FREDERICK COUNTY GOVERNMENT

Commissioners

Frederick County Ethics Commission

Blaine R. Young
President

Gwen Romack, Chair

Office
ofofthe
Office
theCounty
CountyAttorney
Attorney
Winchester Hall, 12 East Church Street
Frederick, Maryland 21701
www.FrederickCountyMD.gov

C. Paul Smith
Vice President
Billy Shreve
David P. Gray
Kirby Delauter
Lori L. Depies, CPA
County Manager

301-600-1030

FREDERICK COUNTY ETHICS COMMISSION

OPINION 14-01

Introduction
On December 9, 2013, the Ethics Commission received a complaint alleging that two
County Commissioners had violated the Ethics Ordinance. Shortly before the Ethics
Commissions January 13, 2014, meeting, the complainant supplemented the complaint with
additional records for the Ethics Commission to consider. The complainant also provided
additional materials to the Ethics Commission on January 24, 2014.
Due to the volume of the materials presented and the timing of the submissions, the
Ethics Commission was unable to complete its review of the various exhibits before its January
13 meeting. The Commission was able to make a decision at that meeting, however, with
respect to the more limited portion of the complaint pertaining to one of the County
Commissioners. The allegations against that Commissioner were that he had misused his office
by using the County seal on a private website created to support a legislative proposal that the
Commissioner supported and by the Commissioners use of his official title on that website. On
January 14, 2014, the Ethics Commission notified the complainant that it had dismissed the
complaint against that Commissioner after the Commission found that the facts stated in the
complaint were insufficient to warrant further Ethics Commission action.
The Ethics Commission has now completed its review of the materials provided by the
complainant. This Opinion contains the Ethics Commissions findings on those allegations
against the second County Commissioner.
The Complaint
The complaint alleges a number of conflicts of interest on the part of a County
Commissioner. The Ethics Commission has grouped the complainants allegations into the
following categories:
1.

The County Commissioner owns inter-related businesses that operate in Frederick

County. Some of these businesses are operated to benefit other entities that the
Commissioner owns.

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2.

The Commissioner uses campaign funds to benefit businesses in which he has an

interest or in which his business partners or associates have an interest.

3.

The County Commissioner collected campaign contributions from members of

the community and from businesses operating in the County that have interests
that could be affected by the Commissioners decisions and actions as a member
of the Board of County Commissioners.

4.

The Commissioner failed to disclose certain business interests, including

ownership of business trade names, in his annual financial disclosure statements.

5.

The Commissioner failed to disclose certain sponsors of the radio talk show that
he hosts.

6.

The Commissioner uses his County position to gain an unfair advantage for his
radio talk show, which benefits the Commissioner and his associates financially
and furthers his political agenda.

7.

One of the business entities that the Commissioner partially owns receives funds
from the State for services provided to the State Department of Social Services
and the Frederick County Health Department.

8.

The Commissioners business interests improperly benefitted from FEMA grant

funds spent by the County.

9.

One of the Commissioners businesses may be participating in the Countys Taxi

Voucher Program, notwithstanding the Commissioners statements that the
business would not be a participant.

10.

The Commissioner failed to recuse himself from voting and participating in

matters where he has a conflict of interest.

11.

There were reported ex parte contacts between the Commissioner and others with
whom he has personal or business ties.

12.

Lobbying expenditures were not disclosed.

13.

An earlier complaint was improperly handled and should be subject to an

outside ethics review.
Discussion

When considering complaints filed against County officials and employees, the
limitations on the Ethics Commissions jurisdiction need to be noted. The Ethics Ordinance
authorizes the Ethics Commission to decide complaints alleging that the Ethics Ordinance has
been violated. More general complaints that officials and employees have acted in an unethical,
or even illegal, manner are outside the Ethics Commissions jurisdiction. As will be noted
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below, several of the allegations contained in the complaint are beyond the scope of the Ethics
Commissions jurisdiction and therefore cannot be resolved in this Opinion.
1.

The County Commissioner owns inter-related businesses that

operate in Frederick County. Some of these businesses are
operated to benefit other entities that the Commissioner owns.

The County Commissioners most recent financial disclosure statement (for calendar year
2013) reveals that the Commissioner is the sole or partial owner of four business entities and that
he receives earned income from three of those entities. In the additional interests section of
the disclosure statement, the Commissioner, who hosts a radio talk show1, further discloses that
money from the sponsors of the radio show is paid directly to one of the entities that he owns.
The disclosure statement lists the sponsors of the show as of April 30, 2013. The Commissioner
is not an employee of the radio station and the station does not pay the Commissioners salary.
The Commissioner further discloses the fact that another one of his businesses, which provides
transportation services, operates under a number of different trade names. The Commissioner
listed the trade names in his disclosure statement.
The Commissioner acknowledges that he owns and operates different businesses in
Frederick County. This is not a conflict of interest and does not, by itself, violate the Ethics
Ordinance. Similarly, the fact that one of the businesses privately owned by the Commissioner
is operated to financially benefit one or more other businesses the Commissioner privately owns
is not a conflict of interest and does not violate the Ethics Ordinance.
2.

The Commissioner uses campaign funds to benefit businesses in

which he has an interest or in which his business partners or
associates have an interest.

The allegation that the County Commissioner improperly used campaign funds to benefit
the Commissioner, his business interests or the interests of others with whom he is associated is
beyond the scope of the Ethics Commissions jurisdiction. While the Ethics Commission sees no
merit to this allegation, the Commission has no power to address this claim.
3.

The County Commissioner collected campaign contributions from

members of the community and from businesses operating in the
County that have interests that could be affected by the
Commissioners decisions and actions as a member of the Board of
County Commissioners.

The Ethics Commission has no authority under the Ethics Ordinance to oversee the
collection or use of campaign funds. The fact that a County Commissioner votes on matters that
affect campaign contributors, financially or otherwise, does not, by itself, constitute a violation
of the Ethics Ordinance.
1

The County Commissioner is not currently acting as the shows host. He continues, however, to own the business
responsible for the show. As the Commissioner may resume acting as the shows host before his term as a County
Commissioner ends, the issues raised by the complainant in the complaint are not moot.

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4.

The Commissioner failed to disclose certain business interests,

including the ownership of business trade names, in his annual
financial disclosure statements.

The complaint alleges that the Commissioner did not disclose his interest in two towing
companies. The first towing company identified in the complaint was a trade name for one of
the companies in which the Commissioner has a disclosed business interest. According to
information provided to the Ethics Commission by the Commissioner, this towing company has
not been in operation for four or five years and all of the towing companys assets and equipment
were sold. The Commissioners financial disclosure statement for the July 1, 2009 through June
30, 2010 time period lists the towing company as one of the trade names owned and operated by
one of the companies in which the Commissioner has an ownership interest. The Commissioner
also advised the Ethics Commission that the towing company did not do any work for Frederick
County and that it was not on the towing list maintained by the Sheriffs Office.
With regard to the second towing company, which was not listed on the Commissioners
financial disclosure statements, the Commissioner informed the Ethics Commission that this
towing company purchased the trade name of the towing company referenced in the preceding
paragraph within the past year or two. The assets and equipment of the first towing company
were not purchased by the second towing company, however. The Commissioner has stated to
the Ethics Commission that he has never had an interest in the second towing company. The
Ethics Commission finds that the County Commissioner has made the disclosures required by
the Ethics Ordinance and there was no violation of the Ethics Ordinance.
There is a separate allegation in the complaint that the Commissioner failed to identify in
his County financial disclosure statements a sole-source contract that one of his businesses has to
provide transportation services for federally funded employees, guests and government travelers.
Given the fact that this is not a contract with Frederick County, there was no need for this
contract to be included in the Commissioners financial disclosure statements. The Ethics
Ordinance does not require the Commissioner to identify every customer who uses or pays for
the services of one of his businesses, particularly in the absence of a more direct link to the
Commissioners duties as a member of the Board of County Commissioners. Again, the Ethics
Commission finds that the County Commissioner has made the disclosures required by the
Ethics Ordinance and there was no violation of the Ethics Ordinance.
5.

The Commissioner failed to disclose certain sponsors of the radio

talk show that he hosts.

The money from the sponsors of the radio show is paid to a corporation that the County
Commissioner owns. The sponsors have a business relationship with the Commissioners
corporation. In return for their sponsorship, the sponsors receive publicity on the radio show.
The Commissioner has voluntarily chosen to disclose the names of sponsors for his radio show
on his annual disclosure statements. The Ethics Commission finds that the Ethics Ordinance
does not require disclosure of the names of these sponsors or any other private entity, although
the Commissioner may elect to continue making this disclosure on a voluntary basis.

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If there were sponsors of the radio show who were not identified on the Commissioners
financial disclosure statements, this would not constitute a violation of the Ethics Ordinance
because the Ethics Ordinance does not require that the sponsors be identified.
6.

The Commissioner uses his County position to gain an unfair

advantage for his radio show, which benefits the Commissioner
and his associates financially and furthers his political agenda.

In January 2014, the complainant submitted two affidavits to the Ethics Commission.
The first affidavit stated that the Commissioner asked another County Commissioner to appear
on his radio show to discuss a pending Frederick County procurement matter and library
facilities. The second affidavit stated that a different County Commissioner had been a guest cohost of the Commissioners radio show, along with a person who has ties to the Commissioner.
Additional records purport to demonstrate that other Commissioners were asked to serve as cohosts of the radio show and that public matters were discussed on some of the shows.
This is not the first time that the complainant has filed an ethics complaint against the
Commissioner challenging his continued hosting of the radio show after becoming a County
Commissioner. In December 2011, the complainant filed an ethics complaint against the
Commissioner. That complaint focused on the Commissioners alleged conflicts of interest in
hosting the show while he also served as a County Commissioner. After consideration of the
complaint, the Ethics Commission determined that there was an insufficient basis to warrant
further action on its part, as the allegations in that complaint, even if true, would not constitute a
violation of the Ethics Ordinance. The Ethics Commission reaches the same conclusion here.
The fact that the Commissioner and others who have business ties to him may benefit from the
talk show financially or politically does not create a conflict of interest under the Ethics
Ordinance.
7.

One of the business entities that the Commissioner partially owns

receives funds from the State for services provided to the State
Department of Social Services and the Frederick County Health
Department.

The Commissioners financial disclosure statement indicates that the transportation

company he partially owns provides services for the Department of Social Services and the
Frederick County Health Department. According to the Commissioner, these services have been
provided for a number of years, beginning before he had an interest in the business. There is no
contract for the services, which are provided on an as-needed basis, and the company does not
solicit business from either the Department of Social Services or the Health Department.
Payments are made by the State of Maryland from State funds. The Commissioner notes that he
consulted with the County Attorneys Office to determine whether this business arrangement
presented a conflict of interest under the Ethics Ordinance and that he was told that it did not.
The Ethics Commission concurs with this conclusion.

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8.

The Commissioners business interests improperly benefitted from

FEMA grant funds spent by the County.

Frederick County obtained a federal grant for the advertising, recruitment and retention
of County Fire and Rescue personnel. According to the complaint, the grant application stated
that funds would be used to purchase advertising on three radio stations. The complaint alleges
that this was not done, but that funds were used to pay for advertising only on the radio station
that broadcasts the Commissioners show and that taxi top signs were improperly purchased
from a vendor with ties to the Commissioner.
The allegation that FEMA grant funds were improperly used under the terms and
conditions of the grant cannot be addressed by the Ethics Commission, as it is outside the scope
of the Ethics Commissions jurisdiction under the Ethics Ordinance. This is also true for the
related allegation that there was a failure to comply with the Countys procurement process when
FEMA funds were spent. The Commission also notes that the Commissioner has no ownership
interest in the radio station on which the advertising was purchased.
9.

One of the Commissioners businesses may be participating in the

Countys Taxi Voucher Program, notwithstanding the
Commissioners statements that the business would not be a
participant.

While the Board of County Commissioners has approved a taxi voucher program, the
program has not been implemented, as funding for the program is not yet available. (The
program is due to start on July 1, 2014.) Notwithstanding the County Managers discussion with
the Commissioner about the status of the taxi voucher program, the Commissioner did not
participate in the Boards vote to adopt the program, nor did he participate in the Boards
discussion. Further, the Commissioner has announced that his company will not participate in
the voucher program. For these reasons, the Commission finds that there has been no conflict of
interest violation by the Commissioner. Given the fact that the Commissioner did not vote on
the program or participate in the Boards discussion on whether to adopt the program, it does not
appear that there would be a conflict of interest under the Ethics Ordinance were the
Commissioners business to participate in the program in the future.
10.

The Commissioner failed to recuse himself from voting and

participating in matters where he has a conflict of interest.

The complaint cites the Commissioners participation in the Board of County

Commissioners consideration of a contract award under RFP Number 14-047, where towing
companies were awarded contracts. The complaint alleges that the Commissioner violated the
Ethics Ordinances conflict of interest provisions by failing to disclose his business ties with
persons benefitting from the contract awards. Based on the facts available to the Ethics
Commission, by the time the Board considered the RFP, the Commissioner no longer owned or
operated a towing company and had no interest in one of the companies awarded a contract. The
only connection to that company was the Commissioners sale of a trade name that his company
no longer used. Thus, there is no conflict of interest under the Ethics Ordinance.
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11.

There were reported ex parte contacts between the Commissioner

and others with whom he has personal or business ties.

Included with the complaint were copies of the Public Ethics Reports prepared by the
Office of the County Manager for 2011 and 2012. A copy of the Public Ethics Report for 2013
has also been provided to the Ethics Commission. As outlined in the complaint, the
Commissioner who is the subject of this complaint has identified ex parte contacts that the Public
Ethics Law requires him to disclose. Some of these contacts were with land use applicants and
others were with a registered lobbyist. The Public Ethics Law does not require a County
Commissioner to recuse himself from further participation in a land use matter simply because
one or more ex parte contacts have been made. Without more, a Commissioners recusal is not
required when contacted by a lobbyist, an applicant with personal or professional ties to the
Commissioner, or a person or entity that has made a political contribution to the County
Commissioner. In each situation, the Commissioner is expected to determine on a case-by-case
basis whether recusal is appropriate due to a conflict of interest or the appearance of a conflict of
interest. The Ethics Commission will not automatically infer the existence of a conflict of
interest or the appearance of a conflict of interest without specific facts to support such a
conclusion.
12.

Lobbying expenditures were not disclosed.

The log of registered lobbyists maintained by the County Attorneys Office shows that as
of December 2013, the attorney cited in the complaint was a registered lobbyist for Stanley
Enterprises, LLC and The Matan Companies. The attorney has filed Lobbying Activity Reports
for 2013 showing the amount that each client paid for his work as a lobbyist. No reportable
expenses other than this compensation were identified in either report.
It appears that the attorney has properly registered as a lobbyist and submitted the
required spending reports. Even if this were not the case, it would not constitute a violation of
the Ethics Ordinance by the Commissioner who is the subject of the present ethics complaint.
13.

An earlier complaint was improperly handled and should be

subject to an outside ethics review.

Finally, the complainant argues that the complaint decided by the Ethics Commission in
Ethics Opinion 13-02 was improperly handled. The complaint alleges that it was improper for
the County Commissioner involved in that matter to bring in an attorney who is a registered
lobbyist to represent him in that matter. The complainant does not ask that the earlier complaint
be reheard, but instead that an outside ethics review be conducted to address the Commissioners
roles, duties and actions in this matter.
The Ethics Commission sees no need for a review of how the earlier complaint was
handled. The Commissioner was entitled to be represented by legal counsel of his choosing
when he appeared before the Ethics Commission. The fact that the attorney selected is also a
registered lobbyist with ties to the Commissioner who is the subject of the present complaint is
immaterial.
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Conclusion
For the reasons stated above, the Ethics Commission finds that the Commissioner has not
violated the Ethics Ordinance as alleged in the complaint.

/s/
Gwen Romack, Chair

/s/
R. Carl Benna, Commission Member

/s/
Brian Duncan, Commission Member

/s/
C. Steven Snow, Alternate Commission Member

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