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:
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.
(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.)
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.
Friday, September 03, 2010
Did Marc Elrich Break the Ethics Law?
Forehand Slams Kagan on Lobbyist Gifts
Senator Jennie Forehand (D-17) has responded to three negative mailers from challenger Cheryl Kagan with this piece on Kagan's acceptance of lobbyists' gifts and her vote against a 2001 bill on lobbying reform.
Forehand brought up this issue at a recent candidate forum in Rockville. Here is how Kagan answered it.
OK guys, so we are asking you all for a favor. Remember that tragically premature post we wrote calling the District 17 Senate race the "classiest" in MoCo? Can you just forget that we wrote that? Pretty please?
Saturday, March 06, 2010
Monday, January 04, 2010
The Next Big Maryland Scandal?
State prosecutors are currently running wild in Pennsylvania in pursuit of one of the biggest political scandals in that state’s recent history. Their counterparts just across their southern border have plenty of places to look if they ever become interested in the same issue.
The Associated Press recently reported that Pennsylvania Attorney General Tom Corbett has charged 25 people, including two former House Speakers, with “illegally using taxpayer-paid employees to perform campaign work.” The article said this about former Speaker and current House majority whip Bill DeWeese:According to Mr. Corbett, Mr. DeWeese is said to have employed a legislative staff member in the Capitol from 2001 to 2007 primarily to raise campaign money. Kevin Sidella testified under a grant of immunity that he raised millions of dollars for Mr. DeWeese's political campaigns while being paid by taxpayers, Mr. Corbett said.
This conduct is an obvious abuse of state ethics laws prohibiting government employees from engaging in political work on government time. But the potential for this is not limited to Pennsylvania as Maryland is full of political supporters on government payrolls.
Sidella recounted an occasion when he raised concerns to DeWeese about the political nature of his own work, the grand jury wrote. DeWeese responded that “our saving grace is that everyone does it.”
The grand jury report also said Mr. DeWeese’s former chief of staff, Mike Manzo, testified that Mr. DeWeese had no campaign apparatus outside his state-paid staff. The report said his employees circulated nominating petitions, sent out campaign mailings, organized campaign events and canvassed door to door, often during the workday and from legislative offices.
Remember former Marilyn Praisner staffer Joy Nurmi? She was caught by the Post meeting with Don Praisner’s campaign manager during work hours and her private phone number and email address were listed on Mr. Praisner’s campaign website. She is far from alone. Consider these examples from Rockville and Annapolis:
One office holder’s Chief of Staff is that person’s campaign Chair and political strategist. One legislator’s Chief of Staff also serves as campaign Treasurer, while another’s office manager is also that person’s Treasurer. Another office holder hired a campaign volunteer as a legislative aide. Still another politician has referred to an office staffer as a “Finance Director” in a recent fundraising email. More than one politician’s office is primarily staffed by former campaign workers and volunteers. And at least one statewide politician rewarded a campaign volunteer with a high-ranking staff position right after winning election.
Finally, one County Council staffer who is running for the House of Delegates called a press conference on a council work day to discuss matters connected to her candidacy.
Why are we not naming more names? Some of the above individuals are no doubt strictly segregating their government and political activities in compliance with the law. But others may not be so scrupulous. What is clear is that both Rockville and Annapolis are awash with campaign officers, staffers, volunteers and other political supporters on government payrolls. Without an investigation, there is no way to tell what they are really doing on the public’s dime.
When there’s this much smoke, there’s bound to be fire somewhere. If Maryland authorities ever choose to look into this, how many politicians will get burned?
Monday, November 23, 2009
Dana and Duchy Take on the KGB (Updated)
District 18 Delegate candidate and County Council staffer Dana Beyer has accused the county’s Ethics Commission of discriminating against her because of her transgender status and attempting to harm her political career. Her employer, Duchy Trachtenberg, has even compared the commission to the KGB. Are the heirs to the infamous Soviet spy empire really out to get them?
This issue goes back to late 2007, when the County Council unanimously passed a bill banning discrimination against transgender individuals that was authored by Duchy Trachtenberg, who is Beyer’s employer. The bill’s opponents, most of whom were organized in a group called Citizens for a Responsible Government (CRG), launched a campaign to gather signatures for a referendum to overturn the bill. The Montgomery County Board of Elections originally ruled that CRG gathered enough signatures to justify a referendum, but their finding was overturned by the courts. The transgender protection law is in effect today.
Beyer was one of several people that traveled the county to monitor CRG’s gathering of signatures in early 2008. Long-time readers will recall that we wrote about one encounter between Beyer and CRG volunteers that is relevant to the events now under discussion today. We asked Beyer what happened at the time:Beyer, an aide to County Council Member Duchy Trachtenberg, Vice-President of Equality Maryland and former candidate for District 18 Delegate, told her side of the story to this blog. She said she encountered CRG’s petition collectors on Primary Election Day, the following weekend and President’s Day (2/18), the date of the incident in question. At the Bethesda Giant, she entered the store, told the manager that the petition collectors were violating store policy (which allows the group to collect signatures on only one weekend per month), and left soon after making the statements to the group shown on the video.
Here is the video that was taken by CRG of the incident:
After emerging from the grocery store, Beyer told the signature collectors, “An email went out; you’re going to be asked to leave. Any petitions gathered today are illegal.”
Why is this a problem? As a County Council employee, Beyer is subject to the county’s ethics code. County Code Chapter 19A-4(m) defines a “public employee” as including “the County Executive and each member of the County Council” along with “any person employed by a County agency, including the director of the agency.” No exemptions appear for council staff or any other employees operating off-the-clock. Even non-paid board and commission members are treated as employees. County Code Chapter 19A-14(e) states, “A public employee must not intimidate, threaten, coerce or discriminate against any person for the purpose of interfering with that person’s freedom to engage in political activity.”
The video by itself does not prove that Beyer violated the ethics code, but it does chronicle an incident that merits scrutiny. A reasonable person could believe that Beyer intended to discourage CRG’s volunteers from gathering signatures by her unsolicited statement to them that they were engaged in “illegal” activities. That judgment most appropriately belongs to police officers rather than County Council staffers. When CRG later filed an ethics complaint against Beyer, the video would have been available to the commission to demonstrate Beyer’s methods of dealing with the signature gatherers.
As it turns out, the video was not the decisive factor in the investigation. The Ethics Commission found enough evidence of misconduct by Beyer at another grocery store on a different day to justify holding a hearing on the matter. The commission has no power to punish offenders; it may only ask the County Attorney to take its findings to the courts. Beyer blasted the commission in a press conference and filed a complaint against them with the county’s Human Rights Commission on the following grounds:
1. The commission allegedly treated her unfairly by having investigators search her work computer without her knowledge. “You can't run a government like this,” Beyer said. “If this were a murder investigation or if it was a major multimillion fraud investigation, I could understand that. But for this?” Trachtenberg, said, “The use of KGB-type tactics to undermine the function of my council office is chilling.” According to the Examiner, County Council staff director Steve Farber was not notified of the computer search, which turned up nothing.
2. The commission allegedly leaked the existence of its investigation and its findings to unspecified individuals, a violation of the confidentiality requirement for ethics investigations.
3. Beyer told the Gazette, “The Ethics Commission has made a blatant political attack on me, because I am the first openly transgender government staffer in Maryland.”
4. The commission was allegedly motivated to harm Beyer’s political career. Beyer finished fifth in an eight-person District 18 Delegate race in 2006 and ran unsuccessfully for an appointment to replace Delegate Jane Lawton after she passed away in 2007. Beyer is currently running for Delegate in 2010.
5. Trachtenberg was another target. Beyer said, “I’m a means to an end, and that’s to destroy my boss politically.”
Your author has called out a LOT of politicians and bureaucrats over the last two years. Our rule is that big allegations require big evidence. Let’s examine each of Beyer’s charges more closely.
1. Records Access
Beyer claims ethics investigators secretly searched her work computer. If that is true, Beyer’s “rights” were not infringed since neither elected officials nor public employees have any private property rights over public records in their custody. The vast majority of those records are discoverable under Maryland’s Public Information Act. We saw the dangers of record access problems first-hand on this blog, when the Maryland Transportation Authority tipped off the state legislature on our public information request concerning free E-ZPasses for state legislators, potentially allowing some users to escape detection. Beyer also questions whether the Executive Branch should be able to conduct secret searches of County Council records. That is a matter between the Executive and the Council Members rather than a council staffer. Overall, the opinion of Beyer and Trachtenberg that inquiry into public records is equivalent to any actions undertaken by the KGB reflects basic disrespect for the concept of open government.
2. Leaks
If the commission leaked the investigation and/or its findings, it did a poor job of it. No media outlet or blog reported on this matter prior to Beyer’s press conference. Your author has MANY eyes and ears in the council building yet had no knowledge of it. The only person besides Beyer claiming that there was a leak is Trachtenberg, who would have known of the investigation through Beyer herself. The commission also interviewed several witnesses to Beyer’s behavior with CRG activists, all of whom would have had reason to believe that an investigation was underway as a result. Beyer has released no evidence of leaks at the moment. She only states her belief that leaks occurred.
3. Transgender Discrimination
Plaintiffs in discrimination cases often seek to prove animus, or overt and expressed hostility to members of a protected class, by the defendant. Beyer has presented no evidence of anti-transgender animus by any member of the Ethics Commission even though she alleges it. In fact, the video of her actions contains enough evidence to warrant scrutiny regardless of her gender status. Beyer’s theory appears to be that anyone who investigates her conduct is motivated by anti-transgender prejudice. That is far outside the scope and intent of the transgender protection law that she invokes.
4. Beyer’s Political Career
Only one member of the Ethics Commission lives in District 18: Antar C. Johnson, the chairman. He is a Democrat and made one $100 contribution to Ike Leggett on 8/5/06. Two members (Rafael Borras and Stuart Rick) are unaffiliated, one (Gilles Burger) is a Republican, and one other (Nina Weisbroth) is a Democrat. No members of the commission have ever contributed to any candidates in District 18. Weisbroth has contributed three times for a total of $175 to District 14 Delegate Anne Kaiser, an open lesbian and a heroine of the LGBT community. (Is Weisbroth the kind of person who would be logically suspected of anti-transgender bias?) There is no evidence that any commission members, much less a majority, are hostile to Beyer’s political candidacy.
5. Trachtenberg’s Political Career
Let’s remember the basic character of the Ethics Commission and its staff. Every member of the commission is appointed by the County Executive and confirmed by the County Council. The commission relies on staffers supplied by the Executive Branch. Its decisions are enforced, if at all, by action of the County Attorney, who reports to the Executive. In this case, the County Attorney actually conducted at least some of the investigation of Beyer on behalf of the commission.
Trachtenberg is closer to County Executive Ike Leggett than any other member of the County Council. When she ran in 2006, she sent a mailer featuring herself and Leggett all over the county. She endorsed Don Praisner and Ben Kramer in the District 4 special elections, both of whom were supported by Leggett, and worked to get both of them elected. She regularly accompanies Leggett at events around the county and is leaning heavily on his support to win a second term. Yet she is alleging that his Ethics Commission appointees, his County Attorney and his employees are using “KGB-type tactics” against her office. Any claim that Ike Leggett is a Soviet-style spymaster who dispatches minions to suppress Trachtenberg and Beyer is utterly preposterous and especially surprising coming from a woman who is depending on him for re-election.
The charges made by Beyer and Trachtenberg against the Ethics Commission and the County Executive’s staff are difficult to believe and, for the most part, collapse upon casual scrutiny. Their allegations’ unwarranted damage to the county’s reputation is exceeded only by their warranted damage to their own reputations. Hysteria and paranoia make for great press conferences and guaranteed coverage, but they are poor qualities in individuals performing public service.
Update: In a letter rich with unintended irony, Trachtenberg is now accusing the County Attorney of undertaking “a clandestine, and evidently unlawful, search of confidential files in the office of a sitting Councilmember. And I intend on getting to the bottom of this reckless abuse of authority.” She writes to him, “The people of Montgomery County have an expectation of transparent and ethical behavior on the part of all public servants. And they deserve no less.”
The irony here is that while Trachtenberg calls on the County Attorney to be transparent, her bone of contention is the scrutiny of public records in her possession. Those records, with very limited exceptions, are accessible to the citizenry under the state’s Public Information Act (PIA). Council Members and the County Executive answer PIA requests all the time. Is Trachtenberg saying that her records alone are confidential?
Disclosure: The author is the Treasurer of the District 18 Democratic Team. This post was written without the knowledge or sanction of any District 18 elected officials or candidates.
Monday, October 19, 2009
Fed Up in the Free State
Progressive Maryland and Common Cause are using the results of a recent poll to press their case for campaign finance reform. They certainly have some useful ammunition as the poll shows majority support for public financing. But the poll shows something else: a deep cynicism towards government. And more than that, it shows that the Democratic rank-and-file is extraordinarily suspicious of a state government run by their own party.
Consider the responses to the following questions divided by party affiliation.
“I am worried that large political contributions will prevent lawmakers in Annapolis from tackling the important issues facing Maryland today, like the recession, rising energy costs, reforming health care, and protecting the Chesapeake Bay.”
Percentage agreeing, strongly or somewhat:
Democrats: 78.2%
Republicans: 74.0%
Independents: 78.2%
Total: 76.9%
“Right now, would you say elected officials in Maryland are looking out for the needs of everyone, or are mostly concerned with the needs of those who pay for their campaigns?”
Percentage answering those who pay for their campaigns:
Democrats: 51.5%
Republicans: 66.4%
Independents: 54.5%
“Do you agree or disagree that lawmakers in Annapolis are more likely to vote the way their political contributors want them to vote, not how their constituents want them to vote?”
Percentage agreeing, strongly or somewhat, that lawmakers are more likely to vote for contributors:
Democrats: 64.2%
Republicans: 78.1%
Independents: 81.8%
“Do you agree or disagree that big campaign contributions have a corrupting influence on state lawmakers in Annapolis?”
Percentage agreeing, strongly or somewhat:
Democrats: 76.0%
Republicans: 81.5%
Independents: 72.8%
While Republicans and Independents may be more disillusioned than Democrats, the significant majorities of the latter who condemn a government controlled by their own party is striking. The poll’s advocates argue that campaign finance issues are a reason for that, and they are undoubtedly right. But such deep feelings are not explained by that reason alone.
Consider the following:
In Baltimore City, the headlines are regularly dominated by the coming corruption trials of Mayor Sheila Dixon and City Council Member Beverly Holton.
In Prince George’s County, senior Senators Ulysses Currie and Nathaniel Exum are targets of investigation. County Executive Jack Johnson has had a number of ethical and performance issues.
The residents of both Baltimore City and Prince George’s County have been victimized by poor schools and out-of-control crime for many years.
This blog has chronicled the problems of the Washington Suburban Sanitary Commission over and over.
Only weeks ago, Montgomery College had to oust its President for dubious credit card practices and an outstanding arrest warrant.
Baltimore County Council Member Sam Moxley was recently arrested for DUI after being involved in a four-car accident. Fellow County Council Member Kenneth Oliver plead guilty to campaign finance violations. Neither plans to resign.
Anne Arundel County Executive John Leopold has not shaken repeated scandals. (Leopold is the only Republican on this list.)
And who can forget Delegate Jon Cardin’s water-logged marriage proposal?
The one thing all of the above politicians share is that they are still in office. None of them has faced any real consequences. In fact, Senator Currie still chairs the powerful Senate and Budget Taxation Committee despite the fact that the Senate President himself accused him of not adhering to the ethics law. Mayor Dixon was treated like a conquering hero by Democrats at MACO. Politicians cling to perks like free E-ZPasses and squawk when the Post discusses whether or not they will return pay to the state. And while many insiders dismissed MACO as a non-story, roughly 20,000 page viewers swarmed into this blog to look at the pictures of the Governor’s staff carousing drunkenly at a supposedly “sober” event. (Until recently, this blog did not break 20,000 visitors over the course of an entire month.) That is a sign of growing discontent with government that is fed by the unethical, and sometimes criminal, behavior of its leaders.
The Democrats probably will not lose control of the statehouse or Government House over these issues. Their registration advantage is too great, the Republicans are too inept to compete and most voters blame not their own local representatives but rather “the system” instead. But the chances that voters will support structural limitations that chain up their government, including tax caps and term limits, are soaring. That is a terrible threat to the state. Consider the performance of Prince George’s County, which has both a tax cap and term limits, or of California, which has even more restrictions. That could be the future of Maryland and the legacy of today’s political leadership.
And what of Montgomery County? We are not immune to the roiling unhappiness of the masses. Robin Ficker is currently collecting signatures for a new charter amendment that would impose term limits on the County Executive and County Council. In this climate, it could very well pass with lots of support from the Democratic rank-and-file.
Friday, July 11, 2008
On Senator Currie and the Ethics of Office
The recent revelations of Senator Ulysses Currie’s relationship with Shoppers Food and Pharmacy may be the beginning of the fall of a man once widely thought to be an admirable public servant. But it is more than that: it is a warning about the kinds of conflicts that can happen in a citizen legislature.
Maryland, like most states, allows state legislators to hold outside employment. The General Assembly meets for three months each year (not including special sessions) and pays its members over $40,000 annually. Nevertheless, members of legislatures with similar configurations to Maryland’s report that they spend 70% of the equivalent of a full-time job on their legislative work. These positions are clearly time-consuming, even for rank-and-file members lacking Senator Currie’s responsibilities.
The benefit of a citizen legislature is that it allows members to bring significant expertise to their jobs. But there is a price: the potential for conflicts between a legislator’s public and private roles.
The Joint Committee on Legislative Ethics Guide lays out general rules for dealing with conflicts of interest. Legislators must disclose their financial dealings, including employment, contracts and corporate ownership; refrain from voting on matters of direct and personal financial interest to themselves, their relatives and their employers; and file disclaimers before voting on other matters with more indirect conflicts of interest.
The following statement on page 13 of the guide is relevant to Senator Currie’s case:The Ethics Law states that a member of the General Assembly is prohibited from assisting or representing another party, for compensation, in a matter before or involving any unit of the State government or a local subdivision of the State, unless covered by one of the exemptions to the prohibition. The prohibition relates to representation in the course of any type of employment relationship, including regular salaried employment, contractual consultant work, and representation in a professional capacity (e.g., attorney-client.)
None of the exemptions to this rule apply to the allegations against Senator Currie. This is a clear problem for him as he was a paid consultant to Shoppers – a relationship that he did not disclose.
But there is more. Consider this account of the evidence of Senator Currie’s lobbying for Shoppers reported in the Post: The documents, released by several state transportation agencies, show a pattern of interventions by the Prince George's Democrat dating to at least 2003, not long after he became chairman of the powerful Budget and Taxation Committee.
Neil Pedersen has been the State Highway Administrator since 2003. He is not regarded as a political player but rather as a highly-respected professional. He is one of only a handful of powerful officials to survive the transition between the Ehrlich and O’Malley administrations. The State Highway Administration oversees more than a billion dollars a year in capital projects across the state. This agency is not a minor organization and any legislator can only harass it so much.
Currie held meetings with state officials and made phone calls about traffic lights at Shoppers stores in Owings Mills and Laurel and about road changes at a store in Anne Arundel County.
“Senator Currie asks me every time he sees me whether we have resolved the Reisterstown Road Shoppers Food Warehouse issue,” Neil J. Pedersen, the head of the State Highway Administration, wrote in a 2004 e-mail to a staffer. “How close are we to resolving it?”
It is a matter of political capital, that intangible stock of favors, influence and goodwill that is vital to the fortunes of any politician. It must be raised energetically and spent carefully. Even Senate President Mike Miller, the most feared politician in the state, does not wantonly bully his Senators on every single issue but only on what he views as the most important ones. If Senator Currie spent as much political capital on the needs of Shoppers as the Post suggests, what was left over for his constituents?
The most typical comment by state legislators I have spoken with about Senator Currie has been some version of, “He was the last person I expected to be involved with something like this.” If the Senator hid his conduct behind a cloak of propriety, then everyone in Annapolis should look around carefully at everyone else. There may very well be others like Senator Currie who have yet to be revealed, at least for now.
The bottom line is this: when state legislators set foot into the statehouse, they work for us – the people – not for their employers or their extracurricular paymasters. The politicians need to remember that. So too do the voters.
