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Md. ethics committee won’t disclose outside counsel details

Del. Dan Morhaim. (File)

Del. Dan Morhaim. (File)

ANNAPOLIS — The costs of hiring a lawyer as part of ethics inquiry involving Del. Dan K. Morhaim, D-Baltimore County, remain secret under a confidentiality requirement that protects the work of the Maryland Joint Committee on Legislative Ethics.

State officials have repeatedly declined to name the attorney or firm hired or the financial arrangements. An assistant attorney general assigned to the General Assembly has denied a Maryland Public Information Act request filed by The Daily Record seeking the information. The denial is based on the legal requirement that the committee’s work be kept confidential except in specific circumstances despite the use of public funds.

Names of the 12-member committee as well as its staff and legal counsel are published publicly on a state government website.

Last week, The Daily Record reported that Gregg Bernstein, a former Baltimore City state’s attorney and attorney at Baltimore-based Zuckerman Spaeder, was involved in the ethics review and linked to being the outside counsel brought in by the legislature.

David W. Stamper, an assistant attorney general assigned to the General Assembly, said state law required the contract to remain secret. Release of the contract could, in effect, reveal the nature of the review.

“Subject to certain exceptions not applicable here, ‘any matter before the Joint Ethics Committee, including information relating to any complaint, proceeding, or record’ of the committee is confidential,” Stamper wrote in his denial. “Contracts or other written agreements, if any, concerning the retention of outside counsel by the Joint Ethics Committee necessarily would relate to a complaint or proceeding of the Joint Committee, and none of the exceptions to the confidentiality requirement in (state law) are applicable here.  Accordingly, disclosure of such records is not permitted under the PIA, as the records are, by law, confidential and the inspection of the records would be contrary to State statute.”

Under state law, portions of documents containing information that is required to be withheld must be redacted and the remaining portions should be released if they are not otherwise protected by other portions of state law. Stamper denied subsequent requests to redact what would be considered sensitive information that might reveal scope of work of the outside counsel. Additionally, Stamper denied a request for an alternative method of releasing the firm and attorney hired as well as the financial arrangements.

“While we understand the need for confidentiality for ongoing proceedings in any ethics review, we fail to understand how the disclosure of the identity of outside counsel and the terms of that attorney’s agreement with the ethics committee violates that confidentiality,” said Thomas Baden Jr., editor of The Daily Record. “As the Senate president recently observed, taxpayers have a right to know how their money is being used.”

Open government advocates and press groups questioned the secrecy regarding the hire and financial compensation.

“I think there is a difference between knowing who the attorney is and how much he is being paid and knowing the inner deliberations of the committee,” said Rebecca Snyder, executive director of the Maryland Delaware DC Press Association, of which The Daily Record is a member. “Knowing the identity of the attorney and the terms of the contract is most appropriate for the general public to understand how their tax dollars are being spent.  It’s open knowledge that there is an outside counsel on this matter since Senate President (Thomas V. Mike) Miller announced it, and the public has a right to know about the contract.”

Jennifer Bevan-Dangel, executive director of Common Cause Maryland, said it’s easy to see both sides of the denial argument but questioned the withholding of the information now that the hiring of an outside lawyer has been publicly disclosed.

Bevan-Dangel said the exemption cited by the assistant attorney general “seems to apply if the very fact that an attorney was brought on to investigate is confidential. If the entire investigation is confidential then even knowing there is an attorney, or asking for the information on their contract, would obviously violate the confidentiality of the proceeding. However that is harder to claim since the existence of a case was publicly mentioned.”

“Perhaps the question is now – since the existence of an investigation has been revealed, how does that impact the privilege here?” Bevan-Dangel said. “Since the act of hiring an attorney…has been disclosed, does that waive the privilege – can someone accidentally waive the confidentiality by commenting on it? Arguably, that is now public record and information just related to the attorney should therefore be public as well.”

Off and on for months, members of the committee have met behind closed doors to discuss and review ethical concerns related to the delegate, a leading advocate for medical marijuana in the state, and his paid consulting relationship with a company seeking a license.

Morhaim has been the subject of the ethics review since a September Washington Post story noted Morhaim’s consulting work with Doctor’s Orders, which had sought a license under the state’s medical marijuana program. A correction in that article later stated that Morhaim had filed public disclosure firms that he had worked as a consultant and had earned money for his work but that he didn’t disclose his client because he was advised by the General Assembly’s ethics counsel that state law did not require him to list his clients.

Morhaim’s lawyer has said the delegate followed all directions regarding ethics disclosures.

Miller announced the existence of an outside counsel last month during a Senate floor session. He later elaborated on the work of the counsel. While he declined to name the lawyer he did describe the person as a high-profile male former prosecutor who was hired to investigate Morhaim.

Miller, in an Jan. 24 interview, said he disclosed the hiring of an outside counsel because he believed it already to be public record and also in effort to provide public transparency.

“People need to know how their tax dollars are being spent and I agreed to hire an attorney,” Miller said.

Since the Senate president’s comments, Miller and his staff, have repeatedly refused to disclose the attorney or firm who was hired or what the financial arrangements were made between the legislature and the attorney.

Timothy F. Maloney, Morhaim’s lawyer as well as a former delegate and partner at Greenbelt-based Joseph Greenwald & Laake, decried what he called Miller’s breach of the committee’s confidentiality and said the the Senate president exaggerated the meaning of the hiring of the independent attorney.

Morhaim could potentially agree to waive the confidentiality in part in order to have the contract released. Maloney, in an email response to a reporter, said his client would not likely waive those protections.

“I think Delegate Morhaim would be pretty inconsistent if he complained about breaches of confidentiality involving the special  counsel and then authorized the release,” Maloney wrote.

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