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(a) Creation. The Montgomery County Ethics Commission is established. The Commission has 5 members. Each Commission member is appointed by the County Executive and confirmed by the Council.
(b) Composition; Qualifications for Membership. Each member of the Commission must meet the following qualifications:
(1) The member must reside in the County and be registered to vote in the County.
(2) During the member's term of office, the member must not:
(A) hold or be a candidate for any state, County or local elected or appointed office;
(B) be an employee of:
(i) the state;
(ii) a political subdivision of the state; or
(iii) a public body created by the state or a political subdivision of the state;
(C) be an employee or officer of a political party;
(D) participate (except by voting or contributing money) in any state, County, or local political campaign;
(E) participate (except by voting or contributing money) in support of or opposition to any question placed on the ballot by state, County, or local government, except a question that directly affects the Commission; or
(F) be a lobbyist.
(3) No more than 3 members may be registered to vote in primary elections of the same political party.
(c) Term. Commission members serve for a term of 4 years. The terms of no more than 2 members may expire in any one year. Any vacancy must be filled only for the remainder of the unexpired term. A Commission member serves until the Council confirms a successor unless the member resigns before a successor is confirmed.
(d) Chair. The Commission must select a chair annually. The Commission may select other officers annually as it finds appropriate.
(e) Removal.
(1) The Council or the County Executive may initiate the removal of a Commission member for:
(A) neglect of duty;
(B) misconduct in office;
(C) disability that renders the member unable to perform the duties of office; or
(D) violation of law.
(2) The Council or the County Executive must give the member written notice of the reason for the removal. The member is entitled to a hearing held under Chapter 2A. If the County Executive initiates the removal, the hearing must be held by the Council or a hearing officer designated by the Council. If the Council initiates the removal, the hearing must be held by the County Executive or a hearing officer designated by the Executive.
(3) A member is removed if the Council and the County Executive concur in removal.
(4) If the County Executive does not approve a removal within 14 days after the Council votes to remove a member, the Council may remove the Commission member without the approval of the County Executive by a vote which would be sufficient to enact legislation over the disapproval of the Executive under Section 208 of the Charter. The Council must take this action within 30 days after it first voted to remove the member.
(f) Administrative Support.
(1) The Commission must be allocated merit system staff, separate office space, equipment, and supplies within the limits of the Commission's appropriations. Commission staff serve at the Commission’s direction to perform duties assigned by the Commission. The Commission must appoint a staff director/chief counsel to perform duties assigned by the Commission, and may remove the staff director/chief counsel. Subject to the general supervision of the Commission, the staff director/chief counsel must appoint and supervise and may remove other Commission staff. The appointment, retention, and removal of all Commission staff must be subject to applicable merit system laws and regulations. The staff director/chief counsel must be an attorney licensed to practice law in Maryland, and may advise and represent the Commission without the approval or supervision of the County Attorney.
(2) The Commission may ask the County Attorney to provide an opinion on any legal issue relating to the Commission's duties,
(3) The County Attorney must, on request of the Commission, provide the Commission with legal services. The County Attorney must provide an attorney to prosecute a case before the Commission under Section 19A-10 unless the Commission assigns or retains a different attorney or other staff member to perform that function. An individual attorney in the office of the County Attorney who is assigned to provide general legal advice to the Commission must not be an investigator under Section 19A-9 or prosecute a case before the Commission under Section 19A-10 for one year after the attorney's Ethics Commission assignment ends.
(4) The Commission may retain legal services from persons outside the Office of the County Attorney and without the approval of the County Attorney if:
(A) the Commission finds that obtaining independent legal services is necessary for the Commission effectively to perform its responsibilities; and
(B) the County Council approves the Commission’s decision to select legal counsel and appropriates sufficient funds to cover the cost of the legal services. (1990 L.M.C., ch. 21, § 1; FY 1991 L.M.C., ch. 9, § 1; 1994 L.M.C., ch. 25, § 1; 1997 L.M.C., ch. 37, § 1; 1999 L.M.C., ch. 13, § 1; 2010 L.M.C., ch. 38, § 1.)
Editor’s note—2010 L.M.C., ch. 38, § 3, states, in part: The position of Executive Director of the Ethics Commission is abolished by operation of law on the date that the Commission appoints a staff director/chief counsel, as authorized by County Code Section 19A-5(f), as amended by Section 1 of this Act.
The above section is cited in FOP, Montgomery County Lodge No. 35 v. Mehrling, 343 Md. 155, 680 A.2d 1052 (1996).
See County Attorney Opinion dated 4/13/99-A discussing what should occur when an Ethics Commission member holds over as a result of the Council not having confirmed a newly appointed member.
(a) Authority. The Commission may:
(1) conduct investigations under Section 19A-9;
(2) authorize the issuance of summonses and subpoenas, and administer oaths and affirmations;
(3) impose sanctions under Section 19A-10;
(4) adopt regulations to implement this Chapter under method (2);
(5) extend a deadline for distribution or filing of forms for up to 6 months if the Commission finds that the deadline creates an unreasonable burden. An extension may apply to an individual or a class of individuals. The extension must be in writing. However, the Commission must not extend the time in which a complaint must be filed under Section 19A-10;
(6) conduct public education and information programs regarding the purpose and implementation of this Chapter;
(7) publish opinions under Section 19A-7;
(8) establish procedures to govern the conduct of Commission affairs;
(9) interpret this Chapter and advise persons as to its application; and
(10) require each compensated public employee to attend a Public Ethics training course of at least one hour on the following schedule:
(A) at least once every 3 years for a public employee holding a merit or a non-merit County position who is required to file a financial disclosure statement;
(B) within 30 days after beginning service as County Executive or Councilmember unless the person has attended a training course within 3 years before that date; and
(C) at such times as the Commission determines for:
(i) every other public employee; and
(11) take all other necessary acts to carry out the purposes of this Chapter.
(b) Duties. The Commission must:
(1) prepare and distribute all financial disclosure forms under Article IV and lobbying disclosure forms under Article V;
(2) maintain, as official custodian, forms and records filed under this Chapter;
(3) act on a complaint filed under Section 19A-10;
(4) respond to a request for a waiver under Section 19A-8;
(5) act on a request for other employment approval under Section 19A-12; and
(6) respond to a request for an advisory opinion submitted under Section 19A-7.
(c) Appeals. The subject of a final decision finding a violation by the Commission on a complaint, or a person aggrieved by a final decision on a request for a waiver or request for other employment approval may appeal the decision to the Circuit Court under the applicable Maryland Rules of Procedure governing judicial review of administrative agency decisions. An appeal does not stay the effect of the Commission’s decision unless the court hearing the appeal orders a stay. Any party aggrieved by a judgment of the Circuit Court may appeal that judgment to the Court of Special Appeals.
(d) Request for rehearing or reconsideration.
(1) The subject of a final decision of the Commission finding a violation on a complaint or a person aggrieved by a final decision of the Commission on a request for waiver or request for other employment approval may ask the Commission for a rehearing or reconsideration.
(2) A request for rehearing or reconsideration:
(A) must be filed within 30 days after the issuance of the Commission's final decision; and
(B) must state in writing all reasons in support of the request.
(3) The filer of the request must mail or deliver a copy of the request to all parties of record.
(4) A request for rehearing or reconsideration does not stay the effect of the Commission's decision unless the Commission orders otherwise.
(5) A request for rehearing or reconsideration stays the time in which an appeal under subsection (c) may be filed until the Commission takes final action on the request.
(e) Cooperation with Inspector General. The Commission may ask the Inspector General to investigate any matter within the Inspector General’s or the Commission’s jurisdiction, and if the matter is within the Commission’s jurisdiction, to report any findings confidentially to the Commission. The Commission may disclose confidentially to the Inspector General any information it has that the Inspector General reasonably needs to perform statutory duties.
(f) Annual report. The Commission must publish an annual report each year, not later than March 1, summarizing the actions it has taken during the preceding calendar year and describing each waiver it approved and advisory opinion it issued during that year. The report must not mention the names of any individual, unless otherwise properly made public, who was the subject of any action or opinion. (1990 L.M.C., ch. 21, § 1; 1994 L.M.C., ch. 25, § 1; 1997 L.M.C., ch. 37, §1; 2003 L.M.C., ch. 15, § 1; 2021 L.M.C., ch. 4, §1.)
Editor's note—2003 L.M.C., ch. 15, § 2, states: Effective Date. Section 19A-6(c) of the County Code, as amended by Section 1 of this Act, applies to any appeal from an action of the Ethics Commission: (1) pending in the Circuit Court when this Act takes effect [November 6, 2003]; or (2) filed in the Circuit Court after this Act takes effect [November 6, 2003].
(a) Any person subject to this Chapter or Sections 2-109, 11B-51 or 11B-52(a) may ask the Commission for an advisory opinion on the meaning or application of this Chapter or Sections 2-109, 11B-51 or 11B-52(a) to that person. A supervisor or department head may ask the Commission for an advisory opinion about the meaning or application of this Chapter or Sections 2-109, 11B-51 or 11B-52(a) to the employment-related conduct of any public employee supervised by the supervisor or department head. Unless the subject of the opinion authorizes disclosure, the Commission must keep the names of the requesting party and the subject of the opinion confidential.
(b) The Commission must publish each opinion when it is issued unless the Commission finds that the privacy interest of a public employee or other person clearly and substantially outweighs the public's needs to be informed about Commission actions. The Commission at least annually must publish a list of all unpublished opinions, with the reason why each opinion was not published. The Commission must take all reasonable steps consistent with making the opinion useful for public guidance to keep confidential the identity of any person who is affected by the opinion request. (1990 L.M.C., ch. 21, § 1; 1997 L.M.C., ch. 37, §1.)
Editor’s note-The above section is interpreted in Sugarloaf Citizens Assn. v. Gudis, 319 Md. 558, 573 A.2d 1325 (1990).
See County Attorney Opinion dated 7/8/02 describing the extent to which quasi-judicial officials may engage in political activities.
(a) After receiving a written request, the Commission may grant to a public employee or a class of public employees a waiver of the prohibitions of this Chapter and Sections 11B-51 and 11B-52(a) if it finds that:
(1) the best interests of the County would be served by granting the waiver;
(2) the importance to the County of a public employee or class of employees performing official duties outweighs the actual or potential harm of any conflict of interest; and
(3) granting the waiver will not give a public employee or class of employees an unfair economic advantage over other public employees or members of the public.
(b) After receiving a written request, the Commission may waive the prohibitions of subsection 19A-12(b) if it finds that:
(1) the waiver is needed to ensure that competent services to the County are timely and available;
(2) failing to grant the waiver may reduce the ability of the County to hire or retain highly qualified public employees; or
(3) the proposed employment is not likely to create an actual conflict of interest.
(c) After receiving a written request, the Commission may waive the prohibitions of Section 19A-13(b) if it finds that:
(1) failing to grant the waiver may reduce the ability of the County to hire or retain highly qualified public employees; or
(2) the proposed employment is not likely to create an actual conflict of interest.
(d) The Commission may waive the prohibitions of Sections 19A-12 or 19A-13 without making the findings required in subsection (b) or (c) if an employer certifies, and the Commission agrees, that releasing pertinent facts about the proposed other employment is not in the interest of effective law enforcement or the national security of the United States.
(e) The Commission may impose appropriate conditions to fulfill the purposes of this Chapter when it grants a waiver.
(f) Each waiver request must:
(1) be in writing;
(2) be signed under oath by the public employee who applies for the waiver;
(3) disclose all material facts;
(4) show how the employee meets the applicable waiver standard, and
(5) include a statement from the public employee’s agency head (or the Chief Administrative Officer if the employee is not supervised by an agency head) indicating whether the agency head concurs with the waiver request.
(g) The Commission must disclose to the public any waiver that it grants and, on request of any person, must disclose the underlying waiver request and any statement filed under subsection (f)(5) from the employee’s agency head or the Chief Administrative Officer. If the Commission denies a request for a waiver, the Commission may publish its response as an advisory opinion under Section 19A-7(b). But the identity of any public employee who applies for a waiver must be kept confidential until the waiver is granted. The Commission may reveal the identity of any public employee who applies for a waiver that is not granted if:
(1) the public employee authorizes public disclosure; or
(2) the Commission has reasonable cause to believe that the public employee has engaged in the conduct for which the waiver was sought.
(h) After giving the public employee notice and an opportunity to respond, the Commission may revoke any waiver if it finds that the public employee who applied for the waiver did not disclose a material fact in the waiver request.
(i) The Commission must include the pertinent facts in each waiver.
(j) The Commission must promptly notify the State Ethics Commission, the Chief Administrative Officer, and the Council when it waives any prohibition of this Chapter for any class of public employees. (1990 L.M.C., ch. 21, § 1; 1997 L.M.C., ch. 37, § 1; 2010 L.M.C., ch. 5, § 1; 2016 L.M.C., ch. 2, § 1.)
Editor’s note-The above section is cited in FOP, Montgomery County Lodge No. 35 v. Mehrling, 343 Md. 155, 680 A.2d 1052 (1996).
(a) The Commission may on its own initiative investigate any matter that the Commission believes may constitute a violation of this Chapter or Sections 2-109, 11B-51 or 11B-52(a) if the Commission finds in writing that an investigation is necessary to resolve the matter.
(b) Any investigation must be conducted by the staff of the Commission, the County Attorney, or a special counsel or other person temporarily retained by the Commission to conduct the investigation. The Commission must not actively participate in any investigations.
(c) An investigator acting under the authority of the Commission may require any person to:
(1) respond under oath to written questions within 30 days;
(2) produce verified copies of records within 30 days; and
(3) on 15 days notice, attend a deposition to answer under oath questions asked by the investigator.
The investigator must disclose to the person from whom information is sought the general nature and purpose of the inquiry. A person must not refuse to answer written questions, produce records, attend a deposition, or answer questions at a deposition unless the refusal is permitted by law. The investigator may seek from a court of competent jurisdiction an order compelling compliance with this subsection.
(d) The identity of any person who supplies information to an investigator and the report of the investigator must be kept confidential, except as otherwise expressly provided in this Chapter.
(e) The investigator must give the Commission a confidential written report of the investigator's factual findings, the sources of information, and the identity of each person providing information. (1990 L.M.C., ch. 21, § 1; 1997 L.M.C., ch. 37, §1.)
Editor’s note—See County Attorney Opinion dated 8/23/02 describing the elements required for a complaint to the Ethics Commission to initiate an investigation.
(a) (1) Any individual may file a confidential written complaint with the Commission. The complaint must allege facts under oath that would support a reasonable person in concluding that a violation of this Chapter or Sections 2-109, 11B-51 or 11B-52(a) occurred.
(2) (A) The complaint must be filed within the later of 2 years after:
(i) the alleged violation; or
(ii) the complainant learned or should have learned of facts that would lead a reasonable person to conclude that a violation occurred.
(B) A complaint may not be filed more than 6 years after the alleged violation occurred.
(3) The Commission may refer the complaint to Commission staff or the County Attorney for investigation under Section 19A-9 or may retain a special counsel or other person to investigate.
(4) If the complaint does not allege facts sufficient to state a violation of this Chapter or the Commission finds that dismissal is consistent with the purpose of this Chapter, the Commission may dismiss the complaint. The Commission must inform the complainant of its decision to dismiss the complaint. The Commission may inform the subject of the complaint that the complaint was filed and dismissed but must not disclose the identity of the complainant.
(b) The Commission may file, on its own motion, a complaint based on a report received from an investigator under Section 19A-9, if the complaint is filed within the time limits established in subsection (a).
(c) If, based on a complaint and a report, if any, submitted under Section 19A-9, the Commission finds reasonable cause to believe that a violation of this Chapter or Sections 2-109, 11B-51 or 11B-52(a) has occurred, the Commission must hold an adjudicatory hearing. However, the Commission may dispose of a matter by consent order instead of holding an adjudicatory hearing.
(d) If the Commission holds an adjudicatory hearing, the Commission must:
(1) give the subject of the complaint a copy of the complaint, including the identity of the complainant; and
(2) give the subject of the complaint copies of those portions of approved minutes of the Commission relating to the complaint, and any report issued under Section 19A-9.
(e) The Commission may:
(1) issue summonses and subpoenas to compel attendance at a hearing;
(2) require any person to produce records at a hearing; and
(3) administer oaths or affirmations to witnesses.
(f) The parties to the hearing are the subject of the complaint and the County. The prosecuting attorney may be the investigator who issued a report under Section 19A-9, an attorney in the County Attorney’s office, or a special counsel. Each party may be represented by counsel. Each party may present evidence and cross-examine witnesses. The subject of the complaint may require the Commission to issue subpoenas for witnesses and documents to the same extent a party in litigation in state court would be entitled to the summons or subpoena.
(g) The rules of evidence used in judicial proceedings do not apply. The Commission may admit and give appropriate weight to evidence, including hearsay, that possesses probative value commonly accepted by reasonable and prudent persons.
(h) A hearing is closed to the public. However, the Commission may in its sole discretion open the hearing to the public if the subject of the complaint requests that the hearing be open. The Commission may issue additional rules of procedure governing an adjudicatory hearing.
(i) The Commission must make written findings of fact and conclusions of law based on the record made at the hearing. If after a hearing the Commission finds that no violation of this Chapter has occurred, the Commission must dismiss the complaint.
(j) If the Commission dismisses a complaint without holding a hearing or after holding a closed hearing, the Commission must not release to the public the identity of the subject of the complaint, the complainant, or any witness.
(k) If the Commission finds that a violation of this Chapter has occurred, the Commission must publicly disclose its findings and conclusions, including the identity of the subject of the complaint, the complainant, and the witnesses.
(l) The Commission must promptly notify the complainant and the subject of the complaint of its findings and conclusions and the disposition of the complaint.
(1) seek injunctive relief under Section 19A-27;
(2) proceed under Section 19A-28;
(3) seek recovery under Section 19A-29;
(4) seek the imposition of disciplinary action by appropriate public employees under Section 19A-30;
(5) order the subject of the complaint to stop any violation;
(6) issue a public or private reprimand, and
(7) impose a fine which does not exceed $1000.
(n) The Commission may, at any time, refer to an appropriate prosecuting attorney any information that indicates that a criminal offense may have occurred. The Commission may, at any time, share confidential information about a pending matter with an employee’s appointing official and the County Attorney
(o) A public employee must not retaliate against an individual for:
(1) communicating with the Commission; or
(1990 L.M.C., ch. 21, § 1; 1997 L.M.C., ch. 37, § 1; 2010 L.M.C., ch. 5, § 1; 2021 L.M.C., ch. 4, § 1; 2022 L.M.C., ch. 33, § 1.)
Editor’s note—See County Attorney Opinion dated 12/17/08 discussing the authority and role of the Merit System Protection Board and the role of the County Attorney as legal adviser. See County Attorney Opinion dated 8/23/02 describing the elements required for a complaint to the Ethics Commission to initiate an investigation.
2010 L.M.C., ch. 5, § 2, states in part. This Act takes effect on April 1, 2010. The amendment to Section 19A-10 made in Section 1 of this Act applies to any complaint filed after this Act takes effect.
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