A Six-Year Legal Battle Between a County Ethics Commission and a Former County Attorney

At last week's COGEL conference, I learned about a judicial case involving the Anne Arundel County (MD) Ethics Commission, which has been going on for six years. A decision of the Court of Special Appeals last November is worth a look. There's a lot of interesting material for local government ethics professionals. Two of the issues the case raises are the difference between legal ethics and government ethics, and the filing of ethics complaints by politicians.

Here are the basic facts. A year-and-a-half after the county attorney retired, he brought a class action suit against the county relating to the allegedly unlawful use of development impact fees ("impact" here means the roads and sewers required to supply new developments). As county attorney, he had asked an assistant county attorney to write a written opinion concerning the county’s impact fee law.

A principal witness in the case was to be a man who had worked for the county for 23 years, and was the county's chief administrative officer at the time of his retirement two years before the county attorney's. In 2000, he had been hired by the former county attorney to examine the county's financial records. According to the EC, he had participated in the administration of the impact fee program and had access to confidential information regarding it.

The county's ethics code had the following post-employment representation provision:

§ 3-109. Representation by former employees.
(a) A former employee may not assist or represent a person in connection with a specific matter in which the former employee, as a County employee:
(1) acted on behalf of or represented the County in a matter involving substantial responsibility on the part of the employee; or
(2) with reference to which the former employee acquired information not generally available to the public when the former employee undertakes the assistance or  representation.

Nearly three years after the class action suit was filed against the county (it was successful), the county executive filed a complaint against the former county attorney and chief administrative officer for violating the post-employment representation provision. The EC found a violation and ordered the two men to cease their participation in the suit. Instead, they appealed, and lost the appeal. They still refused to cease their participation, forcing the EC to seek relief from the circuit court. The circuit court refused to provide relief, and the EC appealed. The decision I am looking at in this post is the appellate court's decision to reverse the circuit decision in part, vacate it in part, and remand it for determination of the appropriate penalty.

Legal Ethics vs. Government Ethics
One thing that threw a wrench into this matter was the county's attempt to disqualify the former county attorney from participating in the class action suit, using a legal ethics argument, but based on the EC's findings. The county lost that case, and the former county attorney said that this decided the matter. However, not only was it a case involving legal ethics, but the principal reason for rejecting the county's request was that it had waived its right to seek disqualification by taking so long to raise the issue.

The former county attorney argued that the decision on the suit to disqualify him could not be rendered null and void by providing the relief requested by the EC, namely, removing him from the class action suit and taking away his attorney fees. But this confuses legal ethics and government ethics. Whatever disciplinary action the court system might take according to a lawyer's professional rules has nothing whatever to do with a government lawyer's ethical obligations as a government official pursuant to a local government ethics code.

The appellate court found on p. 30 that "the circuit court was entitled to consider the [disqualification] ruling in the parallel case." I disagree with this, since that court's decision was based on completely different rules. But the appellate court, in its following sentence, limited the effect of the legal ethics decision: "Nevertheless, to the extent that the circuit court focused on harm to appellees and the [class action] plaintiffs, without considering the importance of the public interest in the enforcement of the public ethics laws, it erred or abused its discretion."

The appellate court later emphasized this point. It says on p. 37, "When a legislative body enacts a provision for the purpose of benefitting or protecting the public interest, the circuit court must consider the public interest." The appellate court further found, on p. 38, that the court in the legal ethics matter, "acting under the Maryland Lawyers' Rules of Professional Conduct . . . would have no basis for addressing Dvorak's conflict of interest." For this reason, the appellate court found that relief was due, despite the legal ethics ruling.

Ethics Commissions Are Independent Agencies
The former county attorney also argued that the county was the plaintiff in both the current suit and the class action suit. He argued, first of all, that the EC is a county agency, represented by the county attorney. However, the appellate court, on p. 38, found that the EC is an independent agency, and that it was not a party to the legal ethics case. This is an unusual and important view of ethics commissions.

When Politicians File Ethics Complaints
Second, the former county attorney argued that, when the county executive filed the ethics complaint against him, he was doing so on behalf of the county rather than himself individually. This argument was not dealt with by the appellate court, but it raises some interesting questions. Can an elected official who manages and commonly represents the local government file an ethics complaint as a citizen rather than on behalf of the county? Clearly, such an individual has the right to state his personal feelings, which may not be the same as what he does as a public servant. But when he acts with respect to his own government, can he act as a citizen?

I would argue that he cannot. If he has information that an official or employee might have violated the ethics code, he should either act for the county or pass the information on to someone else. The information could be passed on to the ethics commission, if it has the authority to file ethics complaints itself.

Another problem with an elected official filing an ethics complaint is that it is commonly seen as a political act, another argument made by the former county attorney. Although it makes a very weak legal argument, it is an important issue. Political ethics complaints compromise an ethics program. The public may come to see a politicized ethics matter not as an attempt to gain the public trust, but as infighting that wastes their tax dollars. This makes people think an ethics program is a waste of time and money.

The situation in Anne Arundel County seems tailor-made for this. In fact, the very first sentence of the appellate court decision refers to the case as a "seemingly endless battle."

Although there are reasonable arguments for the EC's decision, this case is more politics than ethics. Although the former county attorney clearly intended to benefit from bringing the class action suit, both monetarily and politically, he was benefiting less from misuse of his former position or from confidential information than from his clever recognition that a suit such as this might very well work.

It is ugly when a county attorney retires and sues his own county, and it is ugly when he fights tooth and nail against his county's EC, even after its decision has been approved by a court. It is also ugly when a county spends hundreds of thousands of tax dollars to prevent the court's decision, on the impact fees, from being implemented. It's just not clear to me that this is primarily a government ethics issue, even though it has serious ramifications for public trust in the county government.

Robert Wechsler
Director of Research-Retired, City Ethics

---