ANALYSIS: Under the BOE’s rules, no justification for Wednesday’s vote on the conduit deal
Baltimore’s Acting City Solicitor gave Mayor Scott bad advice when she told him the spending board meeting could be held without Henry and Mosby present
Above: Mayor Brandon Scott said taking the conduit vote despite two members’ boycott of it was regrettable but necessary. Acting City Solicitor Ebony Thompson said the decision was legally defensible. (CharmTV)
Last year, Acting Baltimore Solicitor Ebony Thompson was wrong about the meaning of “practiced the profession of law for not less than 10 years” as a qualification for the position of city solicitor under the City Charter.
Now she is wrong about the meaning of “abstention” and “quorum” as defined in the rules of the Board of Estimates (BOE).
In fact, she is so wrong that by the time this commentary is published, I expect that she will have corrected herself to preserve whatever is left of her credibility.
Despite her public comments to the contrary, there was no quorum at Wednesday’s meeting of the BOE at which it purportedly approved on a 3-0 vote the controversial agreement negotiated by the Scott administration that cedes substantial control over the city’s conduit system to BGE.
Two of the five members of the BOE, Comptroller Bill Henry and City Council President Nick Mosby, boycotted Wednesday’s meeting and did not send designees to attend in their places.
Their express intent was to prevent the existence of a quorum for the meeting.
Henry and Mosby, as well as at least six other members of the City Council, had called on Mayor Brandon Scott to slow down the process so that the contract could be given proper consideration.
The mayor ignored their demands, and he and his two BOE appointees, Public Works Director Jason Mitchell and Thompson, voted to approve the contract.
Thompson stated that Henry’s and Mosby’s absences constituted abstentions and therefore completed the five votes needed for a quorum.
She claimed that “the contract is now approved” and predicted that any court challenge to the vote would fail.
I believe that her interpretation of the rules is nonsensical – and her prediction about the outcome of a court challenge laughable.
Article VI, Section 2 of the charter bestows on the BOE the power to adopt rules for the conduct of its business. According to the current set of rules, approved in January 2022:
“Abstention means when a member of the Board of Estimates declines to vote for or against an item presented on a Board agenda or on a motion made at a Board meeting.
“The five members of the Board or the members’ designees as specified in the Charter constitute a quorum. . . If a member abstains on a matter, that member will still count toward the quorum.”
A Simple Matter
This is not a complicated issue. All five members or their designees must be present at a meeting to constitute a quorum.
If a member decides to abstain on a matter, however, that does not mean that the quorum is lost. This is all that the rules say.
I do not know where Thompson gets the idea that an absence is the same as an abstention.
It’s not what the rules say. An abstention is an abstention, and an absence is an absence; the former counts toward a quorum, and the latter does not.
Under Thompson’s theory that absences constitute abstentions, there would be a quorum at a meeting even if no one showed up.
Under her theory, there would be a quorum at a BOE meeting even if no one showed up.
In my opinion, Thompson’s appointment as the city’s top lawyer should not be confirmed by the Council when she becomes eligible later this year unless she changes her advice on the legality of the vote to approve the BGE contract.
A solicitor is required by the charter to provide the best professional advice not only to the mayor, but also to the comptroller and to members of the City Council, including the president.
Knowingly giving incorrect legal advice to other elected officials in order to please the mayor would be a violation of a lawyer’s professional ethics.
I am not saying that Thompson did that. But I am saying that her opinion in this matter puts her credibility in jeopardy.
I hope that she reconsiders her opinion, both for her sake and for the sake of city residents.
• David A. Plymyer retired as Anne Arundel County Attorney after 31 years in the county law office. He can be reached at email@example.com and on Twitter @dplymyer.
CharmTV’s video of the 2/15/23 meeting of the Board of Estimates. Acting City Solicitor Ebony Thompson’s explanation for the decision to go ahead with the meeting and vote begins at about 5:35.