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As Long as We Remember...

April 21, 2011

Puzzling Decision Amid Undue Influence

Blaine R. Young

I have been more than a casual observer of the recent actions of the Frederick County Ethics Commission concerning Commissioner Kirby Delauter.


Like many people with whom I have spoken over the last few weeks, I am shocked that a duly-appointed county agency, with a very important and solemn range of duties, could act in such a cavalier and arrogant manner.


For those of you who haven’t kept up with it on a day-to-day basis, here’s a brief summary. Almost immediately after the election in November, Commissioner-elect Delauter sent a written request to the county’s Ethics Commission seeking an advisory opinion on one issue. He inquired whether his company, which does road construction, utility installation and other site work primarily in Frederick County, could continue to submit formal bids on county-funded construction projects. He then went to an Ethics Commission meeting when his request was discussed.


A few weeks later the Ethics Commission ruled that once Mr. Delauter was sworn in, his company should no longer bid on county-funded projects. I know from having spoken to Mr. Delauter that this was no surprise, and he was prepared to accept that decision.


However, the Ethics Commission did not stop there. They went on to delve into matters on which an opinion had not been requested. The commission ruled that Mr. Delauter’s company could not perform any construction work in Frederick County, even when paid for entirely by private property owners, if that work would be inspected by a county inspector.


Needless to say, Mr. Delauter was more than just a little surprised when he read this. He had never asked the question, so he certainly had no reason to expect the answer.


In response to this, Mr. Delauter engaged lawyers, who, in turn, requested reconsideration. I attended the next meeting of the Ethics Commission where Mr. Delauter and his attorneys presented what I thought was a very compelling case as to why the Ethics Commission should rethink their ruling on privately funded work. Everyone else in the room was permitted to say whatever they had on their minds concerning the subject. I thought it was a very fair proceeding; and I thought the Ethics Commission listened intently. The committee even had its own attorney advising them throughout the hearing.


A few days after this hearing, the Ethics Commission issued a new opinion stating that Mr. Delauter’s company could continue to work on private projects in Frederick County provided no public money was involved. His counsel advised the attorney for the Ethics Commission that Mr. Delauter accepted this opinion, and further accepted the original opinion that he would not bid on county-funded projects. Everyone, with apparently one exception, thought that the matter was now closed.


As we know now, the matter was not closed. Without any notice to Mr. Delauter that his case was back on the agenda, or being discussed by the Ethics Commission, the committee convened a meeting at which they heard testimony from a former county commissioner. Shortly after this meeting, which Mr. Delauter did not even know was being held, the Ethics Commission issued yet another revised opinion, completely reversing their previous opinion and holding that Commissioner Delauter’s company could do no work in Frederick County whatsoever, if that work would ultimately be inspected by a county inspector.


I want everyone to understand what the impact would be of this third opinion. If you wanted to hire W.F. Delauter & Son, Inc., to install a driveway at your house, because the bid was acceptable to you, and you were paying for it with your own money, that firm would not be allowed to install the driveway because it would be subject to a county inspection. How is the public interest being served by this?


Not only that, but the Ethics Commission’s decision would put Mr. Delauter in the position of having to make a choice between going out of business or resigning from office.


The point was made at the hearing by his attorneys that there are other ways to protect the public interest. Mr. Delauter agreed to recuse himself from any and all matters which could in any way be perceived to create a conflict between his private business and his government duties. The Ethics Commission initially agreed with this position, but for some reason – after speaking with a former county commissioner – changed their view.


Also, if the Ethics Commission’s decision is allowed to stand, no electrician, plumber, architect, engineer, surveyor, builder, or owner of any commercial or residential rental properties in Frederick County would be eligible to run for county commissioner, as their work is often subject to inspection by county inspectors. The Ethics Commission’s decision would have far reaching ramifications and would preclude thousands of hard working citizens from ever running for county office.


I’ll leave the legal arguments to Mr. Delauter’s attorneys. From a practical and a governmental standpoint, the actions of the Ethics Commission are extremely troublesome.


As most will recall, Commissioners Delauter, Billy Shreve, C. Paul Smith and I ran together as a ticket. We had a common message of reducing government waste and spending, reining in government regulations and fees, and watching out for the taxpayer. We stuck to our message and vowed that – if elected – we would pursue policies consistent with what we had promised on the campaign trail.


The four of us were elected, and we have done our best to keep our word. We knew that our political opponents would be far less than happy with the results of the election, and would do everything they could to thwart our agenda. And we knew that these opponents included not only certain other candidates who were defeated in the election, but also those who had campaigned on their behalf.


We had no idea, however, how far some of them would go in their effort to overturn the results of the 2010 election. Over 150,000 votes were cast for Commissioners Delauter, Shreve and Smith and me. Apparently one former county commissioner, who chose not to stand for re-election, is not pleased with the choice made by county voters.


I view the current activities of political opponents of Commissioner Delauter to be nothing more than a blatant effort to undo the results of the 2010 election. This is a shame; and that the former commissioner, who is behind this effort, should be embarrassed. Although the former commissioner certainly is entitled to any opinion and has expressed it frequently in the media, the question must be asked whether secret, private meeting with the Ethics Commission constitutes undue influence, particularly because that commissioner was on the Boards of County Commissioners that appointed each and every current member of the Ethics Commission. And I cannot help but wonder how that commissioner’s current employer feels about the activities in this matter.


For the record, I am standing squarely behind County Commissioner Delauter. He has been wronged, and I will do anything I can to assist him and to ensure that the voters of Frederick County will have him on the Board of County Commissioners for the four years for which he was elected.


The voice of the people of this county was heard last November, and I will not stand silently by while one person attempts to stifle those voices and thwart the will of the electorate.


I give you my word.


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