[HISTORY: Adopted by the Mayor and Town Council of the Town
of Oakland 6-3-2013 by Ord. No. O2013-03;[1] amended in its entirety 10-1-2018 by Ord. No. O2018-06. Subsequent amendments noted where applicable.]
[1]
Editor's Note: This ordinance also superseded former
Ch. 27, Ethics, adopted 6-6-1988, as amended.
This chapter may be cited as the "Ethics Code of the Town of
Oakland."
A.
Provisions of this chapter shall apply to all employees and officials,
whether elected or appointed, of the Town of Oakland, a municipal
corporation, of the State of Maryland.
B.
DESIGNATED SECOND HOME
HOME ADDRESS
PRINICPAL HOME
SECOND HOME
As used in this chapter, the following terms shall have the meanings
indicated:
The address of an individual's:
The sole residential property that an individual occupies
as the individual's primary residence, whether owned or rented
by the individual.
A residential property that:
A.
Established. The Town of Oakland does hereby establish an Oakland
Ethics Commission.
B.
Composition; appointment of members. The Commission shall consist
of three members, to be appointed by the Mayor and confirmed by the
Town Council.
C.
Qualifications of members. A person is eligible to serve as a member
of the Commission if he is at least 21 years of age, a resident of
the Town of Oakland, and is not an employee or official, whether elected
or appointed, of the Town of Oakland, or any of its agencies.
D.
Removal of a member. The Mayor and Town Council may, by unanimous
vote of a majority of its members, remove a member of the Commission
on grounds of neglect of duty, misconduct in office, a disability
rendering him unable to discharge the power and duties of his office,
or a violation of this section. For such removal, the Mayor shall
give the member written notice of the reason for the intended action,
and the member shall have an opportunity to reply.
E.
Chairman. The Commission shall elect a Chairman from among its membership
who shall have a term of one year and shall be eligible for reelection.
F.
Meetings. The Commission shall meet at the call of the Chairman or
a majority of its members. A quorum consists of two members or more.
An affirmative vote of at least two members shall be necessary for
any action of the Commission. Should one or more members of the Commission
be unable to attend the meeting, the Chairman may designate the appointed
alternate to fill his place.
G.
Staff. The Commission shall be advised by the Oakland Town Attorney
and shall have access to the Town Clerk or other professional staff
of the Town of Oakland for clerical and/or secretarial help.
H.
Term. Terms of the three members of the Commission shall be three
years. Members of the Commission shall be eligible for reappointment.
A.
The Oakland Ethics Commission shall have the following powers and
duties:
(1)
To devise, receive, and maintain all forms required by this chapter.
(2)
To issue an advisory opinion concerning the application of this section
upon a written request of a person subject to its provisions, or the
Mayor or any member of the Town Council. An advisory opinion concerning
the application of this section may be issued by the Commission upon
the written request of any other person as deemed appropriate.
(3)
Time of issuance. Advisory opinions required by Subsection A(1) shall be issued by the Commission within 60 days after receipt of the request or more promptly if circumstances require it.
(4)
To develop procedures and policies for the processing of complaints
to make appropriate determinations regarding complaints filed by any
person alleging violations of this chapter.
(5)
To engage in such educational effort as it sees fit; to make available
to persons subject to this chapter and to the general public explanatory
information concerning the provisions of this chapter, and the duties
imposed upon it and its means of enforcement. To administer oaths
and affirmations, issue subpoenas to compel the attendance and testimony
of witnesses for production of books, papers, records, documents or
other tangible objects. These subpoenas may be judicially enforced.
(6)
To make determinations with respect to any complaint filed with it by any person subject to this chapter, or any resident or taxpayer of the Town of Oakland concerning violations of this chapter, but only in accordance with § 27-5 hereof.
(7)
To certify to the State Ethics Commission on or before October 1
of each year that the Town is in compliance with the requirements
of State Government Article, Title 15, Subtitle 8, Annotated Code
of Maryland,[1] for elected local officials.
[1]
Editor's Note: State Government Article, Title 15, Subtitle
8, Annotated Code of Maryland was repealed by Acts 2014, c. 94, § 1,
effective 10-1-2014.
(8)
To determine if changes to this chapter are required to be in compliance
with the requirements of State Government Article, Title 15, Subtitle
8, Annotated Code of Maryland and to forward any recommended changes
and amendments to the Town Council for enactment.
(9)
To adopt other policies and procedures to assist in the implementation
of the Commission's programs established in this chapter.
(10)
To enforce the provisions of this section.
B.
The Commission may exempt from the provisions of this chapter, or
may modify the requirements hereof, as it pertains to employees and
to any appointed Town board or commission or any member thereof, if,
due to the nature of the board or commission or for compelling reasons
of any member thereof, it finds that the application of this chapter
to that board, commission, or member thereof:
C.
Any exemption authorized by Subsection B(2) of this section may be granted by the Commission only upon the written request of the board or commission involved, or any member thereof.
D.
All official findings of the Commission, and all written advisory
opinions, shall be public.
A.
Any persons subject to the provisions of this chapter, or any resident
of the Town of Oakland or any taxpayer thereof, may file, under oath,
a written and signed complaint with the Commission alleging a violation
of any of the provisions of this chapter, and the Commission may,
upon its own motion, issue a complaint alleging a violation of this
chapter. The Commission shall promptly provide the respondent with
a copy of the complaint.
B.
The Commission may refer any such complaint to its counsel for investigation
or for disposition thereof as a matter of law.
C.
If the Commission, with the advice of its counsel, determines that
the evidence does not merit further proceedings, the complaint shall
be dismissed by the Commission in a signed order. An order of dismissal
shall be sent to the complainant and the respondent forthwith.
D.
If, within 15 days of notification of the complaint, the respondent
takes any action which may be available to cure all alleged violations,
the complaint shall be dismissed by a signed order if the Commission
finds such action appropriate and not contrary to the purposes of
this section.
F.
At the hearing, the Commission's counsel shall present to the
Commission all evidence available to him relating to the complaint.
Counsel may recommend to the Commission such disposition of the complaint
as appears appropriate to him. The respondent may be represented by
counsel, and the proceedings shall be conducted in accordance with
the provisions of the State Administrative Procedure Act,[1] to the extent that the act is consistent with this chapter.
[1]
Editor's Note: See State Government Article, Annotated
Code of Maryland, § 10-101 et seq.
G.
At any time after the complaint is filed, the respondent shall have
access to all evidence within the Commission files, excluding the
work product of the Commission's counsel, and shall have the
right to inspect and copy any and all such evidence.
H.
After consideration of all the evidence, the Commission shall make
a final finding of fact and conclusion of law with respect to each
of the alleged violations.
I.
If the Commission concludes that the respondent has not violated
any of the provisions of this chapter, the Commission shall enter
an order dismissing the complaint and shall advise the complainant
and the respondent.
J.
If the Commission decides that the respondent has violated any of
the provisions of this chapter, the Commission may issue an order
of compliance to cease and desist the violation, may issue a reprimand,
or may recommend to the appropriate authority, if provided for by
law, for the censure, removal, or the appropriate discipline of the
respondent.
K.
If aggrieved by any final order of the Commission, the respondent
may request judicial review by filing the appropriate action under
the administrative appeal provisions of state law within 30 days of
the date of the written trial order.
L.
The final order of the Commission shall be stayed automatically until the time for seeking judicial review has expired. If a timely appeal for judicial review is filed, the final order shall be further stayed until the final disposition of the matter by the court. The Commission may seek judicial relief as provided for in § 27-9 of this chapter.
M.
If the Commission, in the course of considering a complaint, finds
that there are reasonable grounds to believe that the respondent may
have committed a criminal offense, the matter shall be referred promptly
to the Office of the State's Attorney for Garrett County. The
Commission shall make available to the Office of the State's
Attorney for Garrett County all pertinent evidence under its control.
Notwithstanding any other provisions of law to the contrary, the filing
of a complaint, and, unless and until the matter is referred for prosecution
or a finding of a violation has been made, the proceedings, meetings,
and activities of the Commission and its members and employees in
connection with the complaint shall be conducted in a confidential
manner. The Commission, its staff, the complainant, and the respondent
shall not disclose any information relating to the complaint, including
the identity of the complainant and the identity of the respondent,
except that the Commission may release any information at any time
if the release has been agreed to, in writing, by the respondent,
and the identity of the complainant shall be disclosed to the respondent
at any time, at the request of the respondent.
A.
In this section, "qualified relative" means a spouse, parent, child,
or sibling.
B.
All Town elected officials, officials appointed to Town boards and
commissions subject to this chapter and employees are subject this
section.
C.
Participation prohibitions. Except as permitted by Commission regulation
or opinion, an official or employee may not participate in:
(1)
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, to the knowledge of the official or employee,
the official or employee, or a qualified relative of the official
or an employee, has an interest.
(2)
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)
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;
(b)
A business entity for which the official or employee or a qualified
relative of the official or employee is an officer, director, trustee,
partner, or employee;
(c)
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;
(d)
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 the Town, 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:
[1]
The official or 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
[2]
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.
D.
Employment and financial interest restrictions.
(1)
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:
(2)
This prohibition does not apply to:
(a)
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;
(b)
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;
(c)
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
(d)
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.
E.
Post-employment restrictions.
(1)
A former official or employee may not assist or represent any party
other than the Town for compensation in a case, contract, or other
specific matter involving the Town if that matter is one in which
the former official or employee significantly participated as an official
or employee.
(2)
A former member of the Town Council may not assist or represent another
party for compensation in a matter that is the subject of legislative
action for one calendar year after the elected official leaves office.
F.
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 the Town.
G.
Use of prestige of office.
(1)
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.
(2)
This subsection does not prohibit the performance of usual and customary
constituent services by an elected official without additional compensation.
H.
Solicitation and acceptance of gifts.
(1)
An official or employee may not solicit any gift.
(2)
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.
(3)
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:
(a)
Is doing business with or seeking to do business with the Town
office, agency, board, or commission with which the official or employee
is affiliated;
(b)
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;
(c)
Is engaged in an activity regulated or controlled by the official's
or employee's governmental unit; or
(d)
Is a lobbyist with respect to matters within the jurisdiction
of the official or employee.
(4)
Subsection H(5) does not apply to a gift:
(a)
That would tend to impair the impartiality and the independence
of judgment of the official or employee receiving the gift;
(b)
Of significant value that would give the appearance of impairing
the impartiality and independence of judgment of the official or employee;
or
(c)
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.
(5)
Notwithstanding Subsection H(3), an official or employee may accept the following:
(a)
Meals and beverages consumed in the presence of the donor or
sponsoring entity;
(b)
Ceremonial gifts or awards that have insignificant monetary
value;
(c)
Unsolicited gifts of nominal value that do not exceed $20 in
cost or trivial items of informational value;
(d)
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 the Town 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.
I.
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.
J.
Participation in procurement.
(1)
An individual or a person that employs an individual who assists
a Town agency in the drafting of specifications, an invitation for
bids, or a request for proposals for a prorcurement 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.
(2)
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.
A.
Applicability; local elected officials.
(1)
This section applies to all local elected officials and candidates
to be local elected officials.
(3)
Deadlines for filing statements.
(a)
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.
(b)
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.
(c)
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.
B.
Candidates to be local elected officials.
(1)
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 a financial
disclosure statement each year beginning with the year in which the
certificate of candidacy is filed through the year of the election.
(2)
A candidate to be an elected local official shall file a statement
required under this section:
(a)
In the year the certificate of candidacy is filed, no later
than the filing of the certificate of candidacy;
(b)
In the year of the election, on or before the earlier of April
30 or the last day for the withdrawal of candidacy; and
(c)
In all other years for which a statement is required, on or
before April 30.
(3)
A candidate to be an elected official:
(a)
May file the statement required under § 27-7B(2)(a) of this chapter with the Town Clerk or Board of Election Supervisors with the certificate of candidacy or with the Commission prior to filing the certificate of candidacy; and
(b)
Shall file the statements required under § 27-7B(2)(b) and (c) with the Commission.
(4)
If a candidate fails to file a statement required by this section
after written notice is provided by the Town 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.
(5)
The Town 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 Town Clerk or Board of Election Supervisors shall forward
the statement to the Commission or the office designated by the Commission.
C.
Public record.
(1)
The Commission or office designated by the Commission shall maintain
all financial disclosure statements filed under this section.
(2)
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.
(3)
If an individual examines or copies a financial disclosure statement,
the Commission or the office designated by the Commission shall record:
(4)
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.
(5)
For statements filed after January 1, 2019, the Commission or the
office designated by the Commission may not provide public access
to an individual's home address that the individual has designated
as the individual's home address.
D.
Retention requirements. The Commission or the office designated by
the Commission shall retain financial disclosure statements for four
years from the date of receipt.
E.
Contents of statement.
(1)
Interests in real property.
(a)
A statement filed under this section shall include a schedule
of all interests in real property wherever located.
(b)
For each interest in real property, the schedule shall include:
[1]
The nature of the property and the location by street address,
mailing address, or legal description of the property;
[2]
The nature and extent of the interest held, including any conditions
and encumbrances on the interest;
[3]
The date when, the manner in which, and the identity of the
person from whom the interest was acquired;
[4]
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.
(2)
Interests in corporations and partnerships.
(a)
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 the Town.
(b)
For each interest reported under this subsection, the schedule
shall include:
[1]
The name and address of the principal office of the corporation,
partnership, limited-liability partnership, or limited-liability corporation;
[2]
The nature and amount of the interest held, including any conditions
and encumbrances on the interest;
[3]
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
[4]
With respect to any interest acquired during the reporting period:
(c)
An individual may satisfy the requirement to report the amount of the interest held under Subsection E(2)(b)[2] by reporting, instead of a dollar amount:
(3)
Interests in business entities doing business with the Town.
(a)
A statement filed under this section shall include a schedule of all interests in any business entity that does business with the Town, other than interests reported under Subsection E(2).
(b)
For each interest reported under this subsection, the schedule
shall include:
[1]
The name and address of the principal office of the business
entity;
[2]
The nature and amount of the interest held, including any conditions
to and encumbrances on the interest;
[3]
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
[4]
With respect to any interest acquired during the reporting period:
(4)
Gifts.
(a)
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 the Town.
(5)
Employment with or interests in entities doing business with the
Town.
(a)
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 the
Town.
(b)
For each position reported under this subsection, the schedule
shall include:
(6)
Indebtedness to entities doing business with Town.
(a)
A statement filed under this section shall include a schedule
of all liabilities, excluding retail credit accounts, to persons doing
business with the Town owed at any time during the reporting period:
(b)
For each liability reported under this subsection, the schedule
shall include:
[1]
The identity of the person to whom the liability was owed and
the date the liability was incurred;
[2]
The amount of the liability owed as of the end of the reporting
period;
[3]
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
[4]
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 the Town
in any capacity at any time during the reporting period.
(8)
Sources of earned income.
(a)
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.
(b)
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.
F.
For the purposes of § 27-7E(1), (2), and (3) of this chapter, the following interests are considered to be the interests of the individual making the statement:
(1)
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.
(2)
An interest held by a business entity in which the individual held
a 30% or greater interest at any time during the reporting period.
G.
Compliance.
(1)
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.
(2)
The Town Ethics Commission may take appropriate enforcement action
to ensure compliance with this section.
B.
A statement filed under this section shall be filed with the Commission
under oath or affirmation.
C.
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
gifts received during the preceding calendar year from any person
that contracts with or is regulated by the Town, including the name
of the donor of the gift and the approximate retail value at the time
or receipt.
D.
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.
B.
Upon a finding of a violation of any provision of this chapter, the
Commission may:
C.
Upon request of by the Commission, the Town Attorney may file a petition
for injunctive or other relief in the circuit court of Garrett County,
or in any other court having proper venue for the purpose of requiring
compliance with the provisions of this chapter.
(1)
The court may:
(a)
Issue an order to cease and desist from the violation;
(b)
Except as provided in Subsection C(2), 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
(c)
Impose a fine of up to $5,000 for any violation of the provisions
of this chapter, with each day upon which the violation occurs constituting
a separate offense.
(2)
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.
D.
In addition to any other enforcement provisions in this chapter,
a person who the Commission or a court finds has violated this chapter:
E.
A Town 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.
F.
A finding of a violation of this chapter by the Commission is public
information.
