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Drive to impeach Howard County sheriff collides with legal questions

Howard County Sheriff James F. Fitzgerald. (Howard County Sheriff's Office photo)

Howard County Sheriff James F. Fitzgerald. (Howard County Sheriff’s Office photo)

The growing political support for the removal of James F. Fitzgerald has set the table for the impeachment of the embattled sheriff — a first in Maryland political history. But some lawmakers, even those who are offended by Fitzgerald’s alleged racial epithets and claims he harassed subordinates, say they have questions about the legal standard for impeachment and whether his actions outlined in a September Howard County Office of Human Rights report are better suited to be settled by voters in 2018.

“This has never been done, and there’s nothing on point for this particular case,” said Del. Vanessa E. Atterbeary, D-Howard County and chair of the county’s delegation to the House of Delegates.

Atterbeary said she and other lawmakers are waiting for additional advice from the attorney general regarding standards for impeachment and how to proceed. That advisory letter could be ready as early as this week, according to the Howard County delegate.

The offensive nature of Fitzgerald’s alleged comments, which he has not publicly disputed, are spurring legislators to take action, even though there is an absence of a clear legal standard for removing someone from office.

“There’s a lot of discussion about this,” Atterbeary said. “Everywhere I go, people are telling me he needs to go. Everyone is asking how to remove him. The general sentiment is that he’s got to go. We need a legal reason.”

At the federal level, officials can be impeached for conviction of bribery, treason and other high crimes and misdemeanors.

In Maryland, public officials are already automatically removed in the case of a conviction. Fitzgerald has not been charged with a crime, and Maryland’s impeachment standard appears more open-ended.

Two previous advisory letters from the Office of the Attorney General from 1973 and 1984 have held that the elected sheriff in each county is subject to impeachment by the legislature. But the provision, which first appears in the Maryland Constitution in 1851, doesn’t set a standard for an impeachable offense, and it has never been used to remove a state official.

In the 1973 advisory, Attorney General Francis Burch wrote that “the Maryland constitution is silent as to the grounds for impeachment.”

Report’s findings

Fitzgerald finds himself at the center of a storm of criticism, calls for resignation and efforts to forcibly remove him following a 48-page report that found he created a hostile work environment, punished subordinates for not supporting his re-election, referred to African-Americans as “n——” and to former Howard County Executive Ken Ulman as “little Kenny Jew boy.”

Howard County Executive Allan Kittleman said Monday he is leaving “no stone unturned” in his effort to remove Fitzgerald.

Kittleman, a Republican and a vocal supporter of the effort to impeach Fitzgerald, has directed the Howard County attorney to look for other legal remedies.

Both Kittleman and Atterbeary cite a loss of public confidence in the elected sheriff as a reason to have him removed rather than wait for the 2018 election.

“For me, the question has always been should he be removed from office,” Atterbeary said. “The answer is that as sheriff of the county, the public has lost trust in him. How as a member of the public do I have 100 percent trust that he can do the job in an unbiased manner when I see how he treats his staff and his opinions about minorities? If this is something that can be done then it should be done.”

Kittleman, who served 10 years in the Senate before becoming county executive, said the lack of a favorable opinion from the attorney general, which does not carry the force of law, shouldn’t deter the legislature from removing Fitzgerald.

“They as a legislative body can say, ‘No, we don’t agree,’ and move forward,” Kittleman said.

‘Dangerous’ path

Todd Eberly, a political science professor at St. Mary’s College of Maryland, said the lack of a standard calls for the General Assembly to be cautious and even to create an objective standard before attempting to remove Fitzgerald.

“Everybody dislikes this person, everybody agrees that he said horrible things,” said Eberly. “The reality is there is a big question here related to when someone who appears to be a reprehensible excuse for a human being, does that rise to the level of overturning an election and removing someone who is subject to election, re-election?”

Eberly, who said he was personally offended by the comments attributed to Fitzgerald, said the absence of an impeachment standard presents a problem for the legislature, one that must be resolved before the state uses the provision to remove an elected official.

“No matter how egregious we find his words or actions it’s more dangerous for the General Assembly to move forward without any clear standard,” Eberly said.

Sen. Robert A. “Bobby” Zirkin, D-Baltimore County and chairman of the Judicial Proceedings Committee, said he found comments attributed to Fitzgerald “repugnant” but said he’s also concerned about the lack of an objective standard for impeachment.

“This is someone who clearly does not belong in that position,” Zirkin said. “That being said, this is one issue that’s never come up. It’s a policy discussion worth having. You shouldn’t take one incident, one individual and do something without an objective standard in place. We don’t have that.”



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