Baltimore County Executive Johnny Olszewski Jr. today placed his bill to make sweeping changes to the law governing the Office of the Inspector General on hold, choosing not to introduce it before the County Council as scheduled tonight.
His decision to make a tactical retreat undoubtedly was based on the groundswell of public opposition to the draft bill.
Even if retreat turns into permanent surrender, it is important to recognize that this bill was a calculated effort to destroy a powerful tool for honest and efficient government.
The outcome could well have been different if the IG, Kelly Madigan, did not have the courage to publicly refute Olszewski’s claim that the bill was drafted in “collaboration” with her, falsely implying that she approved it.
Thankfully, her outspokenness drew the public’s attention to the measure.
In my opinion, it is important for county residents to understand just how bad Olszewski’s attempt to undercut good government was. While the bill may go away, this question will linger:
Why did he propose legislation that would neuter the only effective body watching over a county government with an extraordinary history of corruption?
Pretext of Oversight
The pretext for Olszewski’s bill was the need for “oversight” of the IG.
The bill has nothing to do with legitimate oversight and everything to do with preventing a tiny, two-person agency from investigating the self-dealing and pay-to-play politics that’s been endemic in county government for decades.
The bill has nothing to do with legitimate oversight and everything to do with preventing a tiny, two-person agency from investigating self-dealing and pay-to-play politics.
The bill would drastically narrow the scope of Madigan’s investigatory authority and then strip her of the tools to do the investigations that remain within her authority.
To further ensure that the IG accomplishes as little as possible, the bill would subject her office to burdensome supervision by political appointees unqualified to oversee investigations and who may have conflicts of interest.
Among the worst of many troublesome provisions:
• Restrictions on investigations.
The bill would have removed the IG’s existing authority to commence investigations on her own initiative, restricting her to investigating “complaints.” Any jurisdiction genuinely interested in rooting out corruption must give its IG the flexibility to pursue credible information gathered from sources other than formal complaints.
• Removing the authority to carry out criminal investigations and joint investigations with law enforcement agencies.
Although the investigation of criminal misconduct ultimately is the responsibility of law enforcement agencies, an IG should be empowered to do threshold investigations of criminal misconduct and to do them in concert with law enforcement agencies when appropriate.
Eliminating her authority to do joint investigations was intended to prevent her from sharing county records with law enforcement agencies. This would make the job of rooting out corruption in the county by the IG and law enforcement that much harder. Of course, if the bill ever is passed, her access to county records would be drastically reduced.
• Curtailing access to privileged records.
The bill would categorically deny the IG the right to inspect records that are “protected, confidential or privileged under federal or state law.” That means that she would not have access to communications with members of the County Council and their staff protected by legislative privilege, or to communications with the county executive and his staff protected by executive privilege.
She would be cut off from access to intra-agency and inter-agency documents under the deliberative process privilege. She would not be able to see the personnel records of county employees. Nor would she be able to inspect commercial and financial information provided to the county by vendors and contractors doing business with the county.
• Eliminating unconditional right of access.
Under current law, the IG has unrestricted access to county records. Employees are under a duty of employment to turn county records in their possession over to the IG and can be disciplined for failure to do so.
The bill would eliminate the right of access and replace it with the right to “request” access. That’s a big difference.
The bill would bar access to the most important records and make access to all other records more difficult. It would make the IG’s job impossible.
In summary, the bill would bar access to the most important records and make access to all other records more difficult. It would make the IG’s job impossible.
• Intrusive and unqualified micromanagement.
The bill would require the IG to submit each proposed investigation to the oversight board for “review” and include “a written work plan that clearly defines the purpose and scope of the investigation, the areas and potential issues to be addressed, the methodologies to be used, and the manner in which the work will be conducted.”
The requirement is ludicrous. It is intended to make initiation of investigations as onerous as possible.
To begin with, the appointees on the oversight board are unlikely to have the investigatory experience to supervise trained and experienced professionals.
On the other hand, they are likely to be under investigation themselves or working for or supervising people under investigation. What about the term “conflict of interest” does Baltimore County’s chief executive not understand?
• Reducing public transparency.
It undoubtedly is no coincidence that the bill would retain the one provision in the current law that should be fixed to improve public transparency. It keeps the provision that states that “all records of the office of the inspector general will be considered deliberative in process [sic] and not available for public review.”
The County Council has no authority to classify the nature of public records under the Maryland Public Information Act (MPIA). That is solely a function of state law.
The reports of investigations by the IG generally fall within the “investigatory file” category, not the so-called “deliberative process” privilege.
The distinction is important because once an investigation is completed, the report of that investigation may be withheld from public inspection only under limited circumstances.
The Olszewski Legacy
It is now clear that Olszewski never wanted an independent IG.
Running on a platform of transparency and accountability in the 2018 election, his call for an inspector general must have seemed like a good campaign talking point at the time. I suspect that he regrets his decision.
And I also suspect that Spiro Agnew and Dale Anderson, two of his predecessors steeped in corruption, are smiling at him from wherever they may be. This is how they would have dealt with a threat to the culture of corruption – by eliminating the threat.
Maya Angelou had a saying about people that presumably included politicians: When people show you who they are, believe them.
This bill was Olszewski showing us who he is and where his priorities lie.
• David A. Plymyer retired as Anne Arundel County Attorney in 2014 after 31 years in the county law office. He can be reached at firstname.lastname@example.org and Twitter @dplymyer.