Matters attend all Ethics Commission meetings. The Ethics Commissioners are to be congratulated for their hard work. We have been impressed by their commitment to conducting information and education programs about the ethics law, and we hope they continue to do so as new officials, employees, and Board and Commission members undertake their responsibilities to Queen Anne’s County citizens. The resulting awareness of ethics issues serves the County well. It also creates more work for the Commission with a stream of advisory opinion requests. Increasingly, the Commission considers these requests carefully with attention both to the circumstances of the request and the provisions of the law.
Our Congratulations
The accomplishments of the volunteer members of the Ethics Commission are impressive, especially in the area of informing the County government and the public at large about the Ethics Code. They have nurtured a culture of ethical government through their publications and by providing 19 training sessions during the course of the year. They have spent considerable time with those County employees and officials who find themselves subject to financial disclosure requirements, making the process as clear and non-burdensome as possible while explaining the reason for requiring financial disclosure for some County jobs.
Other duties of the Ethics Commission include resolving complaints regarding Code violations (19), handling lobbyists’ registrations (4) and year-end disclosures (15), and issuing advisory opinions (20). Because advisory opinions help inquirers understand the law, the Annual Report usefully includes a brief description of the rationale of each advisory opinion.
The whole County – government employees and the public at large – benefits from the time and dedication the Ethics Commission gives on our behalf. They do not have an easy job; they have challenging and difficult decisions to make as they administer the law. We feel sure that their annual report, publications and information sessions will result in a County with an ever-stronger culture of ethical governance. Each of the volunteer members deserves our appreciation. The chairman, Bob Mueller, is to be particularly thanked for his thoughtful and energetic leadership of the Commission.
Our Concerns
The first, already expressed to the Ethics Commission, is their opinion advising that there was no conflict with a member of their Commission working in the law firm of the counsel to their Commission.
The Commission, by its own admission, focused on one provision of the code, the misuse of the prestige of office, when considering this situation. They found no conflict because the member and counsel are both lawyers and lawyers disagree routinely, so the member’s votes wouldn’t be unduly influenced by counsel. They neglected to consider the controlling conflicts provision that prohibits the member from being on the Commission at all when she has a financial interest in an entity that is doing business with the Ethics Commission.
The member later resigned from the Commission. Nonetheless, the advisory opinion (9.13.07 #7-13) [and its reaffirmation (12.20.07 #7-20)] is incorrect and misleading, yet it stands as a precedent and guide to others in similar situations.
Ethics Matters believes the Commission simply made a mistake and needs to correct it. They should give serious consideration to withdrawing both of their misleading opinions regarding this conflicts situation.
Our second concern is the amount of time that is seems to be taking to conduct and complete the investigation, called for at last November’s meeting, into the purview of some of the subcommittees formed by the Public Works Advisory Board.
The issue is whether the members of any of these subcommittees should be required to make financial disclosure. The Ethics Code requires financial disclosure by members of certain committees “providing advice and/or recommendations regarding acquisition, zoning and/or designation of land” (emphasis added: taking sewer down Route 8 could arguably cause a change in designation of some lots from don’t perc/ unbuildable to lots receiving sewer/buildable). Our concern is that committees like these are often, by their nature, short-lived, so that by not accomplishing their investigation in a timely fashion, the Commission is not ensuring the transparency the public has a right to expect under the Ethics Law.
Two New Ethics Commission Appointees At their meeting Tuesday, January 22, the
Through Advisory Opinions, the Ethics Commission advises regarding applicability and compliance with the Ethics Law. The Maryland Attorney General notes that publishing the substance and reasoning of Advisory Opinions benefits the public at large. Some counties and the State publish their Advisory Opinions on their websites.
Any person may request advice from the Ethics Commission regarding applicability or compliance with the County Ethics Law. Advisory Opinions are public documents, and information that might identify the person who is subject of the opinion should be absent to the extent possible.
Done Right: The Ethics Commission has done a fine job of informing government employees and citizens about the Ethics Law. They distributed a Guide to the Ethics Law and fact sheets, and they are holding informational meetings with public employees. The volunteer Ethics Commissioners are to be congratulated for the energy, time, and effort they have dedicated to their information efforts.
Having served complaints on the offenders, the Ethics Commission imposed a fine of $200 on those still failing to comply with the law. Subsequently, they sent a letter to the few individuals who had yet to comply, giving them 30 days to pay the fine and file their disclosure form, or the Ethics Commission would forward the complaint to the State’s Attorney for enforcement. In October, with one outstanding fine left, the Ethics Commission Chair asked its Counsel to keep checking with the State’s Attorney on the status of the follow-up on this Ethics Law violation.
Throughout the undoubtedly difficult process of serving ethics complaints on fellow citizens in a small county, the Ethics Commission has made the effort to deal fairly with the disposition of each complaint, keeping in mind both individual circumstances and the unacceptability of non-compliance when the vast majority of those required to file financial disclosure did as the law requires.
Gone Wrong: Through its Advisory Opinions, the Ethics Commission advises public employees and officials regarding compliance with the law. As the Maryland Attorney General notes, publishing the substance and reasoning of advisory opinions benefits the public at large.
Of real concern is the determination that a member of their Commission, who joined the law firm of the Ethics Commission’s counsel, did not have a conflict of interest, or even the appearance of a conflict of interest.
The Ethics Law prohibits any County employee or member of a County commission from “having a financial interest in an entity that is … doing business with the governmental unit with which the official or employee is affiliated.” [8-11A.(2)(b)] This is a fundamental financial conflict of interest provision that the State requires as part every county’s ethics law. In this situation, the Ethics Commission member has a financial interest (as an independent contractor) in an entity (Counsel’s law firm) that is doing business (as counsel) with the Ethics Commission. It is a clearly prohibited situation.
Surely both the Counsel and the Member, also an attorney, knew this key prohibition and knew that the conditions for an exception did not exist. Nevertheless, the Member requested an advisory opinion. Without even considering the key on-point and State-mandated financial conflicts provision, the Ethics Commission advised that there was no conflict or appearance of a conflict. (See www.ethicsmattersinc.org/documents/conflicts9.17.07d.pdf second paragraph)
Asked by Ethics Matters to reconsider their opinion, the Ethics Commission refused to do so and instead issued another opinion affirming their decision of no conflict. Again the Ethics Commission failed to take into account the principal financial conflicts provision applicable to the situation. They advised that because the Member had since resigned, the financial conflicts issue contained in 8-11 (2)(b) was “moot.” (www.ethicsmattersinc.org/documents/conflicts12.20.07.pdf ) It is distressing that the Ethics Commission made no effort to correct its mistake, and instead chose to reaffirm their prior, published decision of no conflict which ignores the law and will certainly lead others astray.
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Unlike the old 1984 ethics law, the County's new Ethics Law, adopted in November 2005 and last amended by the Ethics Reform Act of 2007, has disclosure requirements for Citizen Advisory Committees for Community and Comprehensive Plans. Last week, Ethics Matters sent the following letter to the Board of County Commissioners, the Ethics Commission, and the Planning Commission.
[Note: The County Ethics Law with its disclosure requirements (at 8-13.C and G) can be found here on our website at www.ethicsmattersinc.org and on the QAC website]
Dear Commissioners:
As the County begins the process of appointing citizens to two Citizens Advisory Committees (CAC), one for the County’s Comprehensive Plan and the other for the Wye Mills Community Plan, we would like to draw attention to Section 8-13.C of the County Ethics Code.
8-13.C. All members of boards, commissions and committees listed in Subsection A above as identified in § 8-5.C of this title, and all members of ad hoc committees and task forces providing advice and/or recommendations regarding acquisition, zoning or designation of land, whether appointed by the Board of County Commissioners or appointed by other local government boards or commissions authorized to make such appointments, shall, together with the member's acceptance letter, submit a financial disclosure statement which shall include disclosure of any and all potential conflicts of interest that may be foreseeable as a result of accepting the board, commission or committee appointment.
Because three of our five Ethics Matters Board members were on the five-person QAC Ethics Commission when the Ethics Commission was drafting the County’s new ethics code, we would like to provide some “legislative history” that may be helpful to you in regard to this financial disclosure requirement.
1. The language in 8-13.C was copied from the St. Mary’s County ethics code and included in the QAC proposed code that was drafted by the 2004 Ethics Commission at the request of the then County Commissioners. Throughout the three-year process of updating the County’s ethics code under two sets of
2. The ethics code does not require citizens serving on committees such as a CAC to be subject to the Conflicts Provisions. (See Applicability 8-5.A-E.) Citizens should not be prohibited from CAC membership due to their financial interests or affliations. In fact, membership on these advisory committees should represent diverse land use interests.
3. The required financial disclosure is to create transparency. This transparency serves two purposes.
a. It assures the public at large that the membership of a Citizen Advisory Committee represents the various land use interests and represents them fairly in relation to the makeup of the particular community, with no interest group disproportionately represented.
b. It lets members of a committee know what the interests of the other members of the committee are; that is, “where they are coming from” as they add their input to the process.
4. The categories of required financial disclosure (land ownership, business interests, gifts, etc.) are set forth in 8-13.G and should be the same for each member of a given CAC. The Ethics Commission may modify these requirements pursuant to 8-15. For example, in the case of a specific area CAC, such as one for Wye Mills, the disclosure requirement of property ownership, gifts, etc., could be modified by the Ethics Commission to be directly relevant to that particular community, while being sure to provide the transparency that is the purpose of financial disclosure.
We hope this letter is helpful to you as citizens are invited to participate on CACs. We offer it because, unlike the past, Citizens Advisory Committees are subject to our County’s new ethics law, and the application of the law to CACs and similar committees is unique because they are subject to the law’s Financial Disclosure requirements but not to its Conflicts of Interest provisions.
Thank you for the opportunity to share with you our understanding of the County’s new ethics law in regard to CACs.
Sincerely,
Mary Campbell
Good news! The Ethics Commission is distributing “A Guide to the Ethics Law of Queen Anne’s County for
Also available at the Ethics Matters website (www.ethicsmattersinc.org ) under DOCUMENTS are the Ethics Commission’s information sheets about Conflicts of Interest, Financial Disclosure, and Gifts.
These documents, together with the Guide, help the Ethics Commissions meet its statutory obligation to inform and educate citizens regarding the purpose and implementation of the ethics law. Ethics Matters congratulates the Ethics Commission on their publication, and we are pleased to help the Ethics Commission promote public understanding of the County ethics law by posting them on our website.
Further news regarding the QAC Ethics Commission: Ethics Commission member Irving Pinder recently resigned from the Commission and has been replaced by the Rev. Nanese Hawthorne, who had been serving as an alternate.
The County provided a valuable service to the citizens who serve on
The
At its meeting before the training session, the Ethics Commission worked on a mechanism to make sure that those appointed to Boards, Commissions or jobs that require financial disclosure are aware of the financial disclosure requirement when they accept an appointment, as well as when they must file financial disclosure statements (with acceptance of appointment, then annually, and upon termination).
Also discussed was the need for the Ethics Commission to be aware of 1) any new job, Board or Commission created by the County Commissioners that has decision-making ability and of 2) any ad hoc committees and task forces “providing advice and/or recommendations regarding acquisition, zoning or designation of land whether appointed by the Board of County commissioners or appointed by other local government boards or commissions that are authorized to make such appointments.” These are the criteria that under the Ethics Law require financial disclosure, and those accepting a newly created position should be aware of the requirements of that law.
It should be noted that when the
1. Constitute an unreasonable invasion of privacy;
2. Significantly reduce the availability of qualified persons for public service; and
3. Not be required to preserve the purposes of the law.
All three of the above conditions must be met.
The Ethics Commission is also beginning to look at ways to meet their statutory obligation “to conduct information and education programs about the purpose and implementation” of the ethics law. This undertaking is especially important given the many changes to the County’s Ethics Law in the past year and a half.
Last Tuesday, the
Robert Mueller, who was an alternate on the Commission, is now a regular member. Mr. Mueller, an attorney, recently retired from the Federal Government where he was senior commissioner for Judge Andrew Effron of the U.S. Court of Appeals for the Armed Forces.
Also an attorney is Kendall Ruffato who is executive secretary to the Attorney Grievance Commission of Maryland.
A third attorney appointed to the Ethics Commission is Shannon McClellan, currently Senior Advisor to the Dean of the University of Maryland School of Nursing
Irving Pindar was formerly Director of Queen Anne’s County Department of Aging. He is currently Executive Director of the Maryland Board of Physicians. Mr. Pindar is a lifelong resident of Queen Anne’s County.
The alternate position is filled by Nanese Hawthorne, who was appointed Rector of St. Luke’s Parish in Church Hill in November 2006.
Francis Roudiez is the current member of the Ethics Commission.
STATEMENT OF ETHICS MATTERS TO NEW ETHICS COMMISSION
This is a notable day for ethics in Queen Anne’s County. The new
The accountability of governmental bodies to the public is essential in a democracy. Since Ethics Commission meetings are rarely attended by the public, Ethics Matters tries to have a Board member attend each of the Ethics Commission’s meetings. You should know that three of our five Board members are former members of the Queen Anne’s County Ethics Commission, so we understand full well what it is like to sit where you are sitting.
We know the challenges of administering and enforcing the County’s Ethics Law, while being at the same time subject to the constraints of
We also feel that should a problem with the administration of these three laws arise, we have a duty of care to bring it to your attention.
We want to make sure you know that we share a common goal. We do not attend your meetings to find fault but rather in support of an important democratic principle and process – accountable ethical governance. Thank you again for your service to the people of Queen Anne’s County.
Last night, at their January 16th meeting, the Queen Anne's County Commissioners passed, by a 5-0 vote, a series of amendments to the County’s Ethics Law. This group of amendments, entitled the Ethics Reform Act of 2006, was the first law proposed and enacted by the new Board of County Commissioners.
When a copy of the new bill is available electronically, we will post it on our website. A description of the amendments can be found in the article titled “Good News” posted January 10, immediately below.
Below is Ethics Matters’ statement at the Commissioners’ Meeting.
“At last, with these amendments, Queen Anne’s County will have a fair, enforceable Ethics Code. The Ethics Reform Act of 2006 meets and surpasses the State requirement for county ethics codes. It is good enough to serve as a model for other small counties as they update their ethics laws. It is an ethics code that government workers and the public at large can point to with pride. Thank you, Commissioners, for making good ethics legislation a top priority of your administration. It is a great day for Queen Anne’s County.”
Mary Campbell for Ethics Matters
With the introduction last night (January 9) of an amendment containing an important conflicts provision, the
These amendments, the Ethics Reform Act of 2006, will provide our County with:
- an ethics code that meets and exceeds the State’s minimum requirement for County Ethics Codes
- an independent Ethics Commission
- a fair, enforceable Ethics Code that promotes open, accountable government
- an Ethics Code good enough to serve as a model for other small counties as they update their codes
- an Ethics Code that government officials, employees and the public at large can point to with pride
Most of the proposed amendments were introduced on December 19 by Commissioner Billups and co-sponsored by Ms. Fordonski, Mr. Gunther, Mr. Ransom, and Dr. Wargotz, making the introduction of the proposed amendments unanimous. It is notable that the new Board of County Commissioners chose to make these amendments to the Ethics Law the first piece of legislation of their administration.
Provisions of Proposed Ethics Amendments
Conflicts of Interest:
§ Restores the missing required conflicts of interest provision that prohibits having a contractual relationship with a business subject to the authority of your government unit.
§ Excuses from conflicts provisions regarding employment or ownership interests those officials or employees who are appointed to a regulatory or licensing authority pursuant to a requirement that persons subject to the jurisdiction of such authority be represented in appointments to it.
Complaint procedures:
§ Counsel prosecuting a complaint may not be the same counsel who advises the Ethics Commission on the complaint.
§ Rules regarding confidentiality of complaint proceedings.
§ Ability to require relevant evidence or knowledgeable witnesses (subpoena power subject to review by the
§ Number of years allowed for bringing a complaint for an alleged violation increased to 2.
§ Provides penalty for filing more than 2 frivolous complaints.
- Respondent found innocent in complaint proceeding recommended for reimbursement for reasonable legal fees.
Lobbying:
§ Those registered as lobbyists do not have to account for all their income from a client, only income received for lobbying activities as defined by the QAC Ethics Law.
Ethics Commission:
§ Membership of Commission expanded to 5 and an alternate.
§ Limit lobbyist prohibition to Commission member (not family members)
§ Attorney for Ethics Commission appointed by Ethics Commission with consent of
Definitions:
§ “subject to the authority of” defined and used consistently throughout code
As we noted last week, there is still a problem with a missing conflict of interest provision. It must be resolved before our County Ethics Code can receive State approval for meeting the minimum requirement. The provision addresses the problem of a County official or employee having an ownership stake or employment in a business entity that is doing business with his or her County agency. This basic conflicts provision was in our old law and in earlier proposed versions of our new law. It was removed from the version that Mr. Cassell introduced and you passed.
According to the newspaper, Mr. Comfort is referring the State’s concern about this missing provision to the County Ethics Commission who could determine whether the definition of “authority” resolves the problem. If so, you Commissioners would not need to amend the Ethics law yet another time to get State approval. The code contains no definition of authority, so the County Ethics Commission would have to make an interpretation of what “authority” means and incorporate it in a regulation or advisory opinion.
Doesn’t it tell you something when the lawyer for the State Ethics Commission can’t find the provision? For the sake of our County employees, a clear statement of this prohibition should appear in the Conflict of Interest Section of our ethics code. That is where an employee would look when wondering whether a particular situation presented a conflict. A basic conflicts prohibition buried outside the code itself in an interpretation contained in a regulation or advisory opinion puts our County government workers at a disadvantage and could set them up for an unintentional violation.
A clear statement of this basic conflicts provision should appear where an employee would look for it - in the Conflict of Interest Section of our the law.
Last summer, Mr. Ransom introduced an amendment to straighten out our new ethics law. It contained a simple, straight-forward statement of the prohibition about being employed or having a financial interest in an entity that is “doing business with” the employee’s governmental unit. It was clearly stated and met the State standard.
Mr. Ransom’s amendment was voted down 3-2, and an amendment addressing this missing conflicts provision was not among those you recently passed. In spite of our pleas as a concerned citizens group and in spite of letters from the State about this conflicts provision, it is still missing from our code –and it still keeps our code from meeting State requirements.
Please amend our code so it meets the minimum State standard. Put this basic required provision in the code – put it in plain language and put it in the appropriate section. For the sake of our government workers and the public at large, let’s keep our ethics code as straight-forward and easy to understand as possible.
Press and Public Comment
Statement of Ethics Matters
In recent weeks you have passed 8 amendments to the County Ethics Law. These amendments bring our County closer to the minimum standard required by the State, but we don’t seem to be there yet.
The process of getting a decent ethics code has been long and difficult. During the past four years, our ethics law has gone from the old law, the weakest ethics law in
The Counsel to the State Ethics Commission reminded you earlier this month that there is an important Conflicts provision remaining to be addressed. This provision prohibits a government official from owning or being employed by a business that has a contract or is negotiating a contract with that official’s government agency. For example, the Head of the Roads Department can’t be contracting to lease equipment for County use from an equipment rental company he owns.
A provision prohibiting this kind of conflict was present in earlier proposed versions of the law and was even a part of the old weak law. However, this prohibition was eliminated from the law that Mr. Cassell introduced and you passed.
The letter from the State reminds you that they wrote last July questioning the absence of this provision. The State notes “that there has been no response . . . regarding these questions.” The State’s Counsel even helpfully supplied language for an amendment addressing this conflicts situation, which, he said, if included in the code along with the recent amendments, would likely mean State approval of the County Ethics Law. Please address this important provision so we can have an ethics law that at least meets the minimum requirement.
Also, you ignored the State’s recent recommendation to give our Ethics Commission the right to obtain relevant evidence and call knowledgeable witnesses when making decisions about violations of the law. Otherwise uncooperative respondents stonewall the Commission and possibly legitimate complaints must be dismissed for lack of evidence, and so the law can not be enforced. To be worth the paper it is written on, an ethics law must be enforceable. Please reconsider the State’s recommendation.
Ethics Matters has spent more than a year in pursuit of an ethics code that, at the least, meets the minimum standard. It has been a long and frustrating process – and we still are not there.
What Ethics Matters, and so many citizens, really would like is a code that does more than just meet the minimum – a code that government employees and the public at large can be proud of. But for the moment, we are resigned to first things first. Let’s at least get to the point where we can get State approval for meeting the minimum requirement for County ethics codes.
The Issue of Confidentiality
At the October 16 County Ethics Commission meeting, the members voted to request that the
The Ethics Law provides that “following the filing of a complaint and unless and until the matter is referred for prosecution or a finding of a violation has been made, the proceedings of the Commission in connection with the complaint shall be conducted in a confidential manner, unless such confidentiality is waived by the respondent.”
This provision addresses the real concern that government officials and employees are sometimes “tried in the press.” To help keep that from happening, the complaint proceedings of the Ethics Commission are to be conducted in a confidential manner.
How can this problem be addressed?
The confidentiality of most complaint proceedings becomes less than complete when someone – usually the complainant - gives the complaint to the press or otherwise makes it known. This has happened in virtually every ethics complaint in Queen Anne’s County in recent memory. It happens in all counties, at the State level, and as we are seeing right now, at the national level.
The QAC law nowhere states that the complainant cannot make the complaint public. It is questionable whether such a law would even be constitutional. The law does say that the “proceedings” (the investigation and, if necessary, the hearing) conducted by the Ethics Commission are to be conducted in a confidential manner – that is, in closed session, unless the respondent wants the investigation and hearing public.
Question: Upon receipt of the complaint, does the QAC Ethics Commission remind the complainant that the proceedings are confidential and make a request that the complaint be kept confidential?
To do anything more than this is difficult, because legislation that prohibits the complainant from disclosing the complaint would most likely be void as an infringement of citizens’ First Amendment rights to freedom of speech and freedom of the press. It will be interesting to see how the
Open Meetings violation
The Ethics Commission should be aware that, in all likelihood, they violated the Open Meetings Act when they discussed and decided in a closed session to pursue a motion to request the “enforcement mechanism” amendment discussed above. Discussions about changes in the law should not take place in a closed meeting. Hopefully, realizing their error, the Ethics Commission will cure the problem. The County needs to do a better job of equipping their volunteer Commission members for the task of interpreting and enforcing the Ethics Law, all the while negotiating the Open Meetings Act that provides the public with the transparency and accountability that a democracy requires. The citizens on the Ethics Commission need to be informed about and understand the laws they are enforcing and are subject to as they go about their duties. They should not be stumbling into the embarrassing situation of acting in violation of the law.
Possible recommendation from the Ethics Commission to the County Commissioners
If the Ethics Commission is going to request the County Commissioners to amend the Ethics law, it should consider echoing the State Ethics Commission’s recent recommendation that the QAC Ethics Commission be given the right to require that relevant information is produced and knowledgeable witnesses testify at complaint proceedings, so that the Ethics Commission is not forced to dismiss ethics complaints for lack of evidence.
In March of 2005, immediately following the hearing on an early version of the ethics bill, the motion was made to dismiss the volunteer Ethics Commission. The Ethics Commission had, pursuant to your request, updated the old 1984 ethics law – the weakest in
This amendment makes no change in the present unsatisfactory situation concerning counsel for the Ethics Commission. You, the
When the investigation that concerned this letter was launched, the Ethics commission had no lawyer to represent them. Their counsel was disqualified because she advised and wrote the letter. The
It was only when an outraged former Maryland Attorney General came to the Ethics Commission’s defense, that this months-long investigation came to an abrupt end, absolving the Ethics Commission and its counsel. Then the
An Ethics Commission has to be independent, and it has to have at all times the assistance of a lawyer who is well-versed in local and state ethics law and procedures, and who is responsible to the Ethics Commission alone. You, the
Testimony on 06-27 – Authority to administer Oaths
This amendment to the
The State Ethics Commission, in a letter dated July 26 this year, makes it quite clear that our
Ethics Amendments passed:
Amendment 06-12 changes the definition of “family member” by removing the restriction of having to “reside in the same household with the official or employee.” in order to be considered a family member. The State Ethics Commission noted this problem which allowed officials to participate in decisions affecting their family members as long as they did not live in their house.
Amendment 06-12 also removed the Ethics Commission’s ability to exempt any part-time elected official or members of Boards or Commissions, etc. from any or all of the requirements of the Ethics law (gifts, ownership conflicts) if their outside employment did not affect their official duties. This change was made in response to a letter from the State Ethics Commission.
Amendment 06-13 addresses the level of evidence required to find a violation of the Ethics law. The County had required “clear and convincing” evidence of an ethics violation yet did not allow the Ethics Commission the power to gather evidence or require witnesses to testify, thus making it impossible for the Commission to fulfill its duty of hearing and deciding complaints. The problem with their standard of evidence was pointed out to the County by the State Ethics Commission in two letters dated April 2005 and July 2006. Making the change was resisted by the majority of the
Ethics Amendments proposed:
Amendment 06-23 adds a number of Boards and Commissions to those that are subject to all provisions of the Ethics Law. It also makes it clear that members of any board or commission that has decision making authority are subject to all provisions of the Ethics Law. This amendment is proposed in response to the State Ethics Commission’s letter.
Amendment 06-24 straightens out some of the problems the State noted with the lobbying provisions.
Amendment 06-25 addresses the procedures for removing a member of the Ethics Commission.
Amendment 06-26 addresses the appointment of special counsel to the Ethics Commission.
Amendment 06-27 authorizes the Ethics Commission to administer oaths and affirmations.
Amendment 06-28 includes lobbyists among those from whom a County official or employee cannot receive gifts and clarifies the exemption provision. This amendment is made in response to the State Ethics Commission’s letter.
Ethics Provisions omitted: Ethics Matters continues to be concerned about the omission of a Conflicts of Interest provision required by the State. The provision was in the proposed law reviewed by the State in August 2005, but omitted in the law as it was passed in November 2005. It prohibits being employed by or having a financial interest in an entity that is doing business with the governmental unit with which the official or employee is affiliated. In its July 2006, the State questioned this omission, and asked the County whether and how it has addressed this issue.
Ethics Matters regrets that the
“The (State Ethics) Commission has consistently recommended that counties and municipalities consider including authority to administer oaths and issue subpoenas to the extent allowed by municipal and/or County law. The absence of subpoenas and oath authority would limit the ability of the local ethics commissions to conduct fact-finding related to particular allegations. For example, business or financial records may be required to prove secondary employment, or even the costs related to gifts given to local officials and employees.”
The County has proposed an amendment that gives the County Ethics Commission the authority to administer oaths. But this addition is little help to the Commission if it is unable to require witnesses to testify.
In an Executive Session at its meeting on Monday, August 21, the County Ethics Commission reviewed a complaint brought against a former County official and the former official’s response. Following the closed session review, the Ethics Commission announced it would investigate a number of allegations in the complaint. Included in the investigation are charges of conflict of interest (for holding or acquiring an interest of more than 51% in a business entity regulated by the official’s agency) and of failure to fill out the section of the financial disclosure form regarding interests held in property in Queen Anne’s County.
Ethics Matters’ proposed amendments to the County Ethics Law were the subject of the
The majority of Ethics Matters’ proposed amendments were aimed at making the County ethics law meet at least the minimum standard required of counties by the State. Mr. Hahn’s comments addressed Ethics Matters proposed amendments in view of those requirements. The Commissioners evidently agreed to accept most of the proposed amendments, although no vote was taken.
The amendments that drew the most discussion and became the sticking points were the amendment giving the Ethics Commission subpoena power and the amendment changing the level of evidence required to find a violation of the ethics law from “clear and convincing evidence” to “a preponderance of evidence.”
There seemed to be an acknowledgement that the Ethics Commission can not do its duty of hearing and deciding complaints when it is unable to require either evidence or witnesses, yet must have “clear and convincing evidence” in order to determine a violation of the law. There was no resolution of this problem, instead a request to Mr. Thompson, the
At the end of the workshop there was talk of drafting a new bill containing the agreed-upon amendments, and the request that Mr. Thompson consult Mr. Hahn on the evidence issue. There was no date established for either of these actions.
At the August 1st meeting of the
Before our current Ethics Law was passed in November 2005, Ethics Matters had contended that it would fall short of meeting the minimum State standard for County ethics laws. Ethics Matters has continued to express its distress both to the
In June, Mr. Ransom introduced two amendments to the County Ethics Law. At the hearing on the amendments, Ethics Matters, along with other Queen Anne’s County citizens, told the
After introducing his two amendments, Mr. Ransom asked Ethics Matters to propose further amendments to the County Ethics Law in order to bring our law up to the minimum standard. Mr. Ransom introduced the amendments proposed by Ethics Matters on August 1st.
Besides providing Mr. Ransom with the amendments, Ethics Matters submitted them to the State Ethics Commission for comment. Mr. Hahn, Counsel to the State Ethics Commission, responded in a letter dated July 25, 2006 which discussed all the amendments currently before the Commissioners.
This Tuesday, August 15 at 2:30 in the Commissioners Meeting Room, the
Last night, July 25, at the County Commissioners’ meeting, there was a public hearing but no vote on Bills 06-12 and 06-13 which correct a few of the problems with the current ethics code. There was a good public turn-out, and quite a few people spoke in favor the bills; none spoke against. Among the people who spoke on behalf of the two bills were EMI Board members, Terry Babb, Mary Campbell, and Stan Ruddie. Below are the statements made by Mary Campbell on behalf of Ethics Matters.
The additional amendments prepared by Ethics Matters at Commissioner Ransom’s request were not introduced at this meeting as anticipated. (To see the amendments click on the first item under Commentary at www.ethicsmattersinc.org ). Apparently Mr. Ransom was not able to introduce them because although posted on the County website as a Legislative Day, they somehow decided otherwise. Mr. Ransom has told Ethics Matters that he will introduce our amendments at the Commissioners’ Legislative Day meeting next Tuesday, August 1.
Bill 06-12 – Statement of Mary Campbell for Ethics Matters
You should pass this bill because, as the
The other mistaken provision allows a County official to make a decision on behalf of the County on a matter that has a direct financial impact on a family member just as long as that family member doesn’t live in the same house as the official.
Eliminating these mistakes will be a good step toward making our law comply with State requirements. But you need to take more steps because there are other problems with our County’s ethics law - problems that keep us from meeting the minimum ethical standard required by the state. For just one example, in our County a government official can own a company that’s doing business with his County agency. A provision prohibiting such a conflict-ridden situation is required by the State; and was in all earlier versions of this law. This provision helps assure the public that its government officials will act for the common good and not for private financial gain. It should be restored to our ethics code.
Please, pass this bill, but don’t stop here. In fact, don’t stop until you have provided this County with a decent ethics law. It is embarrassing to the citizens at large as well as to honest and conscientious government employees to live and work in a county whose ethical standards are so low that they do not meet even the minimum requirements of the State. Queen Anne’s County deserves an ethics code it can be proud of.
Bill 06-13 Statement for Ethics Matters by Mary Campbell
It is the statutory duty of the Ethics Commission to hear and decide complaints alleging a violation of the Ethics Law. In your ethics law passed last fall, you refused to give the Ethics Commission – and the person complained about - the ability to require relevant evidence and testimony at the complaint hearing. And on top of that you insist that the Ethics Commission have “clear and convincing” evidence in order to find a violation of the law. So they must have clear and convincing evidence to find a violation, but they cannot require witnesses to testify or relevant evidence to be produced. Unless there is a very blatant violation, this is a recipe to hamstring the Ethics Commission; they are kept from seeing violations of the ethics law, and so they can’t enforce it.
The justification for making our ethics law unenforceable in this way seems to be that citizens on Boards and Commission need to be protected from the volunteer citizens serving on Ethics Commission. So to do this, you make the ethics law – which applies to all of County government, not just to Boards and Commissions – unenforceable. Of course the person complained about should have the full protection of the law. But the way to achieve that protection is not to make the ethics law unenforceable. How can you deny the Ethics Commission the ability to require relevant testimony and evidence while at the same time insisting that it have “clear and convincing” evidence to establish a violation? It is a set up that makes your ethics law just an unenforceable piece of paper.
We know of no other
There will be a public hearing on two ethics bills, 06-12 and 06-13, on July 25 at 7:15 in the Commissioners’ meeting room. In addition, it is our understanding that at this meeting Commissioner Ransom will introduce the amendments proposed by Ethics Matters (see “Ethics Matters Gives Ransom Amendments to Ethics Code” below).
As you know, the new Queen Anne’s County ethics code, passed last November, has not been approved by the State Ethics Commission. County ethics codes are required by State law to meet certain standards in regard to conflicts of interest, lobbying, and financial disclosure. Our County ethics law does not meet these standards.
Commissioner Ransom’s two bills, 06-12 and 06-13, if passed, will correct some, but not all, of the problems with our ethics code. Bill 06-12 addresses the definitions of “family member” and “executive action” as well as eliminating a condition forgiving part time officials from being subject to the ethics code. Bill 06-13 changes the standard of evidence necessary to find a violation of the ethics code from “clear and convincing” to “a preponderance of evidence.”
Realizing that even with the changes incorporated in his two bills, the County’s ethics code still falls short of State requirements, Mr. Ransom recently asked Ethics Matters to propose a full set of correcting amendments. Ethics Matters and its counsel (former State Attorney General Stephen Sachs and ethics law expert Avery Aisenstark) responded with amendments that would result in an ethics law that meets State’s standards and provides for an independent Ethics Commission with the ability to fulfill its statutory duties. It is these amendments Commissioner Ransom plans to introduce. (For the amendments and explanatory comments, see the first item under Commentary on this website.)
Our county’s ethics law was three long, difficult years in the making. It is an embarrassment that it does not meet the minimum standard required by the State. Queen Anne’s County, its employees, officials, and the general citizenry, deserve an ethics code they can be proud of. Democracy depends on the citizens’ ability to trust their government to act in the public’s behalf; a good, fair ethics code is the foundation of that trust.
In response to a request from Commissioner Ransom, Ethics Matters and its counsel have proposed amendments to the QAC Ethics Code. These revisions would result in a Code that:
1) meets minimum State standards;
2) creates an independent Ethics Commission that is not inappropriately subject to the will of the
3) enables the Ethics Commission to perform its statutory duty of “hearing and deciding” complaints effectively.
To see the precedents in other counties and to understand how the current code falls short of State standards, go to Commentary on this website for the proposed amendments and comments.
The following is a summary of the proposed amendments:
Applicability.
Ensures that Boards and Commissions are properly covered by ethics rules according to State law.
Definitions.
Corrects overly narrow definitions of “executive action” and “family member.”
Ethics Commission.
Removes broad and unnecessary disqualifications for membership on the Ethics Commission.
Restricts power of
Empowers Ethics Commission to select its own counsel, instead of having counsel both selected and paid by
Ethics Commission Hearings.
Provides Commission and respondent(s) with ability to obtain evidence necessary to resolve complaints.
Makes burden of proof necessary to find an ethics violation appropriate to a civil offence and in keeping with other counties.
Conflicts of Interest.
Restores restrictions (removed from current law) on County officials’ ownership and employment connections with companies doing business with their County agency.
Recognizes that officials’ contractual relationships (e.g. consulting, attorney-client) with private parties can give rise to conflicts of interest.
Gifts.
Restores restriction on gifts from lobbyists.
Empowers Ethics Commission to exempt specific gifts or classes of gifts on a written finding they are not detrimental to impartial conduct of County business.
Exemptions.
Corrects over-broad power to exempt part-time County officials and others from all the ethics rules.
On Tuesday, June 6, Commissioner Gene Ransom introduced two amendments to the County’s new Ethics Law. The first amendment addresses and corrects two problems ( the definition of “family member” and the exception/modification provision) raised by the State Ethics Commission in its April letter to the County stating that it could not approve the County’s new Ethics Law.
Ethics Matters believes there are other problems with the new Ethics Law that keep it from meeting State standards. Under the new Ethics Law:
- a government official or employee can have a financial interest in or be employed by a company that is doing business with his or her government agency;
- some officials who make decisions on behalf of the public have no accountability in the form of a financial disclosure requirement;
- large numbers of County employees do not have to meet any of the standards of the Ethics Code; and
- two provisions pertaining to lobbying have been weakened.
The State Ethics Commission has declined to approve the new County Ethics Law introduced by Mr. Cassell and adopted unanimously by the
The first of two problems cited by the State in its April 26 letter is the provision in the new County ethics law that allows a government official to decide on matters that directly affect a business owned by the official’s brother, sister, parent or child, as long as they don’t live in the official’s household. That means, according to the new County law, a government official can discuss and decide on a contract between the County and a company owned by his son. There is no longer a requirement for the County official to recuse him or herself in this situation.
Ethics Matters believes that in addition to the problems thus far cited by the State, there are additional shortcomings in the County’s new law that stand in the way of its approval by the State.
Query
The Board of Ethics Matters read the State’s letter at their May meeting. Board members wondered, “How it is possible that, after three years in the making, our County has ended up with an unlawful ethics law - one that the State cannot approve. Many counties exceed State requirements. Why is it so hard for us just to meet them? “
A BRIEF HISTORY OF THE NEW QAC ETHICS LAW
May 13, 2003
Commissioners make other changes that are incorporated into 05-04 – Amendment No. 3, introduced by Mr. Cassell.
Chair of Ethics Matters tells Commissioners at Press and Public Comment that 05-04-Amendment No. 3 contains unlawful provisions and it could not be approved by the State
May 16, 2006
Although there remain major problems with the County’s new ethics law and the numerous questionable provisions that the State Ethics Commission has not yet approved, Ethics Matters is pleased to report that two of our recent concerns (below) have been addressed. Another positive development is that at their last meeting, the Queen Anne’s County Ethics Commission unanimously voted to have a public comment period at the beginning and end of each meeting.
The changes in the financial disclosure form that Ethics Matters suggested were approved and put in place by the Ethics Commission. The Ethics Commission voted to send the new forms out by registered mail with a cover letter making sure the recipients were aware of their obligation to return the completed forms by April 10.
There are others besides the specified current officials and employees who must complete the financial disclosure form:
Candidates for
Any official or employee who leaves an office that requires financial disclosure must file, within 30 days after the departure date, the financial form that includes all information up to the date of departure.
Any person newly appointed to an office that requires financial disclosure must file, with his/her acceptance, the financial disclosure form containing all the necessary information for the previous year.
The Board of Elections is now giving out the financial disclosure forms to candidates along with the other necessary information for filing. Ethics Matters will be looking into whether those who vacate an office or are appointed to an office requiring financial disclosure are aware of and are following the law.
The County Commissioners amended the unacceptable provision of the proposed Human Resources Code to make it clear that the “employee’s appointing authority” has no jurisdiction over determining whether outside employment presents a financial conflict of interest with County employment. Such a determination is the responsibility of the independent Ethics Commission.
March 21, 2006
Ethics Matters is finding that it needs to watch all County ethics-related legislation carefully. Our most recent concern is an ill-considered amendment to the Human Resources Code regarding conflicts of interest and outside employment.
This amendment would give an employee’s appointing authority the power to determine whether the employee’s outside employment conflicts with his/her County service. But determining employment conflicts of interest is, according to the QAC Code, the power and duty of the Ethics Commission. This is as it should be. Decisions regarding an employee’s conflicts of interest should not be made by the employee’s boss, but by an independent Ethics Commission that has no stake in the decision and is guided by the principles and precedents of the Ethics Code.
This amendment is not the first time there has been troublesome legislation proposed or enacted regarding conflicts of interest and outside employment.
1. The Ethics Code, proposed by the County Commissioners in May 2005, completely eliminated the prohibition against employees “[h]olding an outside employment or contractual relationship that would affect or reasonably appear to affect their impartiality or independence of judgment.” This provision had been in the old 1984 code and was in the code proposed by the Ethics Commission. It is required by the State of Maryland. The State Ethics Commission made the County put this provision back into the QAC Ethics Code.
2. In the Amended Ethics Code passed November 2005, the Ethics Commission was given the power to exempt part-time officials and employees, whose outside employment did not create a conflict of interest, from having to comply with any provision of the Ethics Code (such as limitations on gifts, prohibitions of ownership conflicts, required financial disclosure). Ethics Matters believes that the State Ethics Commission will have problems with such sweeping and easily obtained exemptions.
3. Now, there is the proposed amendment to the Human Resources Code (discussed above) that gives an employee’s appointing authority (as opposed to the Ethics Commission) the power to determine whether there is a conflict of interest resulting from the employee’s outside employment.
February 21, 2006
Ethics Matters is pleased to report that the financial disclosure requirements of the ethics law are now back on the road to being implemented. Ethics Matters’ attorney Stephen Sachs wrote County Attorney Patrick Thompson expressing Ethics Matters’ belief that the County had improperly distributed obsolete financial disclosure forms and had not met the legal requirements of the new law. (See Sachs letter to Thompson re financial disclosure in Documents on this website) Subsequently, the County Ethics Commission voted last week to distribute a financial disclosure form that carries out the requirements of the current ethics law.
Ethics Matters gave testimony in support of Del. Smigiel’s bill, HB 85, to establish a “Task Force to Create Standards of Ethics for Planning and Zoning Boards.” You can read the testimony in Documents on this website.
On January 12, Ethics Matters asked the County to explain why they distributed the obsolete financial disclosure form based on the repealed 1984 ethics law instead of a disclosure form that incorporates the more demanding reporting requirements of the current law (adopted Nov. 15, 2005).
“You cannot hold people responsible for regulations that were not in effect. I am not sure why you believe there is not compliance.”
The County should realize that is explanation is not satisfactory. There is a big difference between, on one hand, holding people responsible for violations of a law that was not in effect (which would not be right) and, on the other hand, requiring people to meet the reporting requirements of the current law. The ethics law requires that by January 31 of each year, certain decision-making government officials and employees must file a financial disclosure form based on interests held during the previous year. Those who apply for these government positions or run for elected office are required to file the same financial disclosure form based on information from the prior year along with their job application or their registration as a candidate. There is no reason why these requirements of the current law, the one that is now in effect, should not be adhered to.
Ethics Matters’ attorneys Stephen Sachs and Avery Aisenstark contacted Patrick Thompson,
Commissioners Koval and Ransom expressed to Ethics Matters their surprise at the issuance of the obsolete financial disclosure forms. At their meeting on January 17, the
January 19,2006
County distributes obsolete financial disclosure forms
Last week the County distributed financial disclosure forms to be completed and filed by January 31. For some reason, the County used the financial disclosure form that went with the repealed 1984 ethics law.
This form falls far short of implementing the financial disclosure requirements of the new law. It only asks for gifts received. It does not ask about property owned or business interests held, as required by the new ethics law. (The minimal financial disclosure requirement of QAC’s 1984 ethics law was one of the reasons that law was the weakest in the State)
Not implementing the new ethics law’s requirements is tantamount to granting a blanket exemption to County officials and employees from the law’s financial disclosure requirements. This is plainly unlawful.
Ethics Matters has asked the County to tell us who made the decision not to implement the requirements of the County’s ethics law and the reasoning behind the decision. We will share their response with you.
Publishing company takes blame for discrepancies
The company that publishes the County code, General Code, has taken full responsibility for the textual differences between the Ethics Code as passed on Nov. 15, 2005 and as published as part of the
It is good that this situation has been straightened out. General Code, which encoded all the County’s laws last year, should not be making textual changes in the law without first securing County approval. The County should consider whether or not it should continue to use this company, and it should examine whether other County laws may have been improperly altered by General Code
January 12, 2006
THE NEW ETHICS LAW:
The new Ethics Code was adopted November 15, 2005 and became effective December 30, 2005.
A month after the County had adopted the ethics law, it still had not sent the new law to the State for approval. (It is common practice to send a draft of an ethics code to the State before voting on it to make sure it meets the State requirements.) Concerned that the County Ethics Commission would be put in the position of administering a law with unlawful provisions, Ethics Matters sent the State Ethics Commission a copy of the law. In the process of copying the law from the County code, we noticed that there was a discrepancy between the text of the law as adopted and the law as it appears in the
STATEMENT OF ETHICS MATTERS TO THE
January 5, 2006
We look forward to serving the cause of ethical government for Queen Anne’s County.
Our current 1984 County’s Ethics Code is the weakest in the State. You have now prepared another proposed revision, after your first revision was not approved by the State Ethics Commission. Underlying these revisions is the ethics code proposed over a year ago by the County Ethics Commission and introduced by Commissioner Koval -- a code that the State Ethics Commission indicated it would approve.
