CHESTERTOWN PUBLIC ETHICS LAW OUTLINE

ByDr. Johnnie A. Jones III, Esq.

Ethics Commission ChairmanOctober, 2015

CHAPTER 12: PUBLIC ETHICS LAW• I. Short Title• II. Statement of Purpose and Policy• III. Definitions• IV. Administration• V. Rules of Procedure-Commission Meetings• VI. Prohibited Conduct and Interests• VII. Financial Disclosure-Elected Officials and Candidates• VIII. Financial Disclosure-Employees and Appointed Officials• IX. Lobbying Disclosure• X. Enforcement• XI. Penalties Cumulative• XII. Liberal Construction of Ordinance • XIII. Severability

II. PURPOSE AND POLICY

• Maintenance of Impartiality and Independent Judgment of Public Officials

• Financial Disclosure Required to Guard Against Improper Influence or The Appearance of Improper Influence

III. DEFINITIONS

• Terms, Phrases, Words and Their Derivatives Shall Have the Meanings Given In This Section

• Words Not Defined Shall be Given Their Common and Ordinary Meanings Unless Context Suggest Otherwise

IV. ADMINISTRATION

• Town Ethics Commission Created• Advisory Body Responsible for Interpreting and Advising

Persons Subject to the Public Ethics Law (The Law)• On Advice of Commission Attorney, Is Responsible for

Hearing and Deciding Violations of the Law• Complaint and Hearing Procedure

– Initiated by written complaint

• Investigation (Subpoenas/Subpoena duces tecum)– Subpoenas (duces tecum)– Commission Attorney– Refer complaint for criminal investigation

IV. ADMINISTRATION (Cont.)

• Grounds for Dismissal– Insufficient facts– No jurisdiction– No authority to reverse or modify prior action of Mayor,

Mayor and Council or Public Servant– Complaint is defective– Respondent cured each allegation 15 days after notice– No violation occurred

• Grounds for Formal Hearing– Standard of proof: Clear and Convincing Evidence– Written findings of fact, conclusions of law and order required

IV. ADMINISTRATION (Cont.)

• Town Clerk Designated Custodian of the Records and Serve as Recording Secretary

• Commission Shall Conduct Public Information and Education Program Annually

• Issue Advisory Opinions Upon Request of Public Servant

• Certify Compliance Annually to State Ethics Commission on or before October 1 of Each Calendar Year

V. RULES OF PROCEDURE – COMMISSION MEETINGS

• Adoption of Written Rules– Commission shall adopt written rules governing

procedures for holding meetings and hearings subject to approval by the Mayor and Council

VI. PROHIBITED CONDUCT AND INTERESTS

• Non-Participation at Meeting on Any Matter that is a Conflict of Interest or Have the Appearances of Impropriety– Exceptions after disclosure: Permission by Commission; Exercise

of administrative or ministerial duty; Disqualification creates less than a quorum for action or prevents only person required to act

• Areas that Pose Potential Conflict of Interest– Business interest, employee interest, financial interest

(Debtor/Creditor), solicitation or receipt of gifts, disclosure of confidential information, ex parte contact

• Duty to Leave Meeting or Not Participate in Deliberations

VI. PROHIBITED CONDUCT AND INTERESTS (Cont.)

• Exemptions and Waivers– Commission recommendation to Mayor and

Council to grant exemptions and waivers or make modifications whereas application of this section would constitute an unreasonable invasion of privacy and would significantly reduce the availability of qualified persons for public service, and the recommendation would not be contrary to the purposes of the Public Ethics Law

VII. FINANCIAL DISCLOSURE: ELECTED OFFICIALS AND CANDIDATES

• Financial Disclosure Statement Required• Incumbent Required to File Annually by April 30 of Each

Calendar Year• Appointed Officials Must File for Preceding Year Within 30

Days of Appointment• Officials Leaving Office Must File Within 60 Days After

Leaving Office• Withdrawal of Candidacy if Candidate Fails to File Within

20 Days of Withdrawal of Candidacy Deadline After Notice Given by Town Clerk or Board of Election Supervisor

VII. FINANCIAL DISCLOSURE: ELECTED OFFICIALS AND CANDIDATES (Cont.)

• Financial Disclosure Statement is Public Record– Notice of name and address given to official whose Financial Disclosure

Statement is copied• Retention Requirement: Four (4) Years From Date of Receipt• Contents

– Interests in: real property, corporations, partnerships, business entities doing business with Town, gifts that exceeds $20 or series of gifts exceeding $100 from person doing business with Town, employment or indebtedness with business entities doing business with Town, immediate family members employed by Town, sources of earned income, schedule of additional interests

• Financial Disclosure Statements Review by Commission Attorney for Compliance

• Failure of Official to File Financial Disclosure Statement May be Grounds for Removal from Office

VIII. FINANCIAL DISCLOSURE: EMPLOYEES/APPOINTED OFFICIALS

• Application of Section VIII– Town Manager, Housing Administrator, Utilities Manager,

Recreation Commission Chairman, Members of the Planning Commission, Members of the Historic District Commission, and Members of the Board of Appeals

• Financial Statement Filed Annually on or before April 30 of Each Calendar Year

• Contents:– Gifts received by town contractors and anyone regulated by

Town– Outside employment and interest that raise a conflict or

potential conflict of interest

VIII. FINANCIAL DISCLOSURE: EMPLOYEES/APPOINTED OFFICIALS (Cont.)

• Exemptions or Modifications– Available for Boards and Commissions for an

unreasonable invasion of privacy and would significantly reduce the availability of qualified persons for public service and does not violate purpose of this section

IX. LOBBYING DISCLOSURE

• Lobbying Registration Statement Requirement– Personal appearances before a Town Official or employee

with intent to influence performance of official duties– Gift or gifts to Town Official or employee in a calendar year

that exceeds $250 on food, entertainment or other gifts– Registration statement required on or before the later of

January 15 of the calendar year or within 5 days after first performing the act requiring registration

– Contents require identity and identity of any agency relationship and disclosure of identity of official or employee receiving a gift or series of gifts that exceed $250

IX. LOBBYING DISCLOSURE (Cont.)• Exempt Acts

– Professional services consultation and drafting opinions on proposed or pending Town Council action

– Appearances at request by Mayor and Council– Actions trustee, administrator or faculty member of non-profit independent

college or university in State not primarily attempting to influence legislative or executive action

– Appearances as official duty of elected or appointed official on behalf of political subdivision, State or United States

– Actions of publisher or working member of Media in ordinary course of business of disseminating news or making editorial comment to general public and not engaged in further or other lobbying for self-interest or employer interest

– Appearances by individuals invited by lobbyist to appear before Mayor and Council– Religious organizations– County and municipal lobbyist– Principal not required to file if s/he reasonably believes agent has or will file

X. ENFORCEMENT

• Commission May Enforce Late Fees for Financial Disclosure Statements and Lobby Registration Statement or Lobbyist Report– Late fee of $2 per day up to $250 for failing to

timely file financial disclosure statement– Late fee of $10 per day up to $250 for failure to

timely file registration statement or lobbyist report

• Issue Cease and Desist Order for Violations

X. ENFORCEMENT (Cont.)

• Remedies for Violations of Public Ethics Law: Commission Action– Issue order to cease and desist from violation– Issue reprimand– Recommend to appropriate authority or discipline via censure or

removal– Violation of Section 9 (IX)

• Require Lobbyist to file additional reports or information• Impose fine not exceeding $5,000 for each violation• Suspend registered Lobbyist for willful violation or if s/he has been

convicted of criminal offense arising from lobbying activities

– Recommend removal or suspension from office to Mayor and Council

X. ENFORCEMENT (Cont.)

• Remedies for Violations of Public Ethics Law: Mayor and Council Action– Reprimand– Conduct hearing– Remove public official from office for failure to

timely file financial disclosure statement

X. ENFORCEMENT (Cont.)

• Formal Hearings: Procedure by Mayor and Council– Due Process: Twenty day notice of hearing – Rules of Evidence applies– Right to fair hearing and cross examination– Right to counsel and discovery (exculpatory

evidence)– Subpoena power (duces tecum) – Request Maryland Comptroller permission to

examine income tax returns of Respondent

X. ENFORCEMENT (Cont.)

• Formal Hearing: Mayor and Council (Cont.)– Majority vote required for action

• Public admonition• Public reprimand• Suspension• Demotion• Forfeiture• Removal from office• Termination of employment• Issue cease and desist order

– Direct Commission Attorney to file petition for injunctive order of relief in Circuit Court for Kent County requiring compliance with Public Ethics Law

X. ENFORCEMENT (Cont.)

• Circuit Court Action– Issue order to cease and desist– Void an official action by public servant with conflict of

interest• Exceptions

– Appropriation of Public funds– Levying taxes– Providing issuance of bonds, notes or other public activity

– Impose a fine up to $5,000 each day for violation– Additional sanctions

• Enforce employment termination or other disciplinary action

X. ENFORCEMENT (Cont.)

• Three (3) Year Personal Record Retention Requirement From Date of Filing

• Duties of All Public Servants– Cooperate and respond to any inquiries by Town

Attorney, the Commission or the Commission Attorney in Connection With An Ethics Violation Investigation

– Duty to report any ethical violation– Duty to comply with other laws

X. ENFORCEMENT (Cont.)

• Violations of Public Ethics Law– Criminal convictions or violation of policies regulating political activity– Conviction of any felony and misdemeanors involving moral turpitude– Finding of guilt of violating Federal, State or Town law prohibiting

discrimination against a protected class– Finding of guilt for sexual harassment in Federal, State or Town law– Found guilty of retaliation– Found guilty of violating any state law governing lobbying activities– Found guilty of violating any Federal, State or Town laws or policies

regulating political activity– Criminal Misdemeanor Offense for any person who knowingly and

wilfully violate Section 9 (IX. Lobbying Disclosure) of Public Ethics Law

X. ENFORCEMENT (Cont.)

• Conviction and Sentence– $5,000 fine, and/or;– 1 year jail

• Statute of Limitations– 1 year after complaint filed– 6 months (180 days) to file complaint for violation

XI. PENALTIES CUMULATIVE

• Penalties Shall Be Cumulative and not Exclusive of Each Other or of Any Other Penalties Which May be Imposed to Any Other Laws or Policies

XII. LIBERAL CONSTRUCTION OF ORDINANCE

• Provisions of This Ordinance Are to be Construed Liberally to Protect the Public Interests and Consistent to All Applicable Federal and State Laws and Applicable Provisions of the Town Charter

XIII. SEVERABILITY CLAUSE

• Conflicting Provision of this Chapter Shall be Considered a Separate, Distinct and Independent Part of this Chapter and Shall Not Affect the Validity and Enforceability of this Chapter as a Whole, or Any Part Other Than the Part Declared to be Invalid