ANNAPOLIS — When a Rockville paint manufacturer ran into trouble with a contract with the state of Maryland, John Bohanan knew just what to do.
The former Democratic state legislator, who works as a consultant for lobbying firm Cornerstone Government Affairs, opened up conversations with the secretary of the Department of General Services and Lt. Gov. Boyd Rutherford, seeking meetings and reassurances.
Bohanan’s actions on behalf of McCormick Paints — which did retain a lobbyist at Cornerstone and is owned by Bohanan’s brother-in-law — may appear to be lobbying. The former member of the House of Delegates, who was once considered a contender to succeed House Speaker Michael E. Busch, however, said he is not a lobbyist under state law and is not required to register.
“I’m very careful in what I do in this role,” Bohanan said. “I’ve talked to counsel and everything and I don’t see where I did anything wrong.”
Bohanan said at no time did he ever advocate for McCormick to be selected as the winning bidder. Instead, he said, he advocated for fairness in the process as the incumbent contractor sought to overturn the decision. Finally, he said, he did complain about the “shabby treatment” of a Maryland-based business in favor of a large out-of-state corporation.
Bohanan’s actions, while not an overt violation of state lobbying laws, have raised the eyebrows of some in the small world of the state capital lobbying corps and with a watchdog group that advocates for more transparent lobbying and campaign finance laws.
“He probably is (within the law) and tortuously making sure he is not outside the line,” said Jennifer Bevan-Dangel, executive director of Common Cause of Maryland. “However, if McCormick remains a listed client and he is paid by the firm, they need to prove a firewall that shows he is not acting on the interests of the client.”
“It’s tap dancing on quicksand,” Bevan-Dangel said. “It’s clearly the intent of the (lobbying) law for activities like that to be captured. If it’s on us to go clarify the law then fine.”
Consultant versus lobbyist
McCormick Paints engaged Cornerstone on procurement issues in 2015. Former legislator P.J. Hogan is listed as the company’s lobbyist, according to state records. Those same records show that the company has never compensated Cornerstone for any work.
Bohanan, who is not a registered lobbyist or an employee of Cornerstone, has three decades of experience at the federal level as a former aide to Democratic Rep. Steny Hoyer. As a consultant for Cornerstone, Bohanan is tasked with identifying clients in Maryland who also may have interests at the federal level.
Not having to register as a lobbyist comes with some distinct advantages. Bohanan can contribute to candidates and not report those contributions in the biennial reports required by ethics laws. Donations of $2,000 to Busch and $250 Del. Adrienne Jones that he made in 2015 from his still-active campaign account were reported in annual reports to the State Board of Elections.
Bohanan can also solicit donations and serve on host committees raising money for candidates — something regulated lobbyists are barred from doing.
And should Bohanan be required to register as a lobbyist, it could result in his removal from his seat on the Interagency Committee on School Construction, which bars lobbyists from sitting on the five-member panel. The commission, appointed by the governor, Speaker of the House and Senate president, makes recommendations on funding for statewide school construction and renovation projects.
The disputed contract
Bohanan said he began to reach out to Ellington Churchill, the secretary of the Department of General Services, and later to Rutherford when “things went awry” with a 2016 paint supply contract involving McCormick Paints and Avalon Building Supply, a subcontracting company owned by Bohanan’s wife, Mary. The Rockville-based McCormick, at least initially, was successful in unseating Sherwin-Williams, which had held the contract for 27 years.
The contract with the state Department of General Services was for paints and supplies that would be used by all state agencies; it would have also put the winning bidder in position to land work with local agencies and school districts that essentially could piggyback on the state contract.
The one-year state paint contract, which was a blanket purchase order, also had two, one-year renewals. The previous three-year contract had been worth $1.7 million to Sherwin-Williams.
Mary Bohanan, the owner of Avalon Building Supply, told a southern Maryland newspaper that the state contract with McCormick would have been worth $864,000 to her company as the designed minority business enterprise-designated subcontractor.
Sherwin-Williams, the ousted incumbent, appealed the award of the contract to McCormick.
“As you can imagine, things are very much in a state of flux for McCormick Paints,” Bohanan wrote in an Oct. 12, 2016, email from his Cornerstone account to Churchill that was obtained through a Maryland Public Information Act request. “DGS says it cannot issue any kind of affirmative statement to reassure state agencies that the paint contract is not terminated. Therefore getting a final decision on this is of the utmost importance.”
Bohanan goes on to request a meeting between the company and Churchill.
In an Oct. 28 email to Churchill and other senior aides to Gov. Larry Hogan and Rutherford, Bohanan says the company deserves “a meeting and not just directed to talk to legal counsel.”
Bohanan goes on to say that McCormick is entertaining offers to move out of state rather than relocate its headquarters and manufacturing operations to Frederick County.
In another Oct. 28 email to Churchill and Hogan administration officials, Bohanan writes, “To not meet with them and explain why you intend to cancel the contract is not acceptable.”
The emails clearly irritated some members of the Hogan-Rutherford staff.
“Who does this guy think he is talking to?” wrote Richard Tabuteau, an aide to Rutherford, in an email to the lieutenant governor.
‘I’m following the law’
State officials eventually directed McCormick to speak with someone with the attorney general’s office.
Ultimately, Bohanan’s efforts were unsuccessful. The state Department of General Services terminated McCormick’s contract in November, after multiple challenges from Sherwin-Williams, and is rebidding it.
“I have a view of this in terms of this is more of a family matter,” Bohanan said. “That’s why I took all the actions that I did.”
“I’m not doing it for compensation,” Bohanan said. “That’s the law. I’m following the law. And frankly, this is a little different because this is a family situation. I wouldn’t have gone that far on behalf of someone else who just simply asked me, ‘Hey can you pick up the phone and do something?’ as a favor. I would have told them, ‘No, here’s what you need to do. Go talk to your elected representative.'”
In Maryland, certain activities trigger the requirements for registering as a lobbyist with the Maryland State Ethics Commission.
First, the person must engage in an effort to influence legislative or executive action. Additionally, there is a compensation component for those activities — at least $2,500 for activities involving in-person meetings and $5,000 for activities that include phone calls and email efforts, according to Michael Lord, executive director of the commission, who spoke only generally and declined to speak on specific cases.
And while compensation is also a requirement on lobbying on contracts in excess of $100,000, Lord said there is no defined minimum.
“Is there a specific amount?” Lord said. “We’d have to look at the individual circumstances.”
Further complicating the issue is the family connection. Even though Bohanan’s firm was not paid, had the effort to save the contract been successful the former legislator’s wife, who owns a company that was a subcontractor on the deal, would have profited — money that could have benefited Bohanan’s family.
“From a typical definition, that may not be payment but it’s certainly revenue for Bohanan,” said Bevan-Dangel. “If it’s two steps removed, are you ultimately being paid for your lobbying services? The answer is yes.”
State ethics officials say the call isn’t so clear.
“One certainly could make that case to us and we’d look at it, but I can’t address that specifically here,” Lord said.