From the Desk of
County Commissioner Kirby Delauter

(5/11) The definition of Ethics as defined in the Webster’s dictionary is " The moral principles that govern a person’s or group’s behavior". As many of you know I have an issue that was resolved but is now ongoing with the Frederick County Ethics Commission. This started when I was elected Frederick County Commissioner December 2nd, 2010. I immediately addressed the Ethics Commission and asked for an opinion as to whether or not I could bid / perform County Capital Improvement projects, since my company has a long history of doing so in the past. Capital Improvement Projects are projects that are "taxpayer" funded. These are sealed bids that go directly to the purchasing department and are opened and read aloud in an open setting. The ethical question I posed was "Was I able to continue bidding on these types of taxpayer funded projects?"

The Commission interviewed me, along with many County Department Heads and we discussed if my request could be honored. There were several variations discussed as well as private contracts that do not involve taxpayer funds. The County system is set up so that if a private person, or Developer hires a contractor to do County sewer or water work, the Contractor must enter into a separate contract with the County for the sewer / water portion of the work. This then is considered a "County Contract" but is not taxpayer funded; it is funded by the private owner. This is where it gets interesting.

The Ethics Commission in their first ruling, gave an advisory opinion that my company could not do County CIP ( Capital Improvement Projects ) and we could not bid any private developer or privately owned work as well, even though no County tax dollars were being used to fund these projects. They also added that I could not be involved with anything privately funded that involved County inspections. I immediately appealed that decision and was granted a second hearing.

During the second hearing, my Attorney addressed both issues of bidding and or performing CIP taxpayer funded work and the private developer funded work. We agreed that CIP taxpayer funded work would not be bid upon by my company if for no other reason, just the appearance of partiality may exist. We strongly refuted the private developer funded portion of their advisory opinion.

As my Attorney laid out the list of people they have now excluded from running for public office in Frederick County, the list includes anyone that is inspected by the County, which is virtually all of us in one form or another. Basically if you own a business, or have any inspections whatsoever in your home, you can not run for County office, according to the broad opinion they provided in my case. Once the Ethics Commission heard the evidence presented by our Attorney, they reversed course and rescinded the privately funded portion of their first ruling and allowed my company to perform privately funded work within the County.

Now, it only gets better from here. In mid March, I received an email that stated the Ethics Commission met again, for a third time. This meeting took place in a closed session, without notice to myself or my Attorney. In this third meeting, the Ethics Commission went well beyond my inquiry and ruled further that my company could not enter into contracts for any construction work in Frederick County, even if the work was funded entirely by private property owners, with no public money involved. The fact that this decision was reached with no notice to myself or my Attorney, and was based on evidence apparently presented to the Ethics Commission that neither I, or my Attorney were made aware of and did not have the opportunity to refute, which is the violation of due process about which we have complained.

Per my Attorney, "the Constitutions of both the United States and the State of Maryland require that before a governmental agency can hold a hearing which concerns the personal or property interests of a citizen, that person must be provided prior notice of the hearing and the opportunity to participate. This is a fundamental tenet of the Bill of Rights. These constitutional rights are not forfeited by one merely because he or she has won an election. The Ethics Commission owes the same duties of fairness and due process to Commissioner Delauter as they do to anyone who comes under their purview, whether those people agree politically with opponents of Commissioner Delauter or not".

In closing all I can say is that per the definition that is given of Ethics from Webster’s dictionary at the beginning of this article, " The moral principles that govern a person’s or group’s behavior", maybe the Frederick County Ethics Commission should incorporate that into their mission so in the future other people will have the opportunity to defend their rights without having a rogue Commission decide their fate behind closed doors and without due process that is guaranteed by our Bill of Rights.

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