Here we go again. After reading the Baltimore City Law Department’s absurd defense of one day’s notice of a meeting to evaluate the work of a corruption watchdog who ruffled the feathers of Baltimore’s power couple, Marilyn and Nick Mosby, I thought it would not be possible for the legal staff to further embarrass itself.
Upon reading an opinion written by chief solicitor Hilary Ruley, released last Friday night, I learned how wrong I was.
Let’s jump straight into the legal weeds:
The Inspector General Advisory Board, charged with conducting an annual performance review of Inspector General Isabel Mercedes Cumming, has the absolute right to meet behind closed doors to discuss that review under the Maryland Open Meetings Act (OMA).
That is not the issue. The issue is whether the board is compelled to close the meeting to the public under the Maryland Public Information Act (PIA).
Ruley concluded in her opinion that it is. I believe she is wrong.
The meeting of the advisory board was initially scheduled for October 6, but was rescheduled for tomorrow (October 28) after a Brew story alerted the public to the notice violation.
During the intervening time, IG Cumming sent a letter to the board asking that the meeting to discuss her performance be open to the public. Her letter expressly waived any rights that she might have to the confidentiality of the discussion.
In response, Ruley wrote an opinion in which she advised the board that it could not honor Cumming’s request to discuss her performance in an open meeting. Ruley stated that, although Cumming’s waiver would insulate the board from civil liability, it would not protect board members from possible criminal prosecution under the PIA for wrongfully disseminating a “personnel record.”
Saying that Ruley’s opinion placed the Advisory Board “in a conflicted position,” Ruley’s boss and the board’s chairman, City Solicitor James L. Shea, said the panel had “no alternative” except to cancel the October 28 meeting.
The board’s website then explained that it “will explore other ways to conclude its performance review,” whatever that means.
If Ruley is right, tens of thousands of government supervisors would now be in jeopardy of criminal prosecution. Fortunately, they have nothing to worry about.
Let me put Ruley’s opinion in perspective:
Current and former employees of state and local governments in Maryland, when seeking employment elsewhere, routinely authorize their government supervisors to discuss their performances with prospective employers outside of government.
Those tens of thousands of government supervisors are in jeopardy of criminal prosecution if Ruley is right. Fortunately, they have nothing to worry about.
Ruley’s opinion consists of a series of misinterpretations of the law. The first is her contention that discussion of Cumming’s performance at a meeting of the board would constitute disclosure of a “personnel record.” A personnel record is a category of public record as defined by the PIA.
A 1997 opinion of the Maryland Attorney General explicated a key distinction that Ruley ignores, pointing out that the term “public record” is limited to “documentary material” by the language of the PIA.
Applying the reasoning of that opinion, discussion of an employee’s performance by a public entity does not constitute disclosure of a personnel record even if that discussion subsequently is reduced to a written performance review.
The distinction is reflected in the complementary language of the OMA and the PIA. There is no conflict between the statutes as Ruley suggests.
Under the OMA, a public body has the right but not the obligation to meet in closed session to discuss the “performance evaluation of an appointee, employee, or official over whom it has jurisdiction.” A public body is not precluded from commenting on an employee’s performance in public, nor should it be.
Under the PIA, once a performance evaluation is formalized and reduced to writing, however, it constitutes a confidential personnel record. The law is far more straightforward on this issue than Ruley makes it appear.
Let’s assume that Ruley is correct, and that discussion of Cumming’s performance by the board would be tantamount to disclosure of her personnel record.
What about Cumming’s explicit waiver of the confidentiality of that record? Ruley takes the position that Cumming cannot waive the confidentiality, at least not for purposes of protecting members of the board from criminal prosecution.
The PIA confers on Cumming the absolute, unqualified right to inspect and copy her own personnel records and to assign that right to a “designee.” Nothing restricts her from designating whomever she pleases to exercise that right, including members of the public. Cumming is free to disseminate copies of her personnel records as she wishes.
Ruley’s opinion gives a board packed with political appointees an excuse to review the IG’s performance in private.
Moreover, the confidentiality bestowed by the PIA on Cumming’s personnel records protects her right to privacy, no one else’s. Rights enshrined in the U.S. Constitution can be waived, but the right of a public employee in Maryland to the confidentiality of his or her personnel record cannot be? C’mon, Ms. Ruley.
Arguing that Cumming cannot waive her right to the confidentiality of her personnel records goes against the great weight of the law. Ruley would have to cite a case or opinion right on point to support such an extreme position. She does not, because there is none.
In short, I believe that her assertion that board members could be prosecuted for “willfully or knowingly” violating the PIA by discussing Cumming’s performance at an open meeting, after Cumming gave them written permission to do so, is preposterous.
In Search of Political Cover
As described above, the board has the right but not the obligation to meet in closed session to discuss Cumming’s performance review. There is no legal requirement that Cumming be invited, although it seems a bit unprofessional not to do so.
Ruley is not correct that discussion of Cumming’s performance is legally equivalent to discussion of Cumming’s personnel record. Ironically, if she was correct, Cumming must be invited to a closed meeting at which her performance is discussed.
It’s painfully obvious that some members of the board prefer to act in secret without taking responsibility for the secrecy.
The PIA gives Cumming an unconditional right of access to her own personnel records. If she is not invited to the meeting to hear her “personnel record” described, then she has been denied access to it under Ruley’s theory.
Ruley’s opinion gives an advisory board packed with political appointees an excuse to review Cumming’s performance in private.
It is painfully obvious that some members of the panel, afflicted by political cowardice, prefer to act in secret without taking responsibility for the secrecy.
There could not be a more damning indictment of the inner workings of Baltimore City Hall than the manner in which the annual performance review of the IG has been handled.
Mayor Brandon Scott pledged to city residents in his 2021 State of the City address that he would “work to regain your faith in government.”
In my opinion, the conduct of the law department throughout this affair has shattered whatever faith was left.
• David A. Plymyer retired as Anne Arundel County Attorney in 2014 after 31 years in the county law office. He can be reached at email@example.com and Twitter @dplymyer.