Acting City Solicitor Ebony Thompson appears determined to create an unnecessary problem for herself.
If she follows through on her announced plan to appeal the decision by the Maryland Public Information Act Compliance Board ordering Baltimore’s Board of Ethics to produce the unredacted list of donors to the Mosby 2021 Trust, she could find herself running into a legal brick wall.
She’ll face a motion to dismiss the appeal because she had no legal authority to file it without the approval of the Board of Ethics.
State law confers standing to appeal a decision of the Compliance Board on the custodian of the record or records in question – not on the mayor, not on the City Council and certainly not on the acting city solicitor.
The five-member Board of Ethics is the custodian of the donor list and has not approved the appeal.
It’s such an extraordinary situation that it is worth a trip into the legal weeds to explain it.
Suffice it to say that a lawyer initiating judicial proceedings without the approval of his or her client in such a high-profile matter is not an everyday occurrence.
Into the Weeds
Only two parties have the right to appeal a decision by the Compliance Board: the complainant seeking a public record and the custodian of that record.
A fundamental principle of Maryland law is that, if the authority to act on a matter is delegated by state or local law to a specific public official or entity, only that official or entity can act on it.
It’s spelled out in the state code in Section 4-1A-10 of the General Provision Article: A complainant or custodian aggrieved by the decision of the Compliance Board may appeal the board’s decision in accordance with Section 4-362 of the article.
Section 4-362 states, in turn, that a complainant or custodian may appeal a decision issued by the Compliance Board to the circuit court as provided under Section 4-1A-10.
“Custodian” and “official custodian” are defined terms under the MPIA. Section 4-101 of the General Provisions Article defines “custodian” as including either the official custodian or “any other authorized individual who has physical custody and control of a public record.”
“Official custodian” means the officer or employee “who is responsible for keeping a public record, whether or not the officer or employee has physical custody and control of the public record.”
The Ethics Board is the custodian of the donor list.
The list of donors to the Mosby trust came into the physical custody of the Ethics Board as a result of an investigation.
Article 8, Section 3-18 of the city code imposes on the Ethics Board the duty to retain all documents filed with it and make them available for public inspection, effectively designating the board as the official custodian of those documents under state law.
Point of Agreement?
I recently submitted a PIA request to the Ethics Board for a record of any action taken authorizing an appeal.
In her email to me confirming that there was no such record, Chief Solicitor Hilary Ruley stated that she was responding on behalf of the Ethics Board because, as provided in Article 1, Section 10-1 of the city code, “each governmental entity, including each Baltimore City agency, is the custodian of its own records.”
Finally, something that the city law department and I agree upon!
The Ethics Board has not voted to appeal the compliance board’s decision.
The Ethics Board is, without doubt, the custodian of the list of donors for purposes of Sections 4-1A-10 and 4-362 of the General Provisions Article and the only entity empowered to decide on behalf of the city to appeal the Compliance Board’s decision.
The Ethics Board is a distinct, independent entity within the government established by the city charter.
It acts by voting at meetings governed by the Maryland Open Meetings Act. It has not voted to appeal the Compliance Board’s decision and order.
State Law Governs
In the event of conflict between state and city law, state law governs.
Article VII, Section 26 of the city charter does provide that the city solicitor “shall have authority to institute, defend or discontinue on behalf of the City, any suit, action, or proceeding in any local, State or federal court or tribunal.”
But even if construed to allow the city solicitor to institute suits on the solicitor’s own volition (a doubtful interpretation), Section 26 is preempted in the event of any conflict with state law.
And state law clearly requires the decision to initiate a judicial proceeding to challenge the compliance board’s order to come from the Ethics Board.
The city code does require the city solicitor to provide professional assistance to the Ethics Board, if requested to do so.
But nothing in the charter or code empowers the solicitor to make decisions for the Ethics Board, including the decision to appeal the decision of the Compliance Board.
What are the consequences of filing an appeal of the Compliance Board’s order without the legal authority to do so?
The immediate consequence is likely to be a dismissal of the appeal.
The personal consequences for Thompson should include a complaint to Baltimore Inspector General Isabel Mercedes Cumming for usurping the prerogative of the Ethics Board and expending the resources of her office on a matter without the authority to do so.
It’s inexplicable. What possible reason justifies cutting the Ethics Board out of the process?
The apparent decision by Thompson to bypass the Ethics Board is inexplicable – what possible reason justifies cutting the Ethics Board out of the process?
Although Thompson may find it easy to gloss over legal formalities outside of court, doing so inside of court will prove more difficult.
If she believes that the decision of the Compliance Board should be appealed, then she should try to persuade the Ethics Board to authorize her to appeal it. It is the client’s decision to make, not the lawyer’s.
• David. A. Plymyer retired as Anne Arundel County Attorney after 31 years in the county law office. To reach him: email@example.com and Twitter @dplymyer.