An Attempt to Extend Legislative Immunity to Exclude Testimony and the Vagueness of "Regulated by the City"
A new argument has been made in the legislative immunity part of the
case against a Baltimore council member who is now the mayor. In a
memorandum to dismiss a new indictment (attached; see below), filed on
September 8, the mayor has argued, on pages 3-10, that testimony by
someone who attended events which the mayor attended in her legislative
capacity cannot be used against her.<br>
<br>
This is an interesting extension of the argument that legislative
immunity prevents any evidence to be introduced regarding a
legislator's legislative activity. Such evidence ordinarily includes
transcripts, recordings, legislators' testimony, and related letters
and other documents, that is, documents that are part of legislative
activity. It does not ordinarily include testimony by a non-legislator
about an activity that was non-legislative in nature, but which was
attended by a legislator.<br>
<br>
The major event in question was a ground-breaking ceremony for a
development project in which the witness (with whom she appears to have
been romantically involved) was involved. What the prosecutor is trying
to prove is that the mayor knew the witness was involved in the
project, and that she did not report gifts from him, even though he did
business with the city.<br>
<br>
I think that the mayor is over-extending the argument. When a
legislator attends a public event at which no legislative activity
occurs, testimony of her attending by someone not part of the legislative body, directly or indirectly, should be
allowed, even if she attended as a legislator.<br>
<br>
In addition, this is
about gift disclosures, something that is completely outside of
legislative activity. Her knowledge of the gift-giver's status itself
has nothing to do with legislative activity. The mayor is simply using legislative immunity as a
way to protect herself from failure to disclose and perjury charges.<br>
<br>
It is likely that the prosecutor will finally step up to the plate on legislative immunity. Let's hope it's not too late.<br>
<br>
<b>"Regulated by the City"</b><br>
Another interesting argument in this memorandum (p. 15 et seq) is that
the term "regulated by the city" in the ethics code is void for
vagueness. There is a long argument about what this term covers, since,
as in most ethics codes where it appears (usually in financial or gift
disclosure provisions), it is not defined. The mayor argues that, left
undefined, everyone could be considered regulated by the city.<br>
<br>
This is disingenuous. Developers regularly require zoning changes, permits, and
approvals that ordinary
people rarely seek. Cities work closely with developers to get
government grants, to attract tenants, etc.<br>
<br>
The mayor further argues that "a developer is regulated when an agency
deliberates and renders a decision on an application by the developer."<br>
<br>
That seems very unrealistic. Unlike an individual who applies for a
zoning change once in a blue moon, developers are constantly being
regulated by the city, but at a particular moment no request may be
pending. When no request is pending, it does not mean the developer is
not "regulated by the city" for the purpose of reporting gifts or a
business or personal relationship to the developer.<br>
<br>
I don't agree that the ethics code is "unconstitutionally vague" when
it uses the term "regulated by the city." There would be gray areas, as
with any definition, but the rule in ethics codes is, when in doubt,
report it. A developer doesn't seem to even fit in a gray area. A gray
area would be, for example, someone who every few years buys a house to
renovate and rent out. Such a person falls between the individual
seeking a minor permit for a home once in a great while and an ongoing,
big-project developer.<br>
<br>
For more on the Baltimore case, see these blog posts:<br>
<a href="http://www.cityethics.org/node/463" target="”_blank”">Favoring Friends and
Family Catches Up to Baltimore Mayor</a><br>
<a href="http://www.cityethics.org/node/606" target="”_blank”">Baltimore Mayor Indicted</a><br>
<a href="http://www.cityethics.org/node/707" target="”_blank”">Legislative Immunity Goes
Local</a><br>
<a href="http://www.cityethics.org/node/712" target="”_blank”">Maryland Prosecutor
Concedes</a><br>
<a href="http://www.cityethics.org/content/problematic-baltimore-legislative-imm…; target="”_blank”">Legislative Immunity Decision</a><br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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