COMCOR 19A.09.01 Commission Proceedings Concerning Possible Violations of the Public Ethics Law

This regulation addresses the handling of enforcement matters pursuant to the Public Ethics Law by the Ethics Commission and its staff. Enforcement issues covered by this regulation arise when a violation of the Montgomery County Public Ethics Law may have occurred and the Commission staff or the Commission becomes aware of the issue. The regulation covers the handling of issues by the Commission and not by other agencies; thus, other proceedings, such as adverse personnel actions, may be instituted separate and apart from Commission consideration of an enforcement issue.

2.0 Preliminary Inquiry – When Commission staff becomes aware of a possible ethics violation, it will assess the information received for compliance with Public Ethics Law requirements. Commission staff may conduct a preliminary inquiry (which does not involve the statutory investigative authorities of the Commission) to determine whether a matter merits being presented to the Commission for its consideration or other resolution. Where the Commission staff obtains prima facie evidence of a violation of the Public Ethics Law, Commission staff has available to it a number of options to resolve the matter.

2.1 Resolution of Minor Violations – Many potential violations involve minor compliance issues with financial disclosure, outside employment, and lobbying registration and reporting requirements. Commission staff will resolve many of the compliance issues by obtaining compliance with requirements by the responsible person.

2.2 Civil Citations – Authorized Commission staff can issue a civil citation for an apparent offense of the Public Ethics Law, enforceable in District Court.

2.3 Settlement – In lieu of issuing or enforcing a civil citation, Commission staff can seek a settlement from the person cited or to be cited; any payment to settle a matter may not exceed statutory limits for violations of the Public Ethics Law.

2.4 Fines – For financial disclosure non-compliance, Commission staff may impose the statutory fine in 19A-32(b) and refer the filer to the Chief Administrative Officer or the Council Administrator for disciplinary action. Within 30 days after a fine is imposed, the filer may request a waiver or reduction of the fine. The request must be in writing to the Commission showing good cause why the fine should be waived or reduced. Upon continued failure of a filer to file the required report or pay the fine imposed, authorized Commission staff may issue a citation enforceable in District Court imposing additional fines and penalties or present the noncompliance issue to the Commission.

2.5 Proposals to Cure Apparent Violations – Commission staff can elevate a noncompliance issue by presenting it to the Commission for consideration of whether to cause an investigation and (after investigation) file a complaint. Commission staff can ask the person responsible for the possible violation any time before the Commission files a complaint or sets a matter for hearing if he or she would like to propose a cure to the Commission to remedy the possible violation. Any proposal to cure must recite stipulations of fact and law and any actions taken or agreed to be taken. Commission staff must present any such proposal to the Commission for its consideration. The Commission may accept or reject the proposal independent of staff’s recommendation or agreement. In the event the Commission accepts the proposal to cure, the Commission staff may resolve the matter based on the terms agreed to by the Commission. Upon satisfaction of the terms of the accepted proposal, the Commission staff will close the matter. Any accepted proposal acknowledging a violation of the ethics law will be made public.

3.0 General – The Commission will consider information presented to it by staff about a potential violation and may take any one of the following courses of action.

3.1 Obtaining Additional Information – The Commission may ask staff to request information from County agency officials or conduct a preliminary inquiry into a matter to obtain sufficient information to determine if an investigation is necessary to resolve a matter or if other action is warranted.

3.2 Referral to Management – The Commission can refer a matter to a County agency for management consideration and resolution without conducting a Commission investigation or making any findings. In deciding whether to refer a matter, the Commission will weigh the benefit of reaching independent conclusions through investigation and adjudication versus the efficiency of agencies resolving matters themselves through internal investigation and personnel action if appropriate. The decision whether to employ Commission investigation and possible adjudication will include analysis of whether Commission action is necessary to ensure public confidence.

3.3 Citation Issuance – The Commission may direct authorized staff to issue a citation in connection with an apparent offense. The direction to issue a citation in a matter does not constitute a finding of a violation of the Public Ethics Law by the Commission. A citation is an appropriate remedy for apparent violations of the Public Ethics Law involving failure to meet financial disclosure or lobbying filing requirements; financial disclosures of prohibited gifts; outside employment without an approved outside employment request; and other instances where an apparent violation of the Public Ethics Law exists and the Commission determines that a matter would be better handled through the citation process rather than through the Commission’s investigation and adjudicatory process. Factors the Commission may consider in making this determination include the complexity of the facts involved; whether novel issues of law are present; and the relative importance of the matter in terms of the Commission’s mission to ensure public confidence in the impartiality of public employees.

3.4 Investigation Authorization – The Commission can cause a matter to be investigated if it finds in writing that an investigation is necessary to resolve the matter.

3.5. Closure – The Commission may close a matter or decide to take no further action in a matter if in the Commission’s discretion it determines that no further action is warranted.

4.0 Formal Complaints – A formal complaint is an allegation of facts made under oath that would support a reasonable person in concluding that a violation of the Public Ethics Law or Sections 2-109, 11B-51, or 11B-52(a) has occurred.

4.1. Review of Complaints – A formal complaint received by Commission staff must be presented to the Commission. Upon review of a formal complaint, the Commission can dismiss the complaint for failure to include facts sufficient to support a violation, set the matter for hearing, or cause an investigation of the matter. The Commission may also dismiss the Complaint without prejudice on the basis that the matter does not merit the resources associated with investigation and adjudication of the alleged violation and refer the matter to Commission staff for resolution or for referring to agency management for appropriate disposition.

4.2 Commission Complaints – The Commission can, on its own motion and based on a report of investigation, file a complaint regarding a matter.

5.0 A Commission investigation is an investigation conducted pursuant to 19A-9 of the Public Ethics Law after the Commission has found in writing that an investigation is necessary to resolve a matter. The investigation will be conducted by the Commission staff, the County Attorney, the Inspector General or such other person temporarily retained to conduct the investigation.

6.0 Setting a Matter for Hearing – Once a formal complaint has been filed, and a report of investigation, if any, has been received by the Commission, the Commission may set a matter for hearing if it finds reasonable cause to believe that a violation of the ethics law has occurred.

6.1 Consent Orders – Once a matter has been set for hearing, the Commission may dispose of a matter by consent order instead of conducting the adjudicatory hearing. The terms of a consent order can be negotiated between the subject of the complaint and the person assigned to prosecute the matter. Any consent order proposed by the parties must be presented to the Commission for its consideration. The Commission may accept or reject the proposed consent order, independent of any proposed agreement entered into between the prosecuting party and the subject of a complaint. In the event the Commission accepts the consent order, the Commission staff will notify the complainant, if any, of the resolution and close the matter. Any accepted proposal acknowledging a violation of the ethics law will be made public. If the Commission rejects the proposed consent order, the hearing will be conducted as originally scheduled.

6.2 Procedures – Commission proceedings are not governed by the County’s Administrative Procedures Act (Chapter 2A of the County Code), though the Commission will look to the Act when appropriate for guidance, including section 2A-7(b) regarding permissible discovery. All papers and pleadings filed with the Commission must contain a Certificate of Service indicating service upon the other party. Each party must file a Notice of Service with the Commission for any discovery served upon the other party. Responses to requests for written discovery are due 30 days after service.

6.3 Prehearing Submissions and Conferences –

a. The contents of prehearing submissions must meet the requirements of Section 2A-7(a) of the County Code.

b. The Commission may request the parties to attend a prehearing conference and submit to Commission staff a prehearing statement including a proposed list of witnesses; any documents that will be introduced at the hearing; and an estimated length of the presentation of their case. Any evidence sought to be admitted at the hearing that has not been provided to the Commission with the prehearing statement at least 10 days before the hearing may be barred from admission into evidence, at the discretion of the Chair of the Commission.

c. The Commission may designate a Commission member to conduct a prehearing conference to address preliminary motions; scheduling; the issuance of subpoenas; discovery; stipulations or other agreements to avoid unnecessary evidence; identification of witnesses; and avoidance of presentation of unnecessary, cumulative evidence. The presiding Commission member may issue a prehearing order ruling on the issues addressed at the prehearing conference. Any exception taken to a prehearing order must be taken within 5 business days of the issuance of the prehearing order.

6.4 Ex Parte Communications – Commission hearings are subject to the rule prohibiting ex parte communications in 19A-15(b).

7.0 If the Commission concludes a violation of the Public Ethics Law occurred, the Commission may order a subject of a complaint to stop violating the ethics law. The Commission may seek a court of competent jurisdiction to order a person to stop violating the ethics law or to void an official action, under limited circumstances. The Commission may: direct staff to issue a citation; seek recovery for damages or the value of anything received by a person for certain violations; seek the imposition of disciplinary action by an appropriate agency; issue a public or private reprimand; and impose a fine which does not exceed statutory limits. The Commission may, at any time, refer to an appropriate prosecuting attorney any information that indicates that a criminal offense may have occurred.