maryland state ethics
commission
27th Annual
Report
January 1, 2005
through
december 31,
2005
General statutory implementation
The State Ethics
Commission met in regular session 9 times during Calendar Year 2005 and
considered issues related to all areas of its statutory mandate: financial
disclosure, conflict of interest, lobbyist disclosure and conduct restrictions,
local government ethics laws, school board ethics regulations, advisory
opinions, enforcement matters, employee training, lobbyist training and public
information activities.
The State Ethics
Commission, as directed in State Government Article § 15-205, must administer
the provisions of the Public Ethics Law; prescribe and provide forms for each
document required by the Public Ethics Law; retain as a public record each
document filed with the Commission for at least four years after receipt;
periodically review the adequacy of public ethics laws; review each statement
and report filed in accordance with the Public Ethics Law and notify officials
and employees of any omissions or deficiencies; and publish and make available
to persons subject to the Public Ethics Law, and to the public, information
that explains the provisions of the Law, the duties imposed by it, and the
means for enforcing it.
The Commission is
required to compile annually, by March 1st, a list of entities doing
business with the state during the preceding calendar year and make this
information available to individuals required to file annual financial
disclosure statements; to provide training courses for public officials and for
regulated lobbyists; and to submit to the General Assembly an annual report on
its activities.
In 1999, the
Legislature added § 15-602(d) to the Public Ethics Law, requiring the
Commission to develop procedures under which financial disclosure statements
could be filed electronically and without additional cost to the individual
filing the statement. In FY 2005 the
Commission received funding sufficient to proceed with this mandate, and
beginning in February 2005, electronic filing was offered to all financial
disclosure filers through a secure web site, https://efds.ethics.state.md.us. More than 6,000 of the 11,000 filers took
advantage of electronic filing. The
improved efficiency resulting from the electronic process permitted the
Commission staff to complete the review of more than 2,600 statements by the
end of May 2005, a process that took many months to accomplish in the review of
paper forms. Although some filers encountered
frustration with the new system, the Commission staff was able to assist all of
those who called the office for help, and the comments received were
overwhelmingly positive.
In 2001, the
Legislature added § 15-709 to the Public Ethics Law, requiring the Commission
to develop procedures under which lobbying reports could be filed
electronically without additional cost to the individual who would opt to file
electronically, and to make the filed reports available for public inspection
electronically. In 2005, the
Commission, working with the Canton Group, LLC, a technology contractor,
developed a process by which regulated lobbyists could begin the registration
process and complete and submit all lobbying reports electronically and by
which the public would have immediate access to electronically submitted
reports. Electronic registration for
lobbyists became available November 1, 2005, and electronic lobbying reporting
for event reports and activity reports for the lobbying period of November 1,
2005 through April 30, 2006 was on-line before the end of calendar year
2005.
The Commission staff
continued to place substantial emphasis on the training for public officials
and employees and regulated lobbyists.
In its Strategic Plan, the Commission asserted its commitment to
education and training on its belief that increased and improved education and
training will lead to an increase in advice responsibilities and a decrease in
the volume of enforcement actions.
Commission staff has continued to focus on providing training to smaller
groups of employees at their particular agencies, which has permitted the
training to address the specific ethical issues confronted by State employees
and public officials in their particular service to the public. This has resulted in a marked increase in
the requests for advice that come to the Commission from employees and public
officials. During calendar year 2005,
the Commission conducted 40 general ethics training programs for agencies,
boards and commissions, attended by 1987, focusing more specifically on
conflicts of interest and the electronic filing process for financial
disclosure statements. In addition, the
Commission staff conducted eleven conflict of interest, electronic filing and
procurement training sessions attended by an additional 430 public officials,
and members of public and special interest groups. The Commission staff also conducted ten lobbying training
programs, attended by 213 regulated lobbyists, and one program on forms
completion attended by an additional 6 lobbyists or their assistants. The lobbying programs focused on electronic
filing and general lobbying prohibitions and reporting requirements.
In June 2003, the
Commission conducted a complaint hearing on charges of lobbying violations by
lobbyist Bruce C. Bereano. The
Commission issued its decision and public order finding a violation of §
15-713(1), being engaged for lobbying purposes for contingent compensation. On December 28, 2004, the Honorable Raymond
Kane of the Howard County Circuit Court, in case No. 13-C-03-057038, upheld the
Commission’s decision and sanction of a 10-month suspension of Mr. Bereano’s
lobbying registrations. Mr. Bereano’s appeal of Judge Kane’s decision was heard
in the Court of Special Appeals on November 9, 2005. By the end of 2005, the Court of Special Appeals had not issued
its decision with regard to this appeal.
On July 11, 2005, by
the nomination of Speaker Michael Busch, Governor Ehrlich appointed Darryl
Jones to fill the vacancy created in January 2004 by Bruce Poole’s resignation
from the Commission. On October 15,
2005, Ava Feiner, appointed by Governor Ehrlich in 2003,
resigned from the Commission, prior to completion of her term. Janet McHugh, Esq. was appointed on October
17, 2005, to fill the remainder of Dr. Feiner’s term.
The
Fiscal Year 2006 budget was approved for General Funds of
$668,465 and Special Funds of $127,582.
The Maryland Public Ethics Law §§ 15-301 through 15-303 provides that the
State Ethics Commission may issue formal advisory opinions in response to
requests from officials, employees, lobbyists, and others who are subject to
the Ethics Law. Formal opinions
generally follow an appearance before the Commission by the requestor, are
published in the Maryland Register, and are accessible electronically through
State Documents in COMAR Title 19A. The
Commission regulations, COMAR 19A.01.02.05, also permit the staff and the
Commission to provide informal advice.
Informal advice generally result in a letter or email to the requestor
referencing prior formal and informal Commission opinions addressing similar
facts and issues.
The State Ethics Commission is responsible for interpreting the Public
Ethics Law. In late 1979, when the
Commission was established, most advice requests resulted in published formal
opinions. During its first five years
of operation, the Commission issued a total of 205 formal opinions, and during
the next five years, another 128 formal opinions were issued. As a result, there is a large body of
published opinions available to the Commission staff providing guidance in
response to advice requests. During the
twenty-seven years in existence, the Commission has issued a total of 488
formal opinions. During the past five years the number of formal opinions has
deceased while informal reviews and letter advice has increased. A major factor
reducing the need for formal Commission opinions is the large number of
existing opinions that provide guidance to the staff thus expediting the advice
process.
During Calendar-Year 2005, the Commission issued two (2) formal published
opinions. Both opinions addressed the
application of Section 15-501 of the Ethics Law. This provision in part
prohibits officials and employees from participating in State matters if a
party to the matter is a business entity that employs the official’s or
employee’s spouse, parent, child, brother or sister. Section 15-501(b) allows
the Commission to grant exceptions to this requirement by advisory opinion.
Opinion No. 05-01 allowed the Secretary of Transportation to participate in
matters regarding two Fortune 500 companies who are vendors of the Department
and who each employ one adult child of the Secretary. The children of the
Secretary were employed in locations outside of Maryland and in divisions or
program unrelated to the vendors’ business with the Department.
Opinion No. 05-02 allowed the Director of Operations of the Maryland Port
Administration to participate in matters involving an international shipping
carrier that employed his older brother in a different region of the country.
The brother’s duties did not have any relationship to the carrier’s operation
in the Port of Baltimore.
The Commission’s informal docket, initiated in 2002, logs requests for
advice resulting in informal advice from the staff or Commission. The log may include telephone advice or
responses to routine questions from individuals who either call, email or
walk-into the office. The Commission
and its staff provided informal advice in the following subject areas during
calendar years 2002 through 2005:
|
Subject Matter of the Advice |
Number of Requests |
|||
|
2005 |
2004 |
2003 |
2002 |
|
|
Lobbying
Registration, Reporting and Conduct |
9 |
11 |
18 |
53 |
|
Secondary
Employment Advice |
121 |
108 |
132 |
269 |
|
Participation
Advice |
21 |
17 |
8 |
3 |
|
Procurement
Restrictions |
15 |
6 |
7 |
10 |
|
Post-Employment
Advice |
23 |
13 |
13 |
6 |
|
Gift
Questions |
22 |
21 |
29 |
8 |
|
Other |
40 |
44 |
35 |
28 |
|
Total |
251 |
220 |
242 |
377 |
The number of informal
matters increased in 2005 compared to 2004. The number of informal matter had
decreased each year from calendar year 2002 to 2004. The increase in 2005 is attributable to an increase in requests
for secondary employment advice, for procurement ethics advice and for
post-employment advice.
The 121 informal
secondary employment requests considered in 2005 arose from the following
Departments and agencies:
|
Department |
Number of Requests |
|||
|
2005 |
2004 |
2003 |
2002 |
|
|
Department of Human Resources |
33 |
40 |
48 |
219 |
|
Department of Health and Mental Hygiene |
30 |
22 |
18 |
20 |
|
Department of Transportation |
13 |
4 |
9 |
4 |
|
Executive Department |
4 |
5 |
6 |
2 |
|
Department of Agriculture |
1 |
3 |
5 |
0 |
|
University System of Maryland |
5 |
2 |
5 |
2 |
|
Dept. of Public Safety & Correctional
Services |
4 |
3 |
4 |
2 |
|
Department of Natural Resources |
6 |
4 |
3 |
1 |
|
Other Agencies/Departments |
25 |
25 |
34 |
19 |
|
Totals |
121 |
108 |
132 |
269 |
During calendar year
2005, the Commission’s Executive Director, General Counsel, Staff Counsel, and
Assistant Counsel responded to more than 1,800 phone inquiries.
In 1990, the General
Assembly enacted legislation allowing the University System of Maryland (USM)
to grant to university faculty certain exemptions from the conflict of interest
provisions of the Public Ethics Law.
The exemptions were for “sponsored research and development”
activities. Sponsored research and
development was defined in the law as an “agreement to engage in basic or
applied research or development at a public senior higher education
institution, and includes transferring university-owned technology or providing
services by a faculty member to entities engaged in sponsored research or
development.” Faculty members were not
fully exempted from all Public Ethics Law requirements, and public disclosure
of the interest or secondary employment was required. The institution granting the exemption was required to maintain
the exemption as a public record and to file a copy with the State Ethics
Commission.
In 1996, the General
Assembly enacted the Public-Private Partnership Act. This law expanded the exemptions beyond faculty to include
vice-presidents and presidents of institutions as well as the chancellor and
vice-chancellors of the USM. The
legislation also broadened the exemption from the conflict of interest
provisions to include USM officials, faculty members, and employees. The USM Board of Regents and the USM
institutions adopted procedures pursuant to § 15-523 to allow the conflict of
interest exemptions. The USM Board of
Regents and seven of the affiliated institutions adopted policies, and the
Commission’s authority was limited to comment on the policy’s conformity to
Public-Private Partnership Act. The
definition of “sponsored research” was expanded to include “participation in
State economic development activities.”
The records filed by
the institutions with the Commission reflect a total of 104 faculty exemptions
granted by the university presidents between 1996 and 2004. These included exemptions at the University
of Baltimore (UMB), University of Maryland at Baltimore County (UMBC), and the
University of Maryland Biotechnology Institute. During calendar year 2005, USM institutions reported to the
Commission an additional 28 individual faculty members exemptions. The exemptions were from the following
institutions:
|
Institution |
Number of Exemptions |
|
University
of Maryland, Biotechnology Institute |
5 |
|
University
of Maryland, Baltimore County |
2 |
|
University
of Maryland, College Park |
19 |
|
University
of Maryland, Baltimore |
2 |
|
TOTAL FACULTY EXEMPTIONS |
28 |
In some instances the
individual faculty member had more than one interest exempted.
The financial disclosure program continued to process the identification of those required to file, to provide technical assistance to filers, and monitor compliance with the Law. In accordance with Public Ethics Law § 15-103, the Commission