Allegany County, MD Ethics for Public Officials

Editor's Note: This bill also repealed former Ch. 98, Ethics for Public Officials, adopted 9-12-2002 by Bill No. 6-02, effective 10-27-2002 (Ch. 40 of the 1984 Code).

§ 98-1 Title; purpose; statutory authority.

§ 98-2 Applicability.

§ 98-3 Ethics Commission.

§ 98-4 Conflicts of interest.

§ 98-5 Financial disclosure by local elected officials and candidates.

§ 98-6 Financial disclosure by employees and appointed officials.

§ 98-7 Lobbying.

§ 98-8 Exemptions and modifications.

§ 98-9 Enforcement.

§ 98-10 Complaint procedures.

§ 98-11 Confidentiality.

§ 98-12 Advisory opinions.

§ 98-1 Title; purpose; statutory authority.

Short title. This chapter may be cited as the "Allegany County Public Ethics Law."

Purpose. The purpose of this chapter is to establish a Public Ethics Commission for Allegany County, Maryland with the authority to administer the provisions of the chapter; to receive and handle all complaints of ethics violations, and to publish regulations for the implementation of the purposes of said chapter; and to provide further for the defined prohibited conflicts of interest; to provide for financial disclosures of gifts; to provide for disclosures of lobbying activities and penalties for violations of all activities prescribed herein.

Authority. This chapter is adopted under the authority and in compliance with the provisions of the State Government Article, §§ 15-205 and 15-206, and Title 15, Subtitle 8, of the Annotated Code of Maryland, as amended.

§ 98-2 Applicability.

The following County officials shall be covered under the provisions of the Maryland Public Ethics Law and are exempt from this chapter: State's Attorney, Deputy State's Attorney, Assistant State's Attorney, Clerk of the Circuit Court, Judges of the Orphans Court, Register of Wills, Sheriff and Deputy Sheriffs, regardless of rank.

The provisions of this chapter apply to all Allegany County elected officials, employees and appointees to boards and commissions of Allegany County not otherwise exempted herein.

§ 98-3 Ethics Commission.

There is an Allegany County Ethics Commission that consists of five members appointed by the County Commissioners.

The Commission shall:

Devise, receive, and maintain all forms required by this chapter;

Develop procedures and policies for advisory opinion requests and provide published advisory opinions to persons subject to this chapter regarding the applicability of the provisions of this chapter to them;

Develop procedures and policies for the processing of complaints to make appropriate determinations regarding complaints filed by any person alleging violations of this chapter; and

Conduct a public information program regarding the purposes and application of this chapter.

The County Attorney shall advise the Commission.

The Commission shall certify to the State Ethics Commission on or before October 1 of each year that Allegany County is in compliance with the requirements of the State Government Article, Title 15, Subtitle 8, of the Annotated Code of Maryland, as amended, for elected local officials.

The Commission shall determine if changes to this chapter are required to be in compliance with the requirements of the State Government Article Title 15, Subtitle 8, of the Annotated Code of Maryland, as amended, and shall forward any recommended changes or amendments to the County Commissioners for enactment.

The Commission may adopt other policies and procedures to assist in the implementation of the Commission's programs established in this chapter.

§ 98-4 Conflicts of interest.

In this section, "qualified relative" means a spouse, parent, child or sibling.

All County elected officials, officials appointed to County boards and commissions subject to this chapter, and employees are subject to this section.

Participation prohibitions. Except as permitted by Commission regulation or opinion, an official or employee may not participate in:

Except in the exercise of an administrative of ministerial duty that does not affect the disposition or decision of the matter, any matter in which, to the knowledge of the official or employee, the official or employee, or a qualified relative of the official or employee has an interest.

Except in the exercise of an administrative or ministerial duty that does not affect the disposition or decision with respect to the matter, any matter in which any of the following is a party:

A business entity in which the official or employee has a direct financial interest of which the official or employee may be reasonably expected to know;

A business entity for which the official, employee, or a qualified relative of the official or employee is an officer, director, trustee, partner or employee;

A business entity with which the official or employee or, to the knowledge of the official or employee, a qualified relative is negotiating employment or has any arrangement concerning prospective employment.

If the contract reasonably could be expected to result in a conflict between the private interests of the official or employee and the official duties of the official or employee, a business entity that is a party to an existing contract with the official or employee, or which, to the knowledge of the official or employee, is a party to a contract with a qualified relative;

(e)

An entity, doing business with Allegany County, in which a direct financial interest is owned by another entity in which the official or employee has a direct financial interest, if the official or employee may be reasonably expected to know of both direct financial interests; or

(f)

A business entity that:

The official of employee knows is a creditor or obligee of the official or employee or a qualified relative of the official or employee with respect to a thing of economic value; and

As a creditor or obligee, is in a position to directly and substantially affect the interest of the official or employee or a qualified relative of the official or employee.

A person who is disqualified from participating under Subsection D(1) or (2) of this section shall disclose the nature and circumstances of the conflict and may participate or act if:

The disqualification leaves a body with less than a quorum capable of acting;

The disqualified official or employee is required by law to act; or

The disqualified official or employee is the only person authorized to act.

The prohibitions of Subsection D(1) and (2) of this section do not apply if participation is allowed by regulation or opinion of the Commission.

Employment and financial interest restrictions.

Except as permitted by regulation of the Commission, when the interest is disclosed or when the employment does not create a conflict of interest or appearance of conflict, an official or employee may not:

Be employed by or have a financial interest in any entity:

Subject to the authority of the official or employee or the Allegany County agency, board, commission with which the official or employee is affiliated; or

That is negotiating or has entered a contract with the agency, board, or commission with which the official or employee is affiliated; or

Hold any other employment relationship that would impair the impartiality or independence of judgment of the official or employee.

This prohibition does not apply to:

An official or employee who is appointed to a regulatory or licensing authority pursuant to a statutory requirement that persons subject to the jurisdiction of the authority be represented in appointments to the authority;

Subject to other provisions of law, a member of a board or commission in regard to a financial interest or employment held at the time of appointment, provided the financial interest or employment is publicly disclosed to the appointing authority and the Commission;

An official or employee whose duties are ministerial, if the private employment or financial interest does not create a conflict of interest or the appearance of a conflict of interest, as permitted by and in accordance with regulations adopted by the Commission; or

Employment or financial interests allowed by regulation of the Commission if the employment does not create a conflict of interest or the appearance of a conflict of interest or the financial interest is disclosed.

Post-employment limitations and restrictions.

A former official or employee may not assist or represent any party other than Allegany County for compensation in a case, contract, or other specific matter involving Allegany County if that matter is one in which the former official or employee significantly participated as an official or employee.

Until the conclusion of the next regular session that begins after the elected official leaves office, a former member of the Allegany County Board of Commissioners may not assist or represent another party for compensation in a matter that is the subject of legislative action.

Contingent compensation. Except in a judicial or quasi-judicial proceeding, an official or employee may not assist or represent a party for contingent compensation in any matter before or involving Allegany County.

Use of prestige of office.

An official or employee may not intentionally use the prestige of office or public position for the private gain of that official or employee or the private gain of another.

This subsection does not prohibit the performance of usual and customary constituent services by an elected local official without additional compensation.

Solicitation and acceptance of gifts.

An official or employee may not solicit any gift.

An official or employee may not directly solicit or facilitate the solicitation of a gift, on behalf of another person, from an individual regulated lobbyist.

An official or employee may not knowingly accept a gift, directly or indirectly, from a person that the official or employee knows or has the reason to know:

Is doing business with or seeking to do business with the Allegany County office, agency, board or commission with which the official or employee is affiliated;

Has financial interests that may be substantially and materially affected, in a manner distinguishable from the public generally, by the performance or nonperformance of the official duties of the official or employee;

Is engaged in an activity regulated or controlled by the official's or employee's governmental unit; or

Is a lobbyist with respect to matters within the jurisdiction of the official or employee.

Subsection I(4) of this section does not apply to a gift:

That would tend to impair the impartiality and the independence of judgment of the official or employee receiving the gift;

Of significant value that would give the appearance of impairing the impartiality and independence of judgment of the official or employee; or

Of significant value that the recipient official or employee believes or has reason to believe is designed to impair the impartiality and independence of judgment of the official or employee.

Notwithstanding Subsection I(3) of this section, an official or employee may accept the following:

Meals and beverages consumed in the presence of the donor or sponsoring entity;

Ceremonial gifts or awards that have insignificant monetary value;

Unsolicited gifts of nominal value that do not exceed $20 in cost or trivial items of informational value;

[Amended 9-5-2013 by Bill No. 5-2013, effective 10-20-2013]

Reasonable expenses for food, travel, lodging, and scheduled entertainment of the official or the employee at a meeting which is given in return for the participation of the official or employee in a panel or speaking engagement at the meeting;

(e)

Gifts of tickets or free admission extended to an elected local official to attend a charitable, cultural or political event, if the purpose of this gift or admission is a courtesy or ceremony extended to the elected official's office;

(f)

A specific gift or class of gifts that the Commission exempts from the operation of this subsection upon a finding, in writing, that acceptance of the gift or class of gifts would not be detrimental to the impartial conduct of the business of Allegany County and that the gift is purely personal and private in nature;

(g)

Gifts from a person related to the official or employee by blood or marriage, or any other individual who is a member of the household of the official or employee; or

(h)

Honoraria for speaking to or participating in a meeting, provided that the offering of the honorarium is not related in any way to the official's or employee's official position.

Disclosure of confidential information. Other than in the discharge of official duties, an official or employee may not disclose or use confidential information, that the official or employee acquired by reason of the official's or employee's public position and that is not available to the public, for the economic benefit of the official or employee or that of another person.

Participation in procurement.

An individual or a person that employs an individual who assists an Allegany County agency in the drafting of specifications, an invitation for bids, or a request for proposals for a procurement may not submit a bid or proposal for that procurement or assist or represent another person, directly or indirectly, who is submitting a bid or proposal for the procurement.

The Commission may establish exemptions from the requirements of this section for providing descriptive literature, sole source procurements, and written comments solicited by the procuring agency.

§ 98-5 Financial disclosure by local elected officials and candidates.

Applicability; filing requirements.

This section applies to all local elected officials and candidates to be local elected officials.

Except as provided in Subsection B of this section, a local elected official or a candidate to be a local elected official shall file the financial disclosure statement required under this section:

On a form provided by the Commission;

Under oath or affirmation; and

With the Commission.

Deadlines for filing statements.

An incumbent local elected official shall file a financial disclosure statement annually no later than April 30 of each year for the preceding calendar year.

An individual who is appointed to fill a vacancy in an office for which a financial disclosure statement is required and who has not already filed a financial disclosure statement shall file a statement for the preceding calendar year within 30 days after appointment.

Individual leaving office.

An individual who, other than by reason of death, leaves an office for which a statement is required shall file a statement within 60 days after leaving the office.

The statement shall cover:

The calendar year immediately preceding the year in which the individual left office, unless a statement covering that year has already been filed by the individual; and

The portion of the current calendar year during which the individual held the office.

Candidates to be local elected officials.

Except for an official who has filed a financial disclosure statement under another provision of this section for the reporting period, a candidate to be an elected local official shall file under a financial disclosure statement each year beginning with the year in which the certificate of candidacy is filed through the year of the election.

A candidate to be an elected local official shall file a statement required under this section:

In the year the certificate of candidacy is filed, no later than the filing of the certificate of candidacy;

In the year of the election, on or before the earlier of April 30 or the last day for the withdrawal of candidacy; and

In all other years for which a statement is required, on or before April 30.

A candidate to be an elected official:

May file the statement required under Subsection B(2)(a) with the Allegany County Clerk or Board of Election Supervisors with the certificate of candidacy or with the Commission prior to filing the certificate of candidacy; and

Shall file the statements required under Subsection B(2)(b) and (c) with the Commission.

If a candidate fails to file a statement required by this section after written notice is provided by the Allegany County Clerk or Board of Election Supervisors at least 20 days before the last day for the withdrawal of candidacy, the candidate is deemed to have withdrawn the candidacy.

The Allegany County Clerk or Board of Election Supervisors may not accept any certificate of candidacy unless a statement has been filed in proper form.

(6)

Within 30 days of the receipt of a statement required under this section, the Allegany County Clerk or Board of Election Supervisors shall forward the statement to the Commission or the office designated by the Commission.

Public record.

The Commission or office designated by the Commission shall maintain all financial disclosure statements filed under this section.

Financial disclosure statements shall be made available during normal office hours for examination and copying by the public subject to reasonable fees and administrative procedures established by the Commission.

If an individual examines or copies a financial disclosure statement, the Commission or the office designated by the Commission shall record:

The name and home address of the individual reviewing or copying the statement; and

The name of the person whose financial disclosure statement was examined or copied.

Upon request by the official or employee whose financial disclosure statement was examined or copied, the Commission or the office designated by the Commission shall provide the official with a copy of the name and home address of the person who reviewed the official's financial disclosure statement.

Retention requirements. The Commission or the office designated by the Commission shall retain financial disclosure statements for four years from the date of receipt.

Contents of statement.

Interests in real property.

A statement filed under this section shall include a schedule of all interests in real property wherever located.

For each interest in real property, the schedule shall include:

The nature of the property and the location by street address, mailing address, or legal description of the property;

The nature and extent of the interest held, including any conditions and encumbrances on the interest;

The date when, the manner in which, and the identity of the person from whom the interest was acquired;

The nature and amount of the consideration given in exchange for the interest or, if acquired other than by purchase, the fair market value of the interest at the time acquired;

[5]

If any interest was transferred, in whole or in part, at any time during the reporting period, a description of the interest transferred, the nature and amount of the consideration received for the interest, and the identity of the person to whom the interest was transferred; and

[6]

The identity of any other person with an interest in the property.

Interests in corporations and partnerships.

A statement filed under this section shall include a schedule of all interests in any corporation, partnership, limited liability partnership, or limited liability corporation, regardless of whether the corporation or partnership does business with Allegany County.

For each interest reported under this subsection, the schedule shall include:

The name and address of the principal office of the corporation, partnership, limited liability partnership or limited liability corporation;

The nature and amount of the interest held, including any conditions and encumbrances on the interest;

With respect to any interest transferred, in whole or in part, at any time during the reporting period, a description of the interest transferred, the nature and amount of the consideration received for the interest, and, if known, the identity of the person to whom the interest was transferred; and

With respect to any interest acquired during the reporting period:

The date when, the manner in which, and the identity of the person from whom the interest was acquired; and

The nature and the amount of the consideration given in exchange; for the interest or, if acquired other than by purchase, the fair market value of the interest at the time acquired.

[5]

An individual may satisfy the requirement to report the amount of the interest held under Subsection E(2)(b)[2] of this section by reporting, instead of a dollar amount:

For an equity interest in a corporation, the number of shares held and, unless the corporation's stock is publicly traded, the percentage of equity interest held; or

For an equity interest in a partnership, the percentage of equity interest held.

Interests in business entities doing business with Allegany County.

A statement filed under this section shall include a schedule of all interests in any business entity that does business with Allegany County, other than interests reported under Subsection E(2) of this section.

For each interest reported under this subsection, the schedule shall include:

The name and address of the principal office of the business entity;

The nature and amount of the interest held, including any conditions to and encumbrances in the interest;

With respect to any interest transferred, in whole or in part, at any time during the reporting period, a description of the interest transferred, the nature and amount of the consideration received in exchange for the interest, and, if known, the identity of the person to whom the interest was transferred; and

With respect to any interest acquired during the reporting period:

The date when, the manner in which, and the identity of the person from whom the interest was acquired; and

The nature and the amount of the consideration given in exchange for the interest or, if acquired other than by purchase, the fair market value of the interest at the time acquired.

Gifts.

A statement filed under this section shall include a schedule of each gift in excess of $20 in value or a series of gifts totaling $100 or more received during the reporting period from or on behalf of, directly or indirectly, any one person who does business with or is regulated by Allegany County.

For each gift reported, the schedule shall include:

A description of the nature and value of the gift; and

The identity of the person from whom, or on behalf of whom, directly or indirectly, the gift was received.

Employment with or interests in entities doing business with Allegany County.

A statement filed under this section shall include a schedule of all offices, directorships, and salaried employment by the individual or member of the immediate family of the individual held at any time during the reporting period with entities doing business with Allegany County.

For each position reported under this section, the schedule shall include:

The name and address of the principal office of the business entity;

The title and nature of the office, directorship, or salaried employment held and the date it commenced; and

The name of each Allegany County agency with which the entity is involved.

(6)

Indebtedness to entities doing business with Allegany County

A statement filed under this section shall include a schedule of all liabilities, excluding retail credit accounts, to persons doing business with Allegany County owed at any time during the reporting period:

By the individual; or

By a member of the immediate family of the individual if the individual was involved in the transaction giving rise to the liability.

For each liability reported under this subsection, the schedule shall include:

The identity of the person to whom the liability was owed and the date the liability was incurred;

The amount of the liability owed as of the end of the reporting period;

The terms of payment of the liability and the extent to which the principal amount of the liability was increased or reduced during the year; and

The security given, if any, for the liability.

(7)

A statement filed under this section shall include a schedule of the immediate family members of the individual employed by Allegany County in any capacity at any time during the reporting period.

(8)

Sources of earned income.

A statement filed under this section shall include a schedule of the name and address of each place of employment and of each business entity of which the individual or a member of the individual's immediate family was a sole or partial owner and from which the individual or member of the individual's immediate family received earned income, at any time during the reporting period.

A minor child's employment or business ownership need not be disclosed if the agency that employs the individual does not regulate, exercise authority over, or contract with the place of employment or business entity of the minor child.

(9)

A statement filed under this section may also include a schedule of additional interests or information that the individual making the statement wishes to disclose.

For the purposes of § 98-5E(1), (2) and (3) of this chapter, the following interests are considered to be the interests of the individual making the statement:

An interest held by a member of the individual's immediate family, if the interest was, at any time during the reporting period, directly or indirectly controlled by the individual.

An interest held by a business entity in which the individual held an interest of 30% or greater at any time during the reporting period.

An interest held by a trust or an estate in which, at any time during the reporting period:

The individual held a reversionary interest or was a beneficiary; or

If a revocable trust, the individual was a settlor.

Compliance.

The Commission shall review the financial disclosure statements submitted under this section for compliance with the provisions of this section and shall notify an individual submitting the statement of any omissions or deficiencies.

The Allegany County Ethics Commission may take appropriate enforcement action to ensure compliance with this section.

§ 98-6 Financial disclosure by employees and appointed officials.

This section applies to all appointed officials and employees not otherwise exempted herein.

A statement filed under this section shall be filed with the Commission under oath or affirmation.

On or before April 30 of each year during which an official or employee holds office, an official or employee shall file a statement disclosing each gift in excess of $20 in value, or a series of gifts totaling $100 from the same person or entity, received during the preceding calendar year from any person or entity that contracts with or is regulated by Allegany County, including the name of the donor of the gift and the approximate retail value at the time of receipt.

An official or employee shall disclose employment and interests that raise conflicts of interest or potential conflicts of interest in connection with a specific proposed action by the employee or official sufficiently in advance of the action to provide adequate disclosure to the public.

The Commission shall maintain all disclosure statements filed under this section as public records available for public inspection and copying as provided in § 98-5C and D of this chapter.

§ 98-7 Lobbying.

A person shall file a lobbying registration statement with the Commission if the person:

Personally appears before an Allegany County official or employee with the intent to influence that person in performance of the official duties of the official or employee; and

In connection with the intent to influence, expends or reasonably expects to expend in a given calendar year in excess of $100 on food, entertainment or other gifts for officials or employees of Allegany County.

[Amended 9-5-2013 by Bill No. 5-13, effective 10-20-2013]

A person shall file a registration statement required under this section on or before the later of January 15 of the calendar year or within five days after first performing an act that requires registration in the calendar year.

Registration statement.

The registration statement shall identify:

The registrant;

Any other person on whose behalf the registrant acts; and

The subject matter on which the registrant proposes to make appearances specified in Subsection A of this section.

The registration statement shall cover a defined registration period not to exceed one calendar year.

Within 30 days after the end of any calendar year during which a person was registered under this section, the person shall file a report with the Commission disclosing:

The value, date and nature of any food, entertainment or other gift provided to an Allegany County official or employee; and

If a gift or series of gifts to a single official or employee exceeds $200 in value, the identity of the official or employee.

The Commission shall maintain the registrations and reports filed under this section as public records available for public inspection and copying for four years after receipt by the Commission.

§ 98-8 Exemptions and modifications.

The Commission may grant exemptions and modifications to the provisions of §§ 98-4 and 98-6 of this chapter to employees and to appointed members of Allegany County boards and commissions, when the Commission finds that an exemption or modification would not be contrary to the purposes of this chapter, and the application of this chapter would:

Constitute an unreasonable invasion of privacy; and

Significantly reduce the availability of qualified persons for public service.

§ 98-9 Enforcement.

The Commission may:

Assess a late fee of $2 per day up to a maximum of $250 for a failure to timely file a financial disclosure statement required under § 98-5 or 98-6 of this chapter;

Assess a late fee of $10 per day up to a maximum of $250 for a failure to file a timely lobbyist registration or lobbyist report required under § 98-7 of this chapter; and

Issue a cease and desist order against any person found to be in violation of this chapter.

Additional action by Commission:

Upon a finding of a violation of any provision of this chapter, the Commission may:

Issue an order of compliance directing the respondent to cease and desist from the violation;

Issue a reprimand; or

Recommend to the appropriate authority other appropriate discipline of the respondent, including censure or removal if that discipline is authorized by law.

If the Commission finds that a respondent has violated § 98-7 of this chapter, the Commission may:

Require a respondent who is a registered lobbyist to file any additional reports or information that reasonably related to the information that is required under § 98-7 of this chapter;

Impose a fine not exceeding $5,000 for each violation; and

Suspend the registration of an individual registered lobbyist if the Commission finds that the lobbyist has knowingly and willfully violated § 98-7 of this chapter or has been convicted of a criminal offense arising from lobbying activities.

Filings with court.

Upon request by the Commission, the Allegany County Attorney may file a petition for injunctive or other relief in the Circuit Court of Allegany County, or in any other court having proper venue for the purpose of requiring compliance with the provisions of this chapter.

Actions by court.

The court may:

Issue an order to cease and desist from the violation;

Except as provided in Subsection C(2)(b) of this section, void an official action taken by an official or employee with a conflict of interest prohibited by this chapter when the action arises from or concerns the subject matter of the conflict and if the legal action is brought within 90 days of the occurrence of the official action, if the court deems voiding the action to be in the best interest of the public; or

Impose a fine of up to $5,000 for any violation of the provisions of this chapter, with each day upon the violation occurs constituting a separate offense.

A court may not void any official action appropriating public funds, levying taxes or providing for the issuance of bonds, notes or other evidences of public obligations.

In addition to any other enforcement provisions in this chapter, a person who the Commission or a court finds has violated this chapter:

Is subject to termination or other disciplinary action; and

May be suspended from receiving payment of salary or other compensation pending full compliance with the terms of an order of the Commission or a court.

An Allegany County official or employee found to have violated this chapter is subject to disciplinary or other appropriate personnel action, including removal from office, disciplinary action, suspension of salary, or other sanction.

Violation of § 98-7 of this chapter shall be a misdemeanor subject to a fine of up to $10,000 or imprisonment of up to one year.

A finding of a violation of this chapter by the Commission is public information.

§ 98-10 Complaint procedures.

Filing of formal complaints. Any citizen, business or agency may file complaints of questionable conduct or misconduct with the Ethics Commission. Such complaint must:

Be against an official or employee under the jurisdiction of the Ethics Commission; and

Be related to job performance either by:

Actual activities or decisions that present a conflict of interest; or

Conduct or relationships that give(s) the appearance of conflict of interest; or

Conduct that may present a conflict of interest or give the appearance of conflict of interest in the future.

Be filed with the Ethics Commission in writing, in a form approved by the Commission. The written complaint of violation must contain the name(s) of suspected violators, set forth sufficient pertinent facts to substantiate the alleged infraction, and be signed under oath by the complainant.

Commission-issued complaints. The Commission may, on its own volition, issue a complaint for alleged violations of this chapter.

Processing complaints.

Recording complaints. Once the Commission receives a complaint it will be recorded in an appropriate confidential log, under a unique file number. This log will be kept with confidential files and will not be subject to public view.

Investigating complaints.

Preliminary inquiry. The Commission may conduct a preliminary inquiry. A preliminary inquiry is the process by which a matter may be presented to the Commission for preliminary review to determine whether the matter should be processed as a complaint. It includes an investigation and review of the matter by the Office of the County Attorney, or other individual designated by the Commission, and any consideration of the matter by the Commission. If the matter does not qualify for further action, the disposition will be entered in the confidential log and all papers pertaining to the complaint will be filed in a confidential file under the unique file number assigned. All information shall be subject to the confidentiality provision of § 98-11.

Formal investigations.

Complaints which are determined to have merit enough for further action, will be referred to the Office of the County Attorney for further investigation. If the complaint involves the County Attorney, one of his staff, or a person or persons closely related to the County Attorney, or in any way may present the appearance of conflict of interest by one of these individuals, it may be referred to an independent party or parties selected by the Commission for investigation. The County Commissioners will pay the cost of the investigation.

The Office of the County Attorney or other investigating authority will present results of investigations of complaints to the Ethics Commission in writing. This report may contain provisions for a resolution to minor infractions, which have been agreed to by the respondent. The Commission may accept this resolution and no hearing need be scheduled. That disposition will be entered in the confidential log.

If the Commission determines that there is sufficient evidence that a violation of the ethics laws has occurred or is occurring, and a resolution is not appropriate, a hearing will be scheduled. The respondent will be notified at least 30 days prior to the hearing date.

Oaths and subpoenas. The Commission shall have the following powers to the extent permitted by law:

On its own or through its designee, the Commission may administer oaths and affirmations; and on the Commission's own motion, issue subpoenas to compel attendance and testimony of witnesses or for the production of books, papers, records, documents or other tangible objects.

Subpoenas issued on behalf of the Commission are judicially enforceable.

Respondents may use the Commission's subpoena power in preparation for any hearing to be held in accordance with this chapter.

Respondent subpoenas shall be issued in response to a written request by or on behalf of the respondent received by the Commission not later than 10 working days before the date set for a hearing.

Service and enforcement of any respondent subpoena issued pursuant to this regulation is the responsibility of the respondent or other person acting on the respondent's behalf.

Hearings.

The Ethics Commission shall conduct hearings. A member may recuse himself or herself if a personal interest may present an appearance of conflict. Hearings are not open to the public.

The respondent may be represented by counsel of their choosing and may present evidence and witnesses on their own behalf.

All hearings are administrative hearings and therefore not subject to the strict rules of evidence required under criminal procedures. Latitude is available to the Commission in order to determine the true circumstances of the case and arrive at an appropriate conclusion.

Evidence and investigation results will be presented to the Commission by the County Attorney or, if necessary, by someone appointed by the Commission.

If the hearing results in a finding of no violation of ethics laws, that finding will be recorded as the final disposition. All documents will be kept confidential pursuant to § 98-11.

(6)

A written report will be prepared of all hearings wherein it is determined that a violation of the ethics laws has been or is being committed. That report will contain the alleged violation, the elements of the violations, the findings of fact by the Commission, action taken by the Commission, and the signature of a Commission member present at the hearing.

Criminal activity.

If the Ethics Commission, while considering a complaint, finds that there are reasonable grounds to believe that the respondent may have committed a criminal offense, the Ethics Commission promptly shall refer the matter to an appropriate prosecuting authority.

The Ethics Commission shall make available to the prosecuting authority all pertinent evidence under its control.

§ 98-11 Confidentiality.

General rules.

During the pendency of any preliminary inquiry by Commission staff pursuant to this chapter, or following the filing of a complaint, the proceedings, meetings and activities of the Commission and its employees in connection with the complaint shall be conducted in a confidential manner.

The Commission, its staff, the complainant and the respondent may not disclose any information relating to the complaint, including the identity of the complainant and the respondent.

Exceptions.

The Commission may release information at any time if the respondent has agreed in writing to the release.

The identity of the complainant shall be disclosed to the respondent at any time in response to a written request from the respondent.

Information may be disclosed by the Commission or the Commission's staff as necessary to conduct a preliminary inquiry, investigation or hearing, or to issue subpoenas.

Confidentiality does not apply to referral or release of information to a prosecuting authority. The respondent may waive confidentiality, and information disclosed accordingly as part of a cure, settlement, or other pre-hearing resolution of an enforcement proceeding pursuant to this chapter.

Information provided to a complainant.

A complainant shall be provided information regarding the status of an enforcement matter as set forth by this chapter.

The Office of the County Attorney shall notify the complainant that evidence is being referred to the Commission for preliminary disposition, at least 15 days before referring the evidence to the Commission.

The complainant shall be provided with a copy of a signed order of the Commission dismissing a complaint if after:

Preliminary consideration of the evidence, it is determined that the evidence does not merit further proceedings and that dismissal is not contrary to the provisions of this chapter; or

After consideration of the evidence at a hearing, it is determined that the respondent has not violated this chapter.

Confidentiality after hearing.

The confidentiality requirements apply to written reports setting forth findings of fact and conclusions of law required after a hearing as required by this chapter.

When there is a finding that there was no violation of this chapter, there may not be disclosure of information.

When there is a finding of violation as to any allegation in the complaint, the written report, including findings and conclusions of any nonviolations, shall be a public record.

§ 98-12 Advisory opinions.

In addition to the powers otherwise contained herein, the Commission shall have the power to issue advisory opinions as provided for herein.

Application.

The advisory opinions provision of this chapter apply to all officials and employees of County government.

These procedures also apply to:

Candidates for office as elected County officials; and

Persons subject to the lobbying disclosure provisions of this chapter.

Advisory opinion procedures may also be applied, when appropriate, at the Commission's discretion, to provide advice or interpretation regarding exemption requests or other aspects of this chapter.

Who may request.

Any official, employee or other person identified as being subject to this chapter may request an advisory opinion concerning application to him or her of the provisions of this chapter. The Commission shall accept and process these advisory opinions requested in accordance with the procedures set forth in this chapter.

Advisory opinions may be requested by an official or employee of the County as to matters covered by this chapter concerning another official or employee under his supervision. These requests shall be accepted and processed by the Commission in accordance with this chapter.

Any other person may request an advisory opinion as to subject matters or individuals subject to this chapter and the Commission's jurisdiction as set forth in this chapter. These requests may be considered by the Commission in its discretion as deemed appropriate.

Relationship to investigatory process. It shall be the general practice of the Commission to consider advisory opinion requests dealing with nonspeculative fact situations and to render opinions having prospective application. If an opinion request requires consideration of past behavior or events, the Commission may consider the request in the context of a preliminary inquiry.

Form. All requests for advisory opinions shall be submitted in writing addressed to the Allegany County Ethics Commission, 701 Kelly Road, Suite 401, Cumberland, MD 21502. This request shall include the signature, address and telephone number of the requester and shall set forth the facts and circumstances giving rise to the request.

Review procedures.

Each advisory opinion request accepted for processing pursuant to this chapter shall be acknowledged by the Commission staff. The acknowledgment shall set forth the right of the subject to protection of his identity, and also the right of any person to be represented by counsel in connection with any aspect of the advisory opinion review process. When the request is from a person other than the official or employee whose conduct is the subject of the request, the person who is the subject of the request shall, if his identity is ascertainable, be provided with a copy of the request, and the acknowledgment letter.

Informal advice.

When an advisory opinion request presents facts and raises issues that have been addressed in a previously issued opinion of the Commission, the Commission staff may transmit the prior opinion as an expedited informal response to the opinion request.

If the person who receives an informal response pursuant to this subsection believes that facts or law peculiar to the request are contrary to the existing opinion, then further formal review by the Commission may be requested.

When formal review is requested pursuant to Subsection E(2)(b) of this section, the Commission may, based on the available information:

Schedule the request for review as set forth in Subsections E(3) through (5) and F of this section; or

Concur in the staff advice.

If the staff advice provided pursuant to Subsection E(2)(a) is affirmed, then it, with the prior opinion, shall be the final opinion of the Commission.

(e)

The Commission may also provide informal advice when there is no prior staff advice when, based on the facts of the particular situation, formal advice is not required.

(f)

When an informal determination is made, the procedures set forth in Subsections E(3) through (5) and F of this section do not apply.

(g)

Materials and documents relating to informal opinions shall be treated as advisory opinion materials for the purposes of the information provisions set forth in the Code of Maryland Regulations, Title 19A.

The Commission or its staff shall review the information set forth in the request and obtain other reasonably obtainable facts which allow the Commission to evaluate the conduct or activity in relation to the substantive provisions of the Public Ethics Law.

Advisory opinion requests shall be considered by the Commission at a meeting conducted in accordance with this chapter. The person whose conduct is the subject of the request shall appear at the Commission meeting considering the request unless his/her attendance is determined not to be necessary to the resolution of the issue, and may be represented by legal counsel in connection with the appearance. The Commission may also request the attendance of the requestor or of any other person who can provide information relevant to its determination.

Any person directly involved in the advisory opinion request may be represented by counsel at any and all stages of the proceeding.

Issuance of opinion.

Advice in response to an opinion request shall be provided within 60 days of receipt of the request (or more promptly if circumstances require it). Each opinion shall be committed to writing and be dated, and shall contain the names of all members of the Commission present at the meeting at which the opinion request was decided and who subscribed to the opinion. The name of any dissenter to an opinion shall be separately noted. Each advisory opinion shall be written, to the extent possible, so as to prevent disclosure of the identity of the subject of the opinion.

Advisory opinions shall be filed with the Clerk to the County Commissioners and with the Office of the County Attorney, and mailed to the requestor, the subject, and to other related persons, as determined in the discretion of the Commission.