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Michael Millemann: Vote ‘No’ on Question G

Michael Millemann

Michael Millemann

By the time many voters get past the candidates for office and are down to the bottom of the ballot, they may be tempted to vote “yes” on the remaining measures, whether from voter fatigue or a general trust in our governmental leaders. On this year’s ballot, however, there is a very good reason to vote “no” on Question G. It would gut the ability of the Department of Legislative Reference to operate in a bipartisan, professional, and objective way, as it has for over a century. The department performs essential tasks that often generate political infighting and deeply held partisan battles. It drafts the ordinances for the city, supervises law revisions and administers the city’s ethics code, among other duties.

To keep the department from becoming an agent of the mayor or Baltimore City Council, or of a faction of the council, the Maryland General Assembly in 1906 provided it with some qualified independence. Its governing board includes members outside city government (the president of Johns Hopkins University, the deans of the state’s two law schools, and the director of the Enoch Pratt Library), as well as the mayor, president of the City Council, and City Solicitor. The director of the department, in addition, is a civil servant who may be fired only for cause (incompetence or neglect of duty).

I was reporter for the 1994 Charter Revision Commission chaired by Judge Harry Cole. We studied the Department of Legislative Reference and were impressed with its need for independence to do its job well.

Question G would repeal these critically important protections. The mayor, president of the City Council, and comptroller would appoint the board, and the director would be an at-will employee who could be fired for any (or no) reason by the mayor and president of the council. (The resolution which accompanied the bill was quite explicit. It stated that the purposes of the bill included “making the Director of Legislative Reference removable for any reason rather than just for incompetence or neglect of duty; and allowing the Mayor and the president of the City Council to jointly appoint and remove the Director of Legislative Reference.”) These changes would expose the department to political infighting, with political winners and losers.

Because of the qualified independence of the department, its directors have been outstanding scholars and technicians. This certainly is true of Avery Aisenstark, who has been the director for the past 22 years. Prior to that he advised a Maryland governor, was chief counsel for opinions and advice in the state Office of Attorney General and directed a major revision of Maryland’s code.

Independence is especially important in the department’s array of roles with the city’s ethics board.

Ethics implications

By a separate city law, the director of the Department of Legislative Reference automatically serves as executive director of the city’s Board of Ethics. The ethics board meets regularly and deals with a multitude of ethics problems of city employees that arise throughout the year.

The Department of Legislative Reference, for example, reviews financial disclosure and other statements and reports filed by city employees; conducts the board’s ethics investigations, and in this role, administers oaths and issues subpoenas; facilitates hearings; formally and informally advises the board; provides training about ethics requirements to city officials and employees; maintains the board’s records; prepares proposed rules and law revisions and forms; and prepares an annual report for the board.

For a city to appear to be free of ethical impropriety, the executive director of the ethics board should not have a sword of Damocles hanging over his or her head in conducting ethics investigations and making apolitical recommendations. If Question G passes, that sword would be the new right of the mayor and president of the City Council to fire the director of the Department of Legislative Reference for no reason at all, including at the behest of an unhappy official who has been caught violating ethics laws. I have served on the ethics board and know how inflamed ethics issues can become.  The written materials available to the City Council when it voted to place the proposal on the  Nov. 6 ballot never mentioned the possibly devastating consequences of Question G to the objective culture of the Board of Ethics.

To best serve the citizens of Baltimore, the director of the Department of Legislative Reference must be free to act without fear of political repercussions. This has worked well for over 100 years, and there is simply no reason to change it now.

Michael Millemann is a Maryland attorney and law professor at the University of Maryland Francis King Carey School of Law.

 

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