City of College Park, MD Article II Ethics Commission

§ 38-5 Establishment.

A. There shall be a City Ethics Commission, composed of seven members appointed by the Mayor and approved by the Council. Of the seven members, one shall be appointed from each of the City's four election districts and three from the City at large.

B. Member terms are governed by Chapter 15, Boards, Commissions and Committees, § 15-2, Terms and appointments. Members of the commission may only be removed for cause during any term.

[Amended 3-10-2020 by Ord. No. 20-O-03]

C. Commission members shall elect one member as Chair, to serve in such capacity for a renewable one-year term.

D. An independent attorney shall serve as Ethics Counsel to the Commission. The Ethics Counsel shall assist the Commission in fulfilling its duties and exercising its powers enumerated in § 38-6. The Ethics Counsel shall serve as a special prosecutor consistent with the procedures specified in § 38-8.

E. Consistent with the provisions of state and City laws and ordinances, the Commission shall operate under Roberts' Rules of Order, and its members shall take an oath of office comparable to that taken by elected City officials.

§ 38-6 Duties and powers.

The Ethics Commission shall have the duty and the power to:

A. Render advisory opinions. Pursuant to § 38-7, the Commission shall provide written advisory opinions as to the applicability of any of the provisions of this chapter or Chapter 34, §§ 34-9 and 34-11 through 34-17 inclusive.

B. Investigate and adjudicate alleged violations. Consistent with the procedures set forth in § 38-8, the Commission shall investigate and make determinations as to any conduct that the Commission believes may be in violation of this chapter or Chapter 34, §§ 34-9 and 34-11 through 34-17 inclusive, whether upon complaint or on its own motion. The Commission has the power to levy penalties and other sanctions pursuant to the rules set forth in this chapter and Chapter 110. The Commission has the power of subpoena to require the attendance of persons and the production of evidence at final hearings.

C. Grant exemptions and modifications. Pursuant to § 38-10, the Commission may grant exemptions and modifications to the requirements of this chapter.

D. Devise, receive and maintain disclosure statements. The Commission shall devise, receive and maintain all forms and disclosure statements required under this chapter.

E. Conduct public education. The Commission shall conduct a public information program regarding the purposes and application of this chapter and Chapter 34.

F. Promulgate regulations. The Commission may, subject to approval by the Mayor and Council, promulgate written rules and regulations consistent with the provisions of this chapter.

G. Maintain proper records. The Commission shall maintain proper records in accordance with this chapter and the requirements of the Maryland Open Meetings Law.[1]

[1] Editor's Note: See the State General Provisions Article, § 3-101 et seq. of the Annotated Code of Maryland.

H. Certification to State Ethics Commission. The Commission shall certify to the State Ethics Commission on or before October 1 of each year that the City is in compliance with the requirements of the General Provisions Article, Title 5, Subtitle 8, Annotated Code Of Maryland.

[Added 8-9-2011 by Ord. No. 11-O-10; amended 8-10-2021 by Ord. No. 21-O-10]

I. The Commission shall determine if changes to this chapter are required to be in compliance with the requirements of the General Provisions Article, Title 5, Subtitle 8, Annotated Code of Maryland, and shall forward any recommended changes and amendments to the City Council for its consideration.

[Added 8-9-2011 by Ord. No. 11-O-10; amended 8-10-2021 by Ord. No. 21-O-10]

J. The Commission shall provide ethics training to the City’s elected officials, candidates for elected office, employees and board and commission appointees as necessary and appropriate.

[Added 8-9-2011 by Ord. No. 11-O-10]

§ 38-7 Advisory opinion.

A. Procedure. Any person subject to this chapter may request the Commission for an advisory opinion concerning the application of the provisions of this chapter or of Chapter 34, §§ 34-9 and 34-11 through 34-17 inclusive. Such request shall be in writing. The Commission shall respond to the request within 60 days, or as soon thereafter as is practical, provided that the Commission's interpretation of these provisions is based on the facts provided or reasonably available to it.

B. Issues. In an advisory opinion, the Commission shall limit its findings to matters of law. The Commission shall not make any findings of fact regarding the conduct or intent of any person in an advisory opinion.

C. Effect. Until amended or revoked, an advisory opinion shall be binding on the City, the City Council and the Ethics Commission in any subsequent actions concerning the person who sought the opinion and who acted on it in good faith, unless material facts were omitted or misstated in the request for the opinion. Such opinion shall not be binding in any court action initiated by any private citizen.

D. Confidentiality. Copies of the advisory opinion shall be submitted to the Mayor and the Council and made available to the public within five working days after the opinion has been rendered. However, the name of the person requesting the opinion and the names of all persons or business entities mentioned in the opinion shall be deemed confidential information and shall not be disclosed by the members of the Commission unless each person or business entity waives such confidentiality.

§ 38-8 Procedures for adjudicating alleged violations.

Investigation and adjudication of alleged violations of this chapter or of Chapter 34 shall proceed as follows:

A. Complaint.

(1) Who may file. Any person may file a complaint with the Commission alleging a violation of any of the provisions of this chapter or of Chapter 34. The Commission may consider possible violations of this chapter or Chapter 34 on its own initiative. Within five working days of the Commission's decision to consider a possible violation, or as soon thereafter as is practicable, the Commission shall draft a written complaint specifying the section(s) of this chapter or Chapter 34 alleged to have been violated and transmit a copy of such complaint, signed by the Chair, to its Ethics Counsel.

(2) Contents. The complaint must assert facts that if proven true would constitute a violation of the provisions of this chapter or of Chapter 34. It is not necessary that the complaint cite the chapter provisions allegedly violated, but such citation is advised. All complaints shall be in writing and signed under oath. Complaints initiated by the Commission shall be signed by the Chair.

(3) Ethics Counsel review. The Commission shall immediately transmit a copy of the complaint to its Ethics Counsel. The Ethics Counsel shall review the complaint and, at his or her discretion, may prepare an addendum to the complaint. The purposes of this addendum are to assure that the respondent has adequate notice of the specific Code provisions alleged to have been violated and to aid the Commission in limiting the scope of any preliminary hearing to relevant factual inquiries. Any addendum is to be submitted to the Commission within 10 working days of receipt of the complaint by the Ethics Counsel. If the Ethics Counsel determines that the complaint is time barred under Subsection A(4) of this section or does not assert facts that if proven true would constitute a violation of this chapter or Chapter 34, the Ethics Counsel may recommend that the Commission dismiss the complaint without notice to the respondent or a preliminary hearing. Upon receipt of the recommendation, the Commission may dismiss the complaint.

[Amended 9-9-2014 by Ord. No. 14-O-09]

(4) Limitation on actions. No complaint shall be processed if filed more than one year from the date of the action alleged to constitute a violation.

B. Notice to parties. Within 15 working days after the complaint is transmitted to its Ethics Counsel, the Commission shall provide the complainant with written acknowledgment of receipt of the complaint together with a copy of any Ethics Counsel addendum and shall provide the respondent with copies of the complaint and any Ethics Counsel addendum. Within 10 working days after acknowledging receipt of the complaint, the Commission shall provide written notice to the complainant and to the respondent of the date for a preliminary hearing.

C. Preliminary hearing.

(1) Right to Counsel. The complainant and the respondent shall have the right to be represented by counsel at any preliminary or final hearing. The Commission shall be represented by its Ethics Counsel on complaints initiated by the Commission.

(2) Issue. The issue at a preliminary hearing shall be whether there exists reasonable grounds to believe that a violation of this chapter or Chapter 34 has occurred.

(3) Stating the complainant's case. The Ethics Counsel shall state the alleged violation and shall describe in narrative form the testimony and other evidence which would be presented to prove the alleged violation as stated in the written complaint. The complainant shall then be given an opportunity to describe in narrative form the testimony and other evidence which would be presented to prove the alleged violation. All statements at a preliminary hearing shall be under oath. There shall be no cross-examination. There is no subpoena power at a preliminary hearing. Members of the Commission may question the complainant, the Ethics Counsel or the respondent.

(4) Respondent's right to respond. The respondent shall have the opportunity to respond but is not required to attend or make any statement. Such person may describe in narrative form the testimony and other evidence which would be presented to disprove the alleged violation. If the respondent agrees that a violation has occurred, he or she may at any time waive the right to a final hearing and consent to a decision based on the facts alleged in the complaint or otherwise agreed upon. The disposition of any complaint without final hearing shall be by written order of the Commission in the form specified by Subsection D(5).

[Amended 9-9-2014 by Ord. No. 14-O-09]

(5) Dismissing the complaint. The Commission, at any time during the preliminary hearing, may dismiss a complaint if the complaint does not allege conduct which would be a violation of this chapter or Chapter 34. Before a complaint is dismissed for failure to allege a violation, the complainant or Ethics Counsel shall be permitted one opportunity, within a time period to be specified by the Commission, to revise and resubmit the complaint.

(6) Commission's decision. At the conclusion of the preliminary hearing, the Commission shall determine whether a final hearing should be held. If the Commission does not determine that reasonable grounds exist to believe that a violation of this chapter or Chapter 34 has occurred, the complaint shall be automatically dismissed. If at any time during the preliminary hearing the Commission determines that there is an ambiguity in the law that prevents it from making a determination of whether reasonable grounds exist to support a violation, and that there was no apparent intent to violate the code, the complaint shall be dismissed. In this event, the Commission shall forthwith report its determination that an ambiguity exists to the Mayor and Council, while maintaining the confidentiality of the proceeding. If the Commission decides that there are reasonable grounds to believe that a violation occurred, it shall schedule a final hearing. A decision to conduct a final hearing is not a finding that a violation has occurred.

[Amended 1-11-2005 by Ord. No. 04-O-12]

(7) Confidentiality. During any preliminary inquiry by the Commission or following the filing of a complaint, all meetings and activities of the Commission in connection with the complaint and the preliminary hearing shall be conducted in a confidential manner. The Commission, the complainant and the respondent shall not disclose any information relating to the complaint, except that the Commission may release any information agreed upon in writing by the respondent.

D. Final hearing.

(1) Timing. The final hearing shall be held within 45 days, or as soon thereafter as practical, following the preliminary hearing and a determination by the Commission that there are reasonable grounds to believe that a violation of this chapter or Chapter 34 has occurred. The Commission may grant one postponement each to the complainant and to the respondent. Each postponement shall not exceed 30 days.

(2) Subpoena power. At least 15 days prior to the date of the scheduled final hearing, the respondent and Ethics Counsel may ask the Commission to seek the attendance of persons and production of evidence at the final hearing, pursuant to the Commission's subpoena powers. In the event that any person declines to respond to the request, the Commission may apply to the circuit court for an appropriate order.

(3) Public hearing. The final hearing is open to the public. All witnesses shall make their statements under oath. An audio or video recording of the hearing shall be retained by the Commission. The Ethics Counsel shall state the alleged violation and shall present such testimony or other evidence necessary to prove the alleged violation as stated in the written complaint. The respondent will be afforded an opportunity to cross-examine witnesses and to present evidence.

(4) Standard of proof. The issue at a final hearing shall be whether a violation of this chapter or Chapter 34 has occurred. The Commission shall make its determination based on the preponderance of the evidence in the record of such hearing.

(5) Decision. After consideration of the evidence, the Commission shall prepare a written report setting forth its findings of fact and conclusions of law with respect to each of the alleged violations. If at any time during the hearing the Commission determines that there is an ambiguity in the law that prevents it from making a determination of whether a violation has occurred, and that there was no apparent intent to violate the code, the complaint shall be dismissed. In this event, the Commission shall report its determination that an ambiguity exists to the Mayor and Council. A copy of the report shall be mailed or delivered to the complainant and the respondent within five working days from the date of the decision. The report shall be made available to the public and a copy submitted to the Mayor and the Council within 10 working days from the date of the decision.

[Amended 1-11-2005 by Ord. No. 04-O-12]

E. Appeals. Any respondent aggrieved by a decision or action of the Ethics Commission under this section shall have the right to appeal such decision or action to the Circuit Court of Prince George's County. Jurisdiction to hear and determine such appeals is hereby conferred upon the Circuit Court.

§ 38-9 Penalties.

[Amended 8-9-2011 by Ord. No. 11-O-10]

If the Commission determines that a violation of this chapter or Chapter 34 has occurred, it shall determine the appropriate penalty or other relief. The Commission may receive additional testimony or statements before considering the appropriate remedy or penalty, but is not required to do so. If the respondent relied upon a written advisory opinion, the Commission shall consider that fact. The Commission may:

A. Letters of reprimand. The Commission may issue a public letter of reprimand to the respondent and may direct respondent to submit a new or amended report or statement, otherwise required under this chapter or Chapter 34, where such report or statement was not filed by respondent when required or was not filed in compliance with the requirements of said chapters.

B. Fines. The Commission also may impose a penalty for each violation, in an amount not to exceed the amount set forth in Chapter 110, Fees and Penalties, for any violation of the provisions of this chapter or Chapter 34. All violations of this chapter or Chapter 34 shall be municipal infractions.

C. Injunctions. The Commission may issue a cease-and-desist order against any person found to be in violation of the provisions of this chapter or Chapter 34 and may seek enforcement of this order in the Circuit Court for Prince George's County, Maryland. The court may issue a cease-and-desist order and also may issue a fine as set forth in Chapter 110, Fees and Penalties, for any violation of the provisions of this chapter or Chapter 34.

D. Sanctions. If the person found in violation of the provisions of this chapter or Chapter 34 is a City official or employee, the Commission shall advise the Mayor and Council of its findings regarding a City official or employee subject to the authority of the Mayor and Council and shall advise the City Manager of its findings with respect to any City employee directly subject to the authority of the City Manager. In addition to any penalties heretofore provided by this section, a City official or employee may be subject to disciplinary or other personnel action, including but not limited to termination of employment or suspension of City salary or other compensation and removal from office. The Commission may include with its findings a recommendation as to the sanction deemed appropriate to the gravity of the violation.

E. Enforcement of required disclosures. In addition to any other enforcement mechanism authorized in this Code, the Ethics Commission may remove any appointed City official for failure to file the disclosures required by this article. The Commission, or its designee, shall provide any required disclosure form to the member with instructions concerning when and where to file same. In the event that the disclosure form is not timely filed, the Commission shall telephone the member concerning the failure to file, and shall send written notice to the member at his/her last known address, requiring that the member show cause in writing within 10 days why he/she should not be removed from his/her position. A copy of the notice shall be sent to the Chair of any affected authority, board, commission or committee. The Ethics Commission may, by majority vote, extend the time for the filing of the required disclosure form, or may remove the member from an authority, board, committee or commission. Any decision to remove a member from an authority, board, commission or committee may be appealed in writing to the Mayor and Council within 30 days of notice of removal.

§ 38-10 Exemptions and modifications.

[Amended 8-9-2011 by Ord. No. 11-O-10]

A. The Commission may grant exemptions and modifications to the provisions of Article III and Article IV, § 38-17, of this chapter to employees and to appointed officials if it determines that the application of such provisions would constitute an unreasonable invasion of privacy or significantly reduce the availability of qualified persons for public service to the City and if it also finds that the exemption or modification would not be contrary to the purposes of this chapter. Requests for an exemption or modification under this section shall be in writing, signed under oath.

B. The Commission shall notify the Mayor and Council in writing, within 30 days, of any exemptions or other modifications granted under this section.