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Advertise on the Tentacle

April 19, 2011

Unintended Consequences Abound Again

Farrell Keough

The current Ethics Commission Advisory Opinion – commonly known as the decision affecting the actions of Frederick County Commissioner Kirby Delauter – is not only the worst of “behind closed doors” bureaucratic actions, but negatively affects every resident of Frederick County!


Katherine Heerbrandt wrote an excellent article in The Gazette on the basics of this decision, but there is much more information behind the scenes that should be disclosed.


In short, “new information” was presented which altered this advisory opinion that was based on a “closed door” meeting with Jan Gardner – the previous president of the Frederick Board of County Commissioners, a member of the boards which appointed everyone on the current Ethics Commission, and the current state director for U.S. Sen. Barbara Mikulski. In short, Ms. Gardner is a high-power political insider – not just a regular citizen.


So, why is this controversial? The main reason is the “new information,” as well as the discussion about this third advisory opinion is not available to the public! (Yes, this is the third time this one issue has been altered.


Why is this information not available to the public? In short, Linda Thall, senior assistant county attorney, determined that – if the public is allowed to see this information – it would harm “candid discussion” among the members of the Ethics Commission. She even went so far as to claim “executive privilege” on behalf of the Ethics Commission – similar to the rationale used by President Richard Nixon.


Consider that rational – appointed members of this commission can make decisions which affect all Frederick County citizens, but they are unaccountable for their actions and decisions. No one on this Ethics Commission was pressed into service – they requested appointment. Hence, the attempt to hide the discussion which determined this advisory opinion should be available to all citizens – especially when the consequences affect all citizens of Frederick County. “Candid discussion” is part and parcel of requesting appointment to this commission – it is not a rational to hide such far reaching decisions.


Let’s consider what took place. The first advisory opinion basically stated that a sitting commissioner cannot be awarded a county contract. The rational for this decision was based on “the appearance of impropriety” as a commissioner is the defacto superior of the county employees who would inspect the job. Unfortunately, this first advisory opinion went well beyond this ruling, finding further that even when no public money is involved, a commissioner still cannot perform work in Frederick County.


After an appeal and a full hearing, a second advisory opinion was determined. This opinion recognized that projects funded solely with private money would pose no conflict and all parties agreed on this decision.


Then, the “closed doors” third advisory opinion was rendered. It is this final decision in which “new information” was referenced, but the public is not privy to these “facts.” Neither the state’s Court of Appeals nor the Supreme Court of The United States can make a decision without disclosing the presentations given during their decision process, yet this unaccountable Ethics Commission is free to hide information and make a decision which affects all Frederick County citizens!


Two issues seem to be influencing this third opinion: the potential for a sitting commissioner to influence a county inspector, (remember this point) and the implication, (from emails sent by Jan Gardner) that a county contract could be slipped through which benefits an elected commissioner.


As to the second point, all county contracts are fully vetted by county staff. Hence, this rational assumes all county staff, (including the legal staff) must somehow be in on the “deal.” While conspiracy theories make for great movies, getting that many people to somehow buy into an unethical action is much more difficult – if not impossible. A request to have the Ethics Commission review such an instance can be done anonymously; hence the fear of retribution is virtually non-existent.


As to the former issue, Gary Hessong, a Frederick County division director, testified before the Ethics Commission that a single county commissioner cannot influence the decision of an inspector or other county employee. This is very important. After a telephone discussion with Karl Bickel, (a member of the Ethics Commission who signed off as chairman in this third decision), it was clear his perception was that Mr. Hessong did not present accurate testimony!


Without recalling Mr. Hessong to testify, at least one member of this Ethics Commission made a determination that his presentation was false! In other words, the second Ethics Commission Advisory Opinion held Mr. Hessong presented accurate and truthful information, but during the third “closed doors” testimony (in which Mr. Hessong did not testify), it was somehow determined that Mr. Hessong made false statements! Consider if these actions happened to you – you tell a commission what you believe to be fact and truth, yet they later determine you made false statements – and you have no recourse to re-establish your good name!


Finally, the “closed doors” decision by this Ethics Committee affects all Frederick citizens. An elected commissioner cannot deal with any situation in which a county inspector could be unduly influenced.


Hence, if a citizen is elected to the Board of County Commissioners and has damage to their driveway, they must step down from this elected position or wait four years to make the necessary repairs. You see, even if you hire Driveways-R-Us to do the work, it is your property on which the inspector will be called to review. This means you could have undue influence on the inspector as she/he is a county employee.


If you believe this is a far-fetched scenario, consider the myriad legal decisions we have seen – Kelo v. New London (where the government can “take” your land through eminent domain if they believe they can make more in taxes) and Marbury v Madison (where in the Supreme Court usurped its authority to not only render the constitutionality of a law, but create the remedy rather than leave that to the Legislative Branch).


While this Ethics Commission Advisory Opinion garners strong feelings and beliefs on both sides of the issue, take the time to consider how this was completed without transparency or due process. That alone should give rise to this advisory opinion being tossed out.


But, most importantly, consider how short-sighted this decision is and the unintended consequences. This decision harms all Frederick County citizens as it limits those who can offer public service to select few – something we voted against due to the conduct of the last Board of County Commissioners.



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