There no longer is any doubt that Mayor Brandon Scott is willing to trample the constitutional rights of Baltimore voters if necessary to block the Inspector General’s access to city records

I recently noted that the tactics employed by Scott and City Solicitor Ebony Thompson in their defense of the lawsuit filed by IG Isabel Mercedes Cumming to compel the city to restore her access to records in the custody of city agencies had an air of desperation.

That was before Baltimore Circuit Judge Pamela White issued a final decision in the case on September 21.

The decision was an unmitigated defeat for the city. The judge sharply rebuked the actions taken by city officials to impede investigations by the Office of Inspector General (OIG) and ordered the city to immediately comply with OIG subpoenas.

She found that the city made vague and unsubstantiated allegations about Cumming’s actions and motives in its attempt to justify its abrupt revocation of the OIG’s direct access to digital records, while failing to rebut the IG’s claim that such access was essential to the performance of her duties.

Judge White’s decision turned desperation into panic in the mayor’s office.

The city appealed her decision to the Appellate Court of Maryland on the same day it was issued. That court has denied two requests that the city be excused from complying with OIG subpoenas until the court reaches a decision on the merits of the appeal, which may not come until late next year.

It is worth stepping back from the procedural wrangling between the parties to take a look at the bigger picture, including the serious implication of the appeal itself.

The right of Baltimore voters to determine the form and structure of city government is grounded in the very first article of the Declaration of Rights of the Maryland Constitution.

The appeal demonstrates that Mayor Scott is so anxious to hide something from the OIG and the public that he is willing to stymie the exercise of that right and to risk violating his oath of office.

Key Points to Remember

1. There never was a reasonable justification for the appeal.

Judge White’s decision solved the “problem” cited by the city as the basis for cutting off the OIG’s access to records.

Thompson stated in her February letter to the mayor that implementing restrictions on the OIG’s access to records was necessary to reduce “the risk to the city” because allowing access to continue “would constitute a knowing and willful violation of the MPIA.”

It was the only possible justification she could give for effectively shutting down a charter-mandated city function.

The city is now bound by a final court judgment that orders the city to comply with past, current and future subpoenas issued by the OIG without regard to the restrictions and limitations that apply to ordinary requests for information under the MPIA.

• FULL BREW COVERAGE

City employees who comply with that order cannot be held liable for damages for knowingly and willfully violating the MPIA. The protection from liability will continue indefinitely unless the order is overturned on appeal or there is an intervening change in the law based on legislation enacted by the General Assembly or on the reported decision of an appellate court in another case.

If there is an intervening change in the law that contravenes Judge White’s decision, then the city will have to limit future access accordingly but will remain protected from liability for inspection allowed before the change in the law.

The inescapable conclusion is the appeal was filed was not to protect the city from liability, it was to try to further delay the release of information that the mayor wants hidden.

2. The IG’s access to records is the product of the exercise of the constitutional right of voters.

Article 1 of the Declaration of Rights provides that “all Government of right originates from the People . . . and they have, at all times, the inalienable right to alter, reform or abolish their Form of Government in such manner as they may deem expedient.”

In 1915, Maryland voters adopted Article XI-A of the constitution, known as the Home Rule Amendment. It granted voters in the counties and the City of Baltimore the right to adopt a charter form of home rule.

A city or county charter often is equated by the courts to a “local constitution” and empowers the voters in Baltimore and charter counties to establish the “form and structure” of their local government.

Baltimore voters were the first to exercise their collective right under Article XI-A and adopted a home rule charter in 1918.

In 2018, city voters amended the city charter to create an independent IG. The charter empowers the IG to issue subpoenas to gather information in the course of investigating complaints of fraud, financial waste and abuse in city government, including alleged violations of law by elected and appointed city officials.

The appeal of Judge White’s decision leaves no doubt in my mind that the mayor is trying to nullify Baltimore voters’ exercise of their constitutional right to determine the form and structure of city government by rendering the OIG unable to perform the duty assigned to it by the voters in the city charter.

A strong case can be made that such action violates his oath “to support the laws and constitutions of the United States and of the State of Maryland.”

3. The law department continues to embarrass itself.

Another troubling part of the big picture is the role that Thompson and her staff continue to play in Mayor Scott’s attempt to cripple the OIG.

Judge White made no secret throughout the case of her disapproval of Thompson’s refusal to allow the IG to retain independent counsel, as available under city law, which the judge deemed a conflict of interest.

She stated in her September 21st opinion that “a direct conflict appeared as the Solicitor would not act to engage independent counsel for the OIG to enforce its subpoenas while contemporaneously acting to restrict or avoid MONSE’s [Mayor’s Office of Neighborhood Safety and Engagement] responses to those subpoenas.”

In their latest unsuccessful effort to have the appellate court excuse the city from complying with OIG subpoenas until the appellate court reaches a decision on the merits of the appeal, city lawyers yet again repeated an erroneous account of state and city law.

Contrary to Thompson’s opinion, city agencies (including the law department) do not have the general right to assert the attorney-client privilege to prevent the OIG from gaining access to their records.

It is inconceivable that city lawyers are unaware of a landmark case decided by the Maryland Supreme Court in 2002, Caffrey v. Department of Liquor Control for Montgomery County.

Nevertheless, I’ve never seen it cited once in the opinions and memoranda coming from the law department since the controversy over the OIG’s access to records began.

In Caffrey, the court addressed a Maryland Public Information Act (MPIA) request by an ordinary citizen, so the special need of an OIG for subpoenaed records was not even considered.

The court held that, even though the attorney-client privilege falls within the “mandatory denial” category under the MPIA, the officers and employees of a local government can be precluded from asserting it to deny requests for records under the MPIA by the provisions of the government’s charter.

4. The government is the “client,” and the client can waive attorney-client privilege.

Baltimore, like Montgomery County, is a corporate body under the law, and it is the “corporation” that is the client under the laws governing assertion of the attorney-client privilege. In other words, their charters dictate how and when the privilege may be asserted on behalf of the city or county by its officers and employees.

At the time of the Caffrey decision, Section 505 of the Montgomery County provided in pertinent part:

“Any person shall have the right to inspect any document, except confidential police records, personnel records, or records of a confidential private nature as defined by law. . . This section shall not apply to a document or other material obtained or prepared in anticipation of litigation or for use in legal proceedings to which the County is a party.”

The court held that the language waived both the attorney-client privilege and the attorney work privilege (a “mandatory denial” under the MPIA) except for materials “obtained or prepared in anticipation of litigation or for use in legal proceedings to which the County is a party.”

It emphasized that the exception was not based on the MPIA, it was based on the language of Section 505 of the county charter.

Here is the relevant language from the Baltimore charter: “To perform the duties of office, the Inspector General may issue a subpoena to require. . . the production of any information, document, report, record, account, or other material.” Any means any.

5. There is no exception for materials prepared in anticipation or for use in litigation.

As explained many times by Maryland’s appellate courts, it is a fundamental rule of statutory construction that courts should not add exceptions to laws where no exceptions are expressly stated or necessarily implied.

The appellate judges who denied the city’s requests to stay compliance with OIG subpoenas noted that they did “not interpret the circuit court’s ruling to require the City to grant the Office of the Inspector General access to. . . the Office of the Inspector General attorney-client privileged communications or work-product generated in this litigation” (emphasis added).

That caveat holds out the possibility that the courts may find a limited exception for communications and work product directly related to the (hopefully rare) case in which the IG sues the city, but it certainly does not suggest any broader exceptions to the general waiver effected by the city charter.

6. There is good reason why the IG’s records access extends to legal advice.

The OIG is the city’s internal “quality assurance” office, tasked with identifying violations of laws and regulations and why they occur so that future violations may be prevented.

Sometimes prevention includes retraining and even changes in personnel, depending on whether a violation was inadvertent or deliberate.

Determining if a violator disregarded legal advice, or if the violation was the consequence of bad legal advice, can help make that distinction.

It’s easy to understand why the city’s lawyers may not like that type of scrutiny.

7. The city is escalating the fight to a constitutional dimension.

The actions by the mayor and his team threaten “the inalienable right [of the People] to alter, reform or abolish their Form of Government in such manner as they may deem expedient” guaranteed by the Article 1 of the Declaration of Rights of the Maryland Constitution.

The controversy is a microcosm of controversies on the national level, with distinct Trumpian qualities.

The survival of an important guardrail in the city’s “local constitution” intended to detect and deter corruption and abuse of power by city officials is on the line.

8. The deafening silence of elected officials.

The most remarkable aspect of the situation is the general lack of acknowledgement of what is at stake by leading city and state officials.

This includes City Council President Zeke Cohen and all but one of the Council members, Maryland Gov. Wes Moore and state Senate President Bill Ferguson.

The absence of pushback against the mayor – save from Baltimore Councilman Mark Conway and, to a certain extent, Maryland Attorney General Anthony Brown – is a sad commentary on what can happen when one political party controls the levers of power in a city and state.

It was the OIG’s investigation of MONSE that precipitated the cutoff of the OIG’s access to records, and it appears that the mayor was fixated on delaying release of the MONSE records as long as possible.

With that battle lost, and the city now compelled to produce the MONSE records immediately, perhaps the mayor will run up the white flag in his war on the OIG.

He should respect the constitutional rights of his constituents by instructing the city solicitor to withdraw the appeal and concentrate on restoring the OIG’s access to city records.

• David A. Plymyer retired as Anne Arundel County Attorney after 31 years in the county law office. He can be reached at dplymyer@comcast.net and Twitter @dplymyer.