Unprecedented is one way to describe the announcement by Baltimore’s top lawyer, Ebony Thompson, that she will fight a state order requiring the city’s Board of Ethics to release the names of donors to a legal defense fund set up for Nick Mosby, president of the City Council, and his wife, former State’s Attorney Marilyn Mosby.
“It’s the first time I’m aware of that something like this was actually appealed” by a public body in Maryland, said Spencer Dove, staffer for the Maryland Public Information Act Compliance Board, which ruled last week that the Ethics Board was breaking the law by withholding the names from The Brew and Baltimore Sun.
More importantly, Thompson’s involvement exposes a fundamental problem with a supposedly independent panel charged with overseeing the ethical behavior of elected officials.
Namely, its reliance on the legal advice of a mayoral appointee regarding the most sensitive political case since the panel was established by the Public Ethics Law in 2004.
Previously, the board got around the problem of investigating the shadowy defense fund set up in 2021 to benefit City Hall’s second most powerful elected official (who is running for re-election next year) and his wife (now facing trial on federal tax and perjury charges) by using outside legal counsel.
The Washington-based firm Epstein Becker & Green was hired to investigate the lack of disclosure of the defense fund on Nick Mosby’s 2021 ethics disclosure form.
The firm then successfully defended in circuit court the Ethics Board’s decision that Mosby violated the city ethics ordinance when the defense fund accepted cash from “controlled donors,” or persons doing business with the city.
But after all that effort and expense – $125,479 was paid to the Epstein firm last year – the board has left the matter of responding to the Compliance Board’s ruling in favor of The Brew and Sun to political appointees.
Previously challenged to investigate the shadowy defense fund set up to benefit City Hall’s second most powerful elected official, the Ethics Board used outside counsel.
The situation is rife with potential conflicts of interest.
As City Council president, Nick Mosby has the “power of the purse” – the ability through his own office and through his Council allies to review and alter the Ethics Board’s yearly budget.
He also gets to nominate one of the panel’s five members and has various close ties to a fellow Democratic Party mayor facing tough re-election prospects in 2024.
Add to that the fact that sometime before the end of this year, Thompson will face a confirmation hearing before the body that Mosby heads to become permanent city solicitor.
(Because she was a year short of the minimum City Charter requirement of 10 years of legal practice, Thompson was made acting solicitor last December by Mayor Brandon Scott.)
Asked if these circumstances raise questions about the Ethics Board’s independence, Director J. Christoph Amberger declined to weigh in.
“I would have no comment on that,” he told The Brew this week.
“To ensure public trust”
Housed on the sixth floor of City Hall, the Ethics Board oversees and enforces the Public Ethics Law, which is intended “to guard against improper influence, or even the appearance of improper influence, and to ensure public trust in the government.”
Each member must be “of known personal integrity” and possess “recognized knowledge and interest in government and civics,” according to the panel’s website.
No member may be a paid lobbyist, a government official or a candidate for elected public office.
Under the ethics law, one member is nominated by the Council president, one member by the comptroller, and three members by the mayor.
All must be confirmed by the City Council.
The current board is chaired by former Liquor Board Chairman Stephan W. Fogleman, who is the Council president’s appointee.
The other members are three attorneys – John A. McCauley, Melodie Hengerer and Noelle W. Newman – and real estate agent Arnold Sampson.
“At their discretion”
The city law department wrote the arguments that the Ethics Board presented to the Compliance Board after The Brew contested its redaction decision in March.
And the law department now says it will appeal the state’s ruling by filing a lawsuit in Baltimore Circuit Court.
“The law department is like our corporate counsel. They’re the quarterback” – J. Christoph Amberger.
Asked why the Ethics Board did not again use outside counsel, Amberger indicated that others in City Hall made that determination.
“The law department is like our corporate counsel. They’re the quarterback,” he said. “At times, the work is farmed out, like in the case of Mr. Mosby.”
But Maryland Public Information Act (MPIA) requests are handled by the law department “at their discretion,” Amberger added, referring The Brew to Jeffrey Hochstetler.
Hochstetler was counsel to the Compliance Board and then was executive director of the Ethics Board during the Mosby donor investigation.
Last year, he was hired by the city law department.
He did not respond to a request for comment about his role in the planned appeal of his former employer’s ruling.
Nor did a spokesman for Mayor Scott’s office.
Should the city file a lawsuit against the ruling, staffer Spencer Dove said the Compliance Board “will be asked to provide certain materials to the court.”
This would leave the decision in the hands of the circuit court judge.
And until a ruling is made, the public will have to wait and wonder what people and companies forked over money to the defense fund for Baltimore’s currently divorcing power couple.