A Frederick County commissioner can violate a ruling from the county’s Ethics Commission and suffer no more than a fleeting discomfort from an accusatory headline.
Unless a majority of fellow commissioners directs the county attorney to take the matter to court, or approves the expense of an outside lawyer, there is little to no punishment for violating the conflict of interest provision in the county's ethics law.
The Gazette reported on May 10 that County Commissioner Kirby Delauter (R) chose not to abide by an ethics ruling issued in March 2011 because of “extreme procedural irregularities” in the process of that ruling. The March ruling was the third by the ethics commission, and barred Delauter and his construction company — W.F. Delauter & Son — from doing work in the county that had to be inspected by county-employed inspectors.
Delauter has since taken on work in a pilot program with private inspectors and elsewhere that requires oversight by county employees, but there’s little anyone can do to determine if he is indeed violating the county’s ethics ordinance.
Karl Bickel, chairman of the Frederick County Ethics Commission whose term ends June 30, said Tuesday if the facts show Delauter has ignored the commission’s opinion, the commission should find him in violation.
“The commission needs to take the action necessary to get the matter before the court so that a final determination can be made,” Bickel said.
If a county commissioner has not adhered to a ruling by the ethics commission, the commission can ask the county attorney to seek the court's opinion, but the ethics ordinance doesn’t spell out how that’s supposed to happen.
“The ordinance does not directly answer [the] question ... about the process to be followed by the county attorney,” said Linda Thall, county attorney who handles ethics issues.
But, Thall said, the ethics commission can hire an outside attorney if a matter coming before the commission involves a member of the board of county commissioners.
“To me, this suggests that the Board’s permission to seek relief in the Circuit Court may not be an absolute requirement,” Thall said in an email.
Maybe not directly, but the commissioners must still approve the expense of an outside attorney because the ethics commission has no budget, said Commissioners’ President Blaine R. Young (R).
The Frederick County State’s Attorney’s Office has no jurisdiction over ethics complaints, said State’s Attorney Charlie Smith (R), and the State Ethics Commission has no authority on how the county applies its ethics laws, only that they have them in place.
Former county commissioner John “Lennie” Thompson, who has championed ethics reform, said, “It would seem that ... the State Ethics Commission [is] OK with Frederick County's ‘fox guarding the hen house’ approach to enforcement of the County's Ethics Ordinance.”
The administration of the local laws, including enforcement, is entrusted to the local governments, said Michael Lord, executive director of the State Ethics Commission. The state commission approved state-mandated changes to the county’s ethics laws in December 2011 — primarily dealing with conflict of interest, financial disclosure and lobbying provisions. The Public Ethics Law requires local governments to enact conflict of interest and financial disclosure provisions that are “equivalent to, or exceed” the requirements of the law for elected local officials, and “similar” to the requirements of the law for other local officials, Lord said.
The county’s old ordinance contained a criminal sanction where violations could be considered a misdemeanor — subject to a fine of as much as $1,000, imprisonment of as long as six months or both.
“The third sanction was criminal and would occur in the event of a referral by the commission to the State’s Attorney, State Prosecutor or the Office of the Attorney General for investigation and prosecution,” Thall said.
When the county changed its ethics laws to reflect state law, the county removed any criminal sanctions for county officials and employees for violations of the ethics ordinance, but criminal sanctions are available against lobbyists.
“The lack of criminal sanctions leaves the State’s Attorney, the Maryland State Prosecutor and the citizenry with no ability to enforce willful and knowing violations of the ethics ordinance by one or more BOCC standards," Thompson said.
The state has not had criminal sanctions for violations of conflict of interest laws since the mid-1970s, according to Jim Cabezas, chief investigator for the State Prosecutor's Office. Before the change, it was considered a misdemeanor. As a result of decriminalization of conflict of interest, Cabezas said the state established the State Ethics Commission.
Sanctions vary among jurisdictions in the state, however, and some still treat a violation of conflict of interest laws as a misdemeanor, he said.
"If an elected official gets an opinion, maybe it's right, maybe it's wrong, and they decide to test the law," Cabezas said, "the local ethics commission could petition the court to get an order of compliance.”
Ultimately, it is the local ethics commissions that have the power to push the issue, and there is no state agency or office that can interfere.
Thompson, an attorney, authored tighter restrictions to the county’s ethics laws in 2007 when he was in office to prevent commissioners from being unfairly influenced in planning and zoning matters. The law Thompson wrote was diluted, however, in the version passed by the Maryland General Assembly for Frederick County.
In general, the law prohibits contributions to members of the board of county commissioners by applicants with interests in property that is the subject of certain pending zoning and planning applications to the board. Commissioners are required to report any outside communications between themselves and anyone with those pending applications. But the reporting requirements are thin, and ultimately it is up to the commissioners to police themselves.
State ethics laws might have been a model for the county, but the state itself is no role model when it comes to integrity, according to the Pew Center. Maryland received failing grades in executive, judicial and legislative accountability and ethics enforcement agencies, among other ethics-related categories in the Center’s March 2012 investigative report, State of Integrity.
Maryland ranked 40th out of the 50 states, and received an overall grade of D-.