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Marilyn and Nick Mosby

by Fern Shen4:52 pmFeb 18, 20210

City Solicitor indicates Mosby’s failure to report travel was not a violation because the rules are ambiguous

It’s not clear that the state’s attorney, mayor, and other elected officials must follow the same reporting rules as city workers, he says. Scott convenes a work group to clarify.

Above: Baltimore City Solicitor James L. Shea disputes a finding in an Inspector General’s report on State’s Attorney Marilyn Mosby. (Venable LLC)

City Solicitor Jim Shea indicated today that State’s Attorney Marilyn Mosby’s failure to seek approval for some out-of-town travels was not a violation because it is not clear that elected officials must follow the same reporting requirements as other city employees.

Shea’s opinion came in response to a request by Comptroller Bill Henry about travel policy. It followed a report by Inspector General Isabel Mercedes Cumming that said Mosby should have sought advance permission from the Board of Estimates for 15 trips made in 2018 and 2019.

After reviewing the Administrative Manual (AM) and other documents, Shea said it was not clear whether the rules specifically require such reporting by elected officials: the mayor, City Council president, comptroller and members of the City Council.

“Because of a number of inconsistencies in the application of the relevant provisions to elected officials, there is no clear answer to whether they require BOE approval for city-elected officials’ travel not paid for by the city,” Shea wrote.

Mosby’s lawyers have argued that, because outside groups paid for her 2019 trips to Berlin, Kenya, Lisbon and elsewhere, she was not required to report them.

Other members of the state’s attorney’s office do report their travels to the Board of Estimates, even when the trips are paid for by third parties and not by taxpayers.

While some portions of the manual reference travel by elected officeholders, in other sections “there is no express reference. . .  to elected officials,” Shea wrote. “Instead, the references are to city employees and ‘representatives.’”

Shea recommended that the rules be clarified.

Cumming tonight released a statement on Shea’s findings.

“The Office of the Inspector General acknowledges the Administrative Manual policy interpretation of City Solicitor James L. Shea,” she wrote. “Solicitor Shea found the Administrative Manual to be unclear in regard to Elected Officials.”

“As I suspected”

Mayor Brandon Scott, who’s been under pressure to comment on the Mosby report, announced today he has asked for the travel rules to be reviewed by “a 90-day work group.”

“Establishing this work group is about proactively working toward clarity around travel and notification policy for all public officials once and for all,” Scott said in an emailed statement.

“Our administrative manual is not regularly updated and could benefit from a comprehensive assessment,” he added.

The group will focus on clarifying “the approval process for elected official travel, the procedure for trips that do not require public dollars, and the definition of time-off for elected officials who are not on a full-time schedule per the City Charter,” the statement said.

Scott asked for the work group to be convened by Shea, City Administrator Chris Shorter, and the directors of Human Resources and Finance.

Comptroller Bill Henry, who released Shea’s opinion several hours after Scott announced the work group, said in a statement, “I look forward to the City Administrator’s review of the travel policies for elected officials and welcome any scrutiny on the process.”

“As I suspected,” Henry continued, “the formal opinion from the Law Department is that the Administrative Manual is unclear, which has led to disparate guidance, compliance and enforcement over the years.”

Two Sets of Rules

In contrast to today’s City Hall comments, Cumming said on Tuesday that the travel rules were clear and that past enforcement and guidance reflected a “well-established practice” that “spans multiple administrations.”

Cumming’s report on Mosby’s travels had zeroed in on the same question: whether the reporting requirements ought to be different for elected officeholders.

The IG said her office interpreted the policy “as holding elected officials to the same standard as every other city employee, not a lesser standard.”

Seeking exoneration, Marilyn Mosby instead gets highly critical report from Baltimore’s Inspector General (2/9/21)

Cumming stands her ground, dismissing criticism by Mosby’s lawyers (2/16/21)

But Shea, in his five-page analysis, addressed differences between elected officials and rank-and-file city workers that indicate separate rules are needed.

He noted that “an elected official does not work on a clock,” explaining:

The meaning of a workday is ambiguous in this context. For a City Councilperson, for example, does a workday mean the time when his or her attendance is required (for a committee hearing, or a council meeting)? Or does it mean the full, seven days a week on-call status that is true for the City’s elected officials?

In another section, Shea noted that “travel by a Mayor, Comptroller, or Councilperson often mixes city business with personal and political purposes” and went to to say:

For example, if one of these elected officials travels out of state and visits a municipal office or has a meeting with local officials while on vacation, does that mean that the time arguably devoted to city business is what is counted for the five day or the weekend conditions? Does the municipal side visit mean that the trip, predominantly a vacation, is now subject to BOE approval?

Whether electeds will have their own set of travel reporting requirements will become clear when the “90 day work group” completes its work within, presumably, 90 days.

“I have asked this group to convene and present recommendations that remove any ambiguity in these processes for greater transparency and accountability moving forward,” Scott said.

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