29th Annual Report
January 1, 2007 through
december 31, 2007
General
statutory implementation
The State Ethics Commission met in regular session 9
times during Calendar Year 2007 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. It also met one time for the expressed purpose
of long term planning, at which meeting no other issues were considered.
The State Ethics Commission, as directed in State
Government Article § 15-205, administers the provisions of the Public Ethics
Law; prescribes and provides forms for each document required by the Public
Ethics Law; retains as a public record each document filed with the Commission
for at least four years after receipt; periodically reviews the adequacy of
public ethics laws; reviews each statement and report filed in accordance with
the Public Ethics Law and notifies officials and employees of any omissions or
deficiencies; and publishes and makes available to persons subject to the
Public Ethics Law, information that explains the provisions of the Law, the
duties imposed by it, and the means for enforcing it.
The Commission compiled by March 1, 2007, a list of
entities doing business with the State during the preceding calendar year and
made this information available to individuals required to file annual
financial disclosure statements. It also
provided training courses for public officials and for regulated lobbyists; and
submitted to the General Assembly an annual report on its activities for
calendar year 2006.
During calendar year 2007, the Commission continued
to encourage officials and employees to file his or her annual financial
disclosure statement electronically. During 2007, 9,624 statements were filed
electronically by officials and employees.
This represented approximately 71% of the 12,922 required to file.
Additionally, in 2007 the Commission made all lobbying
registrations, activity reports, and special event reports available
electronically. Lobbying registrations, event reports and activity reports were
either submitted electronically or electronically inputted by Commission staff,
and available to the public electronically from the Commission’s website, http://ethics.gov.state.md.us.
The Commission staff continued to place substantial
emphasis on the training for public officials and employees and regulated
lobbyists. Commission staff continued to
focus on providing training to smaller groups of employees at their particular
agencies in 2007. This permitted the training to address the specific ethical
issues confronted by State employees and public officials in their particular
service to the public. During calendar
year 2007, the Commission conducted 23 general ethics training programs for
agencies, boards and commissions, attended by 1,100 State employees and public
officials, focusing on conflicts of interest and the electronic filing process
for financial disclosure statements. In
addition, the Commission staff conducted 13 additional training sessions
addressing conflicts of interest, electronic filing and procurement attended by
an additional 390 members of public and special interest groups, bringing total
number of individuals who attended general ethics and conflicts of interest
training to 1,490. The Commission staff
also conducted 25 lobbying training programs, attended by 346 regulated lobbyists
pursuant to Public Ethics Law § 15-205(e). The lobbying programs focused on
electronic filing and the general lobbying conduct prohibitions in the Law, 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 on June 30, 2003, finding a violation of § 15-713(1) for 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. On November 9, 2006, the Court of Special
Appeals upheld Judge Kane’s decision. On
December 8, 2006, Mr. Bereano filed for reconsideration, and on December 29,
2006. On April 29, 2007, the Court of
Special Appeals issued it order denying the reconsideration and re-issued its
November 9, 2006 Opinion. The Court of
Appeals subsequently granted Mr. Bereano’s Petition for Writ of Certiorari. The case was argued before the Court of
Appeals on October 2, 2007 and was pending at the close of the calendar year.
At the end of June, 2007, Julian L. Lapides stepped
down as Chairman of the Commission. Robert F. Scholz was elected by the members
to serve as Chairman for the year beginning July 1, 2007. Suzanne S. Fox
retired as the Executive Director of the Commission on June 30, 2007. After a
significant search and recruitment, Robert A. Hahn was selected to replace Ms.
Fox. Mr. Hahn had over twenty-five years experience with the Commission as
Staff Counsel and General Counsel.
The Fiscal Year 2008 budget was approved for General
Funds of $638,278 and Special Funds of $263,588, for a total appropriate of
$901,866. The Commission submitted a budget amendment which was approved by the
Department of Budget & Management and the General Assembly budget
committees that allowed the Commission an additional position and a half. The
full time position was to be a compliance officer to address the concerns in
the 2006 Office of Legislative Audits performance audit regarding the timely filing
of financial disclosure statements by persons required to file disclosure. The
budget amendment also allowed for enhancements to both the financial disclosure
and lobbying electronic filing systems.
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’s regulations, COMAR
19A.01.02.05, also permit the staff and the Commission to provide informal
advice. Informal advice generally
results 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 its twenty-nine years in existence,
the Commission has issued a total of 496 formal opinions. During the past five
years the number of formal opinions has decreased while informal reviews and
letter advice have increased. A major factor reducing the need for formal
Commission opinions is the large number of existing opinions that provide
guidance to the staff in responding to requests for informal advice, thus
expediting the advice process.
During calendar year
2007, the Commission issued 5 formal published opinions. The first opinion (Opinion No. 07-01) was the
result of a request of an employee of the PenMar Development Corporation
(“PMDC”) regarding the application of the post-employment provisions of the
Ethics Law to his possible future employment with a publicly traded real estate
development trust that purchased
In Opinion No. 07-02, the
Commission granted an exception under § 15-501 of the Ethics Law to an employee
of State Highway Administration to allow the employee to participate in matters
involving the Intercounty Connector (“ICC”) design-build contracts, procurement
reviews and design reviews in which a consulting company that employed the
employee’s brother may be a subcontractor on an ICC proposal team. The Commission set forth guidelines in the
opinion to allow the employee to participate in some matters, but directed the
agency to reassign other matters directly involving the consulting company to
another employee.
In Opinion No. 07-03, the
Commission provided advice to an elected official of the Executive Department
regarding the application of the provisions of the Ethics Law to his and his
wife’s interest in becoming foster parents through the Maryland Department of
Human Resources’ (“DHR”) foster care program.
The Commission advised that the Ethics Law did not prohibit the official
from becoming a foster parent or participating in the program. However, the Ethics Law would restrict his
participation in certain official government matters related to the foster care
program. The Commission also provided
advice regarding the application of the prestige of office provision to this
request.
The Commission, by
Opinion No. 07-04, advised a Family Services Caseworker at a local Department of
Social Services (“DSS”) that she could continue her secondary employment as a
psychiatric unit technician with a hospital located in the same county as her
State employer. The Commission granted
an exception to allow the secondary employment pursuant to § 15-502 of the
Ethics Law and the Commission’s Exception to Outside Employment Prohibition
Regulations at COMAR 19A.02.01.03.
Finally, in Opinion No.
07-05, the Commission granted an exception to allow secondary employment to
another employee of a local DSS pursuant to § 15-502 of the Ethics Law and the
Commission’s Exception to Outside Employment Prohibition Regulations at COMAR
19A.02.01.03. The DSS employee involved
in this opinion proposed secondary employment as a contractual social worker
with a private adoption agency that facilitates international adoptions, which
is subject to the regulatory authority of her State agency.
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 for advice. The Commission and its staff provided
informal advice in the following subject areas during calendar years 2005
through 2007:
|
Subject
Matter of the Advice |
2007 |
2006 |
2005 |
|
Lobbying Registration,
Reporting and Conduct |
6 |
5 |
9 |
|
Secondary employment
Advice |
121 |
110 |
121 |
|
Participation Advice |
19 |
15 |
21 |
|
Procurement Restrictions |
10 |
8 |
15 |
|
Post-Employment Advice |
30 |
17 |
23 |
|
Gift Questions |
35 |
17 |
22 |
|
Other |
19 |
28 |
40 |
|
Total |
240 |
200 |
251 |
The number of informal
matters increased in 2007 compared to 2006. Many of these matters dealt with
State employees seeking outside or secondary employment. The 121 informal secondary employment
requests considered in 2007 arose from the following Departments and agencies:
DEPARTMENT |
2007 |
2006 |
2005 |
|
Department of Human
Resources |
31 |
45 |
33 |
|
Department of Health and
Mental Hygiene |
21 |
18 |
30 |
|
Department of
Transportation |
9 |
5 |
13 |
|
Executive Department |
4 |
1 |
4 |
|
Department of Agriculture |
4 |
1 |
1 |
|
University System of |
4 |
1 |
5 |
|
Dept. of Public Safety
& Correctional Services |
2 |
2 |
4 |
|
Department of Natural
Resources |
4 |
1 |
6 |
|
Other Agencies/Departments |
42 |
36 |
25 |
|
Totals |
121 |
110 |
121 |
The 42 “other agency” secondary employment requests
arose from 22 different State agencies.
The Department of Labor, Licensing, & Regulation submitted 5
secondary employment requests. The
Department of Business and Economic Development presented 5 requests. The
remaining 20 agencies presented 32 requests.
During calendar year 2007, the Commission’s Executive Director, General
Counsel, Staff Counsel, and Assistant Counsel responded to more than 1941 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 141 faculty exemptions granted by the university
presidents between 1996 and 2006, including exemptions at the University of
Baltimore (UMB), the University of Maryland at Baltimore County (UMBC), the
University of Maryland Biotechnology Institute (UMBI), the University of
Maryland Center for Environmental Science (UMCES), and the University of Maryland
College Park (UMCP). During calendar
year 2007, USM institutions reported to the Commission an additional 45
individual faculty members exemptions.
The
|
Institution |
|