Ethics Matters, Inc.

 

Our Congratulations

 The County Ethics Commission recently approved its Annual Report for 2007.  This excellent report is available on this website under Documents.  It should be widely read. The Report does a fine job of informing the reader about the duties of this important Commission, and it provides accountability by detailing the Commission’s activities during the last year. 

 

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

 We have two that we feel are important to note.

 

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 County Commissioners appointed two new members to the Ethics Commission and reappointed a third as an alternate.  The new appointees are Benjamin Tilghman of Centreville and Harold Wilson of Chester. 

 Benjamin Tilghman is active in farming, managing his farm outside Centreville.  He retired in 2004, following a career in book publishing.  Mr. Wilson had a 30-year career in management of non-profit housing organizations and international development.  He is currently a writer of fiction and poetry.

 Returning Commission member Francis Roudiez was appointed to serve as alternate. The other members of the Commission are Robert Mueller, Kendall Ruffatto, and Nanese Hawthorne. 

 Ethics Matters would like to express its thanks to these six volunteer Ethics Commission members for the time and effort they devote to our County and to promoting ethical governance.  Our county depends on volunteers like these men and women.  They deserve the thanks and appreciation of every citizen.

 Advisory Opinions Available Online!  Ethics Matters is now publishing the Ethics Commission’s Advisory Opinions on our website (www.ethicsmattersinc.org) under “Documents.”  The opinions are organized by issue (conflicts, financial disclosure, applicability) and then by date, beginning in 2007. 

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.

 Done Right:  The Ethics Commission has been diligent and fair in dealing with those who, after multiple requests and warnings, failed without good cause to submit their financial disclosure form by the January due date.

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.

Meanwhile, advised that there was no conflict, the resigned Member continued to act as a member of the Ethics Commission, participating in its discussions and voting on issues before it - while at the same time having a financial interest in the Counsel's law firm.  This is, simply put, a situation expressly prohibited by the Ethics Law.

It is particularly unfortunate that this situation involves the Ethics Commission itself.

The Ethics Commsiion is accountable for both its good works and for its mistakes.  Ethics Matters has noted their good works at evey opportunity.  We hope that the Ethics Commsiion will recognize the presence of a prohibited conflict in this situation by withdrawing their two erroneous and misleading opinions.

 

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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 County Commissioners, this provision was never questioned or changed.

 

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 County Employees, Officials and Citizens.”  It is available at our Ethics Matters website (www.ethicsmattersinc.org ) under DOCUMENTS, directly below the ethics code.  The Ethics Commission will be distributing this guide to all County employees and officials as well making it available at County libraries.  Hopefully, the County website will post this useful document before long.

 

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 County Boards and Commissions at the June12 meeting of the Ethics Commission. Amanda Conn of the Funk & Bolton law firm gave a training session on the Maryland Open Meetings Act and Public Information Act for the Ethics Commission, its counsel, and interested chairmen of other County Boards and Commissions.  These two laws are complex and have notable exceptions.  Ms. Conn’s presentation and accompanying handouts are important to all the County’s Boards and Commissions because they must function within the requirements imposed by these two State laws.

 

            The County Commissioners are to be congratulated for providing this workshop.  Ethics Matters wishes they would distribute Ms. Conn’s handouts widely, now and in the future, and make her expertise on these two laws available by phone to County Boards, Commissions, and Committees who have questions or need assistance in interpretation.  These citizen bodies -- most of which are volunteer -- save the County considerable money each year as they supply their expertise, make decisions, and/or give advice.  The County should provide the support necessary to keep them from acting in violation of State laws. 

 

            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 County Commissioners create a new board, commission, or job, they cannot modify the requirements that the Ethics Law imposes unless they do so by statute.  The Ethics Commission alone has the ability to grant exceptions and/or modify the financial disclosure, gifts, and conflicts provisions for particular situations and then only if the Ethics Commission determines that applying the provisions would:

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 County Commissioners announced the appointment of four new members and an alternate to the county Ethics Commission.  The new members are Robert Mueller, C. Irving Pindar, Kendall Ruffato and Shannon McClellan. The alternate is Nanese Hawthorne.

            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 County Commissioners have enacted a good ethics law that meets State standards and appointed five new members to the newly expanded Ethics Commission to administer it. We appreciate the time and dedication you are giving to the County by serving on the Ethics Commission.

 

             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 Maryland’s Open Meetings Act and Public Information Act.  We are firm believers in the value of all three of these laws, and we support you as you work within them. 

 

            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 County Commissioners completed a package of proposed amendments to the County’s Ethics Code.  (See Provisions of Proposed Ethics Amendments below.) 

 

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 County Attorney).

§        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 County Commissioners.

 

Definitions:

§        “subject to the authority of” defined and used consistently throughout code

 

 

 

Press and Pulic Comment 

County Commissioners Meeting 10/31/06

 

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 

County Commissioners Mtg. 10.24.06

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 Maryland, to the new law, introduced by Mr. Cassell and passed last November. It does not meet the minimum standard required by the State.

 

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 County Commissioners amend the Ethics Law to provide an “enforcement mechanism” for maintaining the confidentiality of complaints. 

            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 County Attorney advises the County Commissioners on the Ethics Commission’s request. Some counties impose sanctions against individuals who file multiple frivolous complaints, but none that we know of attempts to impose a gag order.

           

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.

 Tuesday evening, September 26, the County Commissioners held a hearing on six more amendments to the County Ethics Law.  Like the two amendments passed a few weeks ago, three of the six amendments were written in order to get the County ethics law (passed November 2005) up to the State’s minimum standards for county ethics laws. These amendments related to lobbying, gifts, and the officials who are subject to financial disclosure requirements.

 The three other amendments dealt with the ability of the Ethics Commission to enforce the ethics law and function as an independent body.  Ethics Matters’ testimony on these amendments is below.  In testifying on 06-25, Ethics Matters noted that there is still a problem with the Conflicts of Interest provisions which will undoubtedly come up when the County Commissioners resubmit the amended ethics law to the State Ethics Commission for a determination as to whether it now meets State requirements.

 Testimony on 06-25 – Dismissal of Ethics Commission and comment on conflicts issue

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 Maryland - and provided one that the State said it would likely approve.  The response was a motion to dismiss “with gratitude” those citizens who had worked long and hard on the new law.  A motion was made and then tabled.  The threat of dismissal sat out there on the table, hanging over the heads of the citizens on the Ethics Commission for weeks before it was finally voted down.     

 This amendment should prevent the kind of treatment that occurred when there is a disagreement between the County Commissioners and citizens serving on an independent commission. As State Ethics laws and Maryland county ethics codes typically provide, dismissal of Ethics Commission members should only be for good cause and with an opportunity for a hearing. We hope you will vote for this amendment and provide current and future Ethics Commission volunteers protection from threats of dismissal without an opportunity to be heard.

 I’d like to use the remainder of my time to draw your attention to an issue contained in the State Ethics Commission’s letter to you.

 In its July 25 letter to you, the State raised questions about the required conflicts of interest provision that prohibits County employees from working for a company that is doing business with their government agency.  You need to address the State’s questions. As the State notes, under our present law, it is not clear that such secondary employment is prohibited, as it must be if our code is to meet minimum State standards. 

 If unresolved, this issue will surely come up when you resubmit the amended ethics law to the State Ethics Commission for a determination as to whether it now meets State requirements.

 Testimony on 06-26 – Appointment of Counsel for the Ethics Commission

This amendment makes no change in the present unsatisfactory situation concerning counsel for the Ethics Commission. You, the County Commissioners, appoint the Ethics Commission’s counsel.  Instead, we should follow the model of Cecil and Dorchester Counties, among others, and allow the Ethics Commission to appoint its own counsel.

 Look at a relevant episode that happened here in our county.  In the spring of 2005, you, the County Commissioners, launched an investigation of the volunteer citizens on the Ethics Commission, alleging that a letter written to a County employee as a result of an inquiry was “outside the scope and/or jurisdiction [of the Ethics Commission’s] authority”.  The Ethics Commission’s attorney, appointed by the County Commissioners, advised it as to how to deal with the inquiry.  The Ethics Commission followed counsel’s advice. The counsel wrote, signed, and mailed the letter to the County employee. 

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 County Commissioners hired a lawyer to conduct their investigation, but the Ethics Commission’s requests for a lawyer were ignored.  The volunteers on the Ethics Commission were on their own dealing with a government investigation which questioned their integrity and which required the production of pages and pages of documents and responses.

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 County Commissioners’ initial response was to refuse to pay these citizens’ legal bills because the lawyer who came to their rescue had not been hired by the County Commissioners!

 Another, and this time hypothetical, scenario.  What if someone brings an ethics complaint against one or more of the County Commissioners?  Is it proper for the Ethics Commission be advised in this situation by the lawyer those County Commissioners hired? 

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 County Commissioners, appoint at your sole discretion the volunteer members, but you should not have sole responsibility for hiring the attorney who advises them on this complex law.

 Testimony on 06-27 – Authority to administer Oaths

This amendment to the County Ethics Code would give the Ethics Commission the power to administer oaths and affirmations to persons testifying before it.  It is a good addition; it will increase the likelihood that testimony given in an Ethics Commission proceeding will be truthful. 

 But it should be clearly understood that the authority to administer oaths is no substitute for the authority to issue subpoenas – that is, the ability to require the production of necessary documents and the ability to require the attendance of knowledgeable witnesses.  You cannot administer an oath to a person who declines to appear and testify – and under Queen Anne’s County law the Ethics Commission has no ability to require a person to appear and testify.

The State Ethics Commission, in a letter dated July 26 this year, makes it quite clear that our County Ethics Commission should have both the authority to administer oaths and the authority to issue subpoenas.  The State Commission does not have the legal power to mandate inclusion of these powers in our Ethics Code, but it clearly recommends the adoption of both. Let me read the relevant paragraph from page 6 of the letter:

 “The [State] 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 subpoena 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 by a local employee, or even the costs related to gifts given to local officials and employees. Subpoena use may also assist in financial disclosure matters.  Several counties, similar in size to Queen Anne’s County, have included the subpoena power in recently revised ethics ordinances.”

 When our Ethics Commission cannot review relevant documents or hear the testimony of knowledgeable witnesses it is severely hampered in its ability to make decisions which enforce the law.  A law that cannot be effectively enforced is a weak law.

 

Last week the County Commissioners made progress in getting the County’s Ethics Law to meet State standards.  Although they defeated, 3-2, the bundle of amendments submitted by Ethics Matters, they did pass two amendments that strengthen the law and move it closer to the minimum required by the State.  The Commissioners also proposed some additional amendments which were either proposed by Ethics Matters or were modifications of amendments proposed by Ethics Matters.  Still unaddressed is an important Conflicts of Interest provision.

 

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 County Commissioners after each letter.  Apparently the State has made their position abundantly clear in yet another exchange, for the Commissioners voted 5-0 to change the standard of evidence to a “preponderance.”

 

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 County Commissioners refuse to give the Ethics Commission and respondents to an ethics complaint the ability to require that relevant evidence be produced and witnesses required to testify (subpoena power).  To quote the State Ethics Commission’s July 2006 letter to Queen Anne’s County:

 

“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.

 

County Ethics Commission Meetings are open to the public, except when they are in Executive session. The minutes of their meetings, including the announcement of actions taken in Executive Session, are public record.

Ethics Matters’ proposed amendments to the County Ethics Law were the subject of the County Commissioners’ workshop on August 15.  The amendments, requested and introduced by Commissioner Ransom, were discussed in light of a letter received by the County from Mr. Robert Hahn, Counsel to the State Ethics Commission.

 

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 County Attorney, to ask Mr. Hahn whether the State was requiring or suggesting the change from “clear and convincing” to “preponderance.”  Although the State did not require that the County Ethics Commission be given subpoena power, the Hahn letter recommended it.

 

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 1^st  meeting of the County Commissioners, Commissioner Gene Ransom introduced further amendments to the County Ethics Law.  These amendments were prepared by Ethics Matters at Mr. Ransom’s request.

 

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 County Commissioners and to the State Ethics Commission over the disservice to the County that is done by an unlawful Ethics Law.

 

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 County Commissioners that the Ransom amendments were “a good first step,” but there were still deficiencies in the code that would keep it from meeting minimum State standards. A number of citizens stated that they wanted an ethics code that met more than the minimum requirements; they wanted a code the County could be proud of - a model code.

 

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 1^st. 

 

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 County Commissioners will have a workshop on all of the pending amendments to the Ethics Law. Mr. Hahn’s letter is certain to be part of the discussion. It is our understanding that Mr. Thompson, the County Attorney, will be present.

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 County Attorney said a few weeks ago, it corrects mistakes in our ethics law.  I would