Did Marc Elrich Break the Ethics Law?

The Montgomery County Attorney is currently reviewing whether Council Member Marc Elrich broke the county’s ethics law when he submitted an affidavit as part of an application for a restraining order to stop the Fillmore project.

Section 19A-14(g) of the County Code states the following:

(1) A public employee must not with respect to a particular matter represent another person, or provide advice to another person that would qualify as an expert opinion in a court, if:

(A) a County agency or the County is a party to the matter and the person being assisted has a position adverse to the County agency or the County; or

(B) the County agency or the County has a direct and substantial interest in the matter that is adverse to the interests of the person being assisted.

(2) This subsection does not apply to a public employee who renders assistance to:

(A) another public employee if the matter involves a personnel action;

(B) a member of the public employee’s immediate family if the public employee renders the assistance without compensation; or

(C) a person for whom the public employee serves as a guardian, trustee or other personal fiduciary.

(3) This subsection does not apply to:

(A) a public employee while carrying out the employee’s official duties; or

(B) a member of a board, committee or commission if:

(i) the member is not compensated by the County;

(ii) the matter does not relate to the responsibilities of the board, committee or commission; and

(iii) the board, committee or commission solely performs an advisory function.

(4) In this subsection "represent" means to act on behalf of another person, and includes acting as an agent or attorney for the other person. (1990 L.M.C., ch. 21, § 1; 1994 L.M.C., ch. 25, § 1; 1997 L.M.C., ch. 37, §1.)

Seth Hurwitz (owner of the 9:30 club) and his company, IMP Inc., filed suit against the Comptroller, the the state’s Secretary of Management and Budget and the Governor to block construction of the Fillmore on 6/16/10 (Anne Arundel Circuit Court, Case No. 02C10153243). On 8/31/10, Hurwitz and IMP added County Executive Ike Leggett and the county’s Director of Procurement to the suit and, on the same day, filed an application for a Temporary Restraining Order to prevent the groundbreaking. Elrich’s affidavit was filed as part of that application. In the affidavit, Elrich stated his opinion that “The County Administration has not sought or received an additional appropriation from the Montgomery County Council to fund the Silver Spring music hall cost overrun. The County Administration must seek such an appropriation from the Montgomery County Council if it intends to use Montgomery County funds to pay for the cost overrun.” Hurwitz and IMP relied on Elrich’s opinion in their application for the Temporary Restraining Order, which was rejected by the presiding judge.

The suit is clearly adverse to Montgomery County since the county government is listed as a defendant. Elrich clearly offered advice, if not an expert opinion, that was used by the plaintiffs in the course of their lawsuit against the county.

Accordingly, the County Attorney is now reviewing whether Elrich’s conduct violated county law. If it did, that may be fertile grounds for an ethics complaint.