QAC Circuit Court Issues Opinion "In the Matter of Barry Waterman" @ 05 Sep 2011

            The Circuit Court for Queen Anne’s County recently handed down its decision “In the Matter of Barry Waterman.” 

            If you recall, after Barry Waterman was appointed to the Planning Commission, a number of citizens and Ethics Matters joined in filing a complaint alleging that Mr. Waterman was in violation of the conflicts of interest provision (8-11 A-2) of the County’s Ethics Code prohibiting certain officials, including members of the Planning Commission, from being employed by or having a financial interest in an entity that is subject to the authority of the governmental unit with which the member is affiliated - a provision required by the State.

            The Ethics Commission found Mr. Waterman in violation of Section 8-11 A-2, and two others as well: 8-11 A-1 (prohibiting acting on behalf of the County on a matter that would have a direct impact on them or a family member or a business entity in which they have a financial interest); and 8-11 A-7 (intentional misuse of prestige of office or confidential information for their own private gain or that of another). 

            The Ethics Commission’s remedy for all three violations was to issue a cease and desist order of recusal from matters before the Planning Commission that have a direct financial impact on him, his family or a business entity in which he or a family member has an interest.  It specifically required him to cease and desist from participating in matters in regarding Wheatlands and the Queenstown Comprehensive Plan as well as the sewer going down Route 8.  Mr. Waterman appealed the decision of the Ethics Commission to the Circuit Court.

            The Circuit Court affirmed the Ethics Commission’s decision that Mr. Waterman was in violation of the conflicts provision 8-11 A-2, and it affirmed the Commission’s order to “cease and desist in any activity as a member of the Queen Anne’s County Planning Commission that relates to the Queenstown Comprehensive Plan.”   

            The Circuit Court further ruled that the Ethics Commission’s finding of violations of 8-11 A-1 and -7 and its remedy of a cease and desist order for potential conflicts “that may never come to fruition”, like the sewer down Route 8 (where Mr. Waterman and his family own numerous lots) or other issues presenting possible conflicts that had not yet come before the Planning Commission, were not “appropriate.” Accordingly, the Court reversed the Ethics Commission’s decision as to violations of 8-11 A-1 and -7.

            The Court’s rationale for its decision stressed that “the Ethics Code is absolutely essential to our system of government”, and a “violation” of it can be either an “act” or it can simply be “descriptive” of a status like having a conflict.   According to the Court, the Ethics Commission rightly concluded that  Mr. Waterman violates 8-11 A-2 just by being on the Planning Commission while having a financial interest in developing Wheatlands, but that it erred in finding violations of the other two provisions, which “require affirmative acts, not passive ones.”

            In sum, the Court upheld the finding of the Ethics Commission that Mr. Waterman, as a member of the Planning Commission, is in violation of the County Ethics Code due to his having a financial interest in a business entity that is subject to the authority of the Planning Commission, and it upheld the Ethics Commission’s remedy for this violation of recusal from anything to do with the Queenstown Comprehensive Plan.  The Court also ruled, however, that the Ethics Commission could not find him in violation of the Ethics Code and order him to “cease and desist” from actions that had not yet occurred.

            Unless either side appeals, the case will now go back before the Ethics Commission for the entry of an order consistent with the court’s judgment.

For the QAC Ethics Commission’s clarification of what “recusal” entails, please look under "Documents" on this website.  For the complete Opinion of the Circuit Court, look under “Opinions” on this website.   

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