If you recall, after Barry Waterman was appointed to the Planning Commission, a number of citizens and Ethics Matters joined in filing a complaint alleging that Mr. Waterman was in violation of the conflicts of interest provision (8-11 A-2) of the County's Ethics Code prohibiting certain officials, including members of the Planning Commission, from being employed by or having a financial interest in an entity that is subject to the authority of the governmental unit with which the member is affiliated - a provision required by the State.
The Ethics Commission found Mr. Waterman in violation of Section 8-11 A-2, and two others as well: 8-11 A-1 (prohibiting acting on behalf of the County on a matter that would have a direct impact on them or a family member or a business entity in which they have a financial interest); and 8-11 A-7 (intentional misuse of prestige of office or confidential information for their own private gain or that of another).
The Ethics Commission's remedy for all three violations was to issue a cease and desist order of recusal from matters before the Planning Commission
that have a direct financial impact on him, his
family or a business entity in which he
or a family member has an interest.
t specifically required him to cease and desist from participating in matters in regarding Wheatlands and the Queenstown Comprehensive Plan as well as the sewer going down Route 8.Mr.
appealed the decision of the Ethics Commission
to the Circuit Court.
The Circuit Court affirmed the Ethics Commission's decision that Mr. Waterman
was in violation of the conflicts provision 8-11 A-2, and it affirmed the Commission's order to "cease and desist in any activity as a member of the Queen Anne's County Planning Commission
that relates to the Queenstown Comprehensive Plan."
The Circuit Court further ruled that the Ethics Commission's finding of violations of 8-11 A-1 and -7 and its remedy of a cease and desist order for potential conflicts "that may never come to fruition", like the sewer down Route 8 (where Mr. Waterman
family own numerous lots) or other issues presenting possible conflicts that had not yet come before the Planning Commission
, were not "appropriate.
Accordingly, the Court reversed the Ethics Commission's decision as to violations of 8-11 A-1 and -7.
The Court's rationale for its decision stressed that "the Ethics Code is absolutely essential to our system of government", and a "violation" of it can be either an "act" or it can simply be "descriptive" of a status like having a conflict.
According to the Court, the Ethics Commission
rightly concluded that Mr. Waterman
violates 8-11 A-2 just by being on the Planning Commission
while having a financial interest in developing Wheatlands, but that it erred in finding violations of the other two provisions, which "require affirmative acts, not passive ones."
In sum, the Court upheld the finding of the Ethics Commission
that Mr. Waterman
, as a member of the Planning Commission
, is in violation of the County Ethics Code due to his
having a financial interest in a business entity that is subject to the authority of the Planning Commission
, and it upheld the Ethics Commission's remedy for this violation of recusal from anything to do with the Queenstown Comprehensive Plan.
Court also ruled, however, that the Ethics Commission
could not find him in violation of the Ethics Code and order him to "cease and desist" from actions that had not yet occurred.
In response to the Ethics Commission's Complaint Opinion and Order
issued this past December In the matter of Barry Waterman
(Case 10-01), Mr. Waterman
filed a Petition for Judicial Review on January 4, 2011 with the Queen Anne's County Circuit Court.
Attorney Jeffrey Thompson is representing Mr. Waterman.
To date, no brief has been filed by Mr. Thompson, so we do not know the grounds of Mr. Waterman's
ETHICS COMMISSION ISSUES OPINION IN COMPLAINT AGAINST BARRY WATERMAN
On December 6, the Queen Anne's County Ethics Commission issued its opinion on a complaint brought in February 2010 by a nine citizens and Ethics Matters alleging that Barry Waterman's "historic and current real estate activities in Queen Anne's County present actual and/or apparent conflicts of interest with his service on the QACPC (Planning Commission)."The Ethics Commission found Mr. Waterman has conflicts of interest in violation of the Ethics Law: "Respondent's and his immediate family members' financial interests in certain business entities whose activities include residential and commercial real estate brokering, consulting, development and construction projects, and investments that implicate the jurisdiction and responsibility of the QACPC, present actual and apparent conflicts of interest in violation of Section 8-11.
(1) (2) and (7), Ethics Law."
Recusal in Two Matters and in Other Decisions
Stating that Mr. Waterman
wife, parents or entities in which they have a financial interest own approximately 45 parcels in Queen Anne's County
, the Ethics Commission
ordered Mr. Waterman
to recuse himself in two matters that are currently within the scope of discussion and review by the Planning Commission
, namely, the Queenstown Comprehensive Plan and issues related to sewer along route 8 on Kent Island.
The Ethics Commission
further stated that land-use decisions by the Planning Commission
that do not directly involve properties owned by Mr. Waterman
family or their financial entities nevertheless can set precedents that could affect the value of Mr. Waterman's properties.
To remedy these potential conflicts, the Commission ordered Mr. Waterman to "cease and desist, by recusing himself from any discussion, any decision or any activity on any other matter before the Queen Anne's County Planning Commission . . . which will have, or reasonably could be believed by an informed member of the public to have, a direct financial impact, as distinguished from the public generally, on Respondent or a member of his family or on a business in which he or a member of his family has an interest."
Recusal Involving "Prestige of Office" and Confidentiality
The Commission also ordered Mr. Waterman to recuse himself from any discussion, decision, or any other activity in which an informed member of the public reasonably could believe that he used the prestige of his office or confidential information acquired in that office for his or others' personal gain.
Recusal Challenges for Mr. Waterman
as a Member of the Planning Commission
The Ethics Commission
observed that "the scale of Respondent's
property ownership in the area, as well as that of other family members, dramatically multiplies the financial interests and, thus, is meaningfully distinct from someone owning a single built-out parcel as a residence."
Further, "the appearance of a conflict of interest can be cured by recusal only if that remedy is invoked by Respondent
in a generous fashion to a situation in which an informed member of the public could reasonably reach this conclusion - whether or not Respondent
himself believes the conclusion is reasonable."
The Ethics Commission
stated that"...if recusal is to be an adequate remedy, it is imperative that Respondent
Waterman] remains constantly vigilant and sensitive to both the actual and apparent conflicts of interest as to the groups of properties that may be inherent in ANY particular land-use question that comes before the QACPC
The complaint was filed by nine citizens and Ethics Matters following the appointment to the Planning Commission
of Barry Waterman, notwithstanding the Ethics Commission's advisory opinion (10-01) that Mr. Waterman's
service on the Planning Commission
would be a violation of the Ethics Law.
In their complaint, the citizens and Ethics Matters noted Mr. Waterman's
conflicts of interest and asked for a strict interpretation of the section of the Ethics Law that prohibits holding conflicting financial interests while serving on the Planning Commission
.Citing a "recognition of the need for citizens possessing technical knowledge to serve on the Planning Commission
," the Ethics Commission
noted that " with a rigorous application of the Ethics Law to each decision in which Respondent
participates and recusal where appropriate to prevent the appearance of, or actual, conflict of interest, Respondent
may continue to serve on Planning Commission
It sounds like the public's trust is not assured but will have to be protected by vigilant citizens and Planning Commission
members during Mr. Waterman's
tenure on the Planning Commission
has filed a request to the Ethics Commission
for clarification of what the Commission understands to be required of the respondent when recusal is necessary.
complete opinion in this complaint, Opinion 10-01,