A commission charged with selecting nominees for the state prosecutor’s job on Wednesday nominated an acting state prosecutor and discussed a process for vetting and interviewing applicants for the position.
The State Prosecutor Selection and Disabilities Commission began its work to replace Emmet Davitt, who retired as state prosecutor on July 31 after more than eight years in the position. The commission voted to nominate Deputy State Prosecutor Kelly Madigan — whom Davitt designated as interim state prosecutor before he left office — to continue in the role until a replacement is named. The nomination will be sent to Gov. Larry Hogan for approval.
The commission has 70 days from Hogan’s notification of a vacancy to file a report on applicants it finds legally and professionally qualified. The notification was formally made Aug. 13 and the vacancy has since been advertised. The governor may appoint a nominee or reject the list within 30 days of receiving the report, which is due in mid October.
The state prosecutor investigates election law violations, state ethics law violations and misconduct in office by public officials and employees.
On Wednesday, commission members spent considerable time discussing their authority to appoint an interim or acting state prosecutor, a power that is not in the statute creating the commission.
“There is, in my opinion, no right, perfect solution,” said commission chair Brian DeLeonardo, the Carroll County state’s attorney. “There is a less-wrong solution.”
DeLeonardo said he and fellow commission member Attorney General Brian E. Frosh discussed the issue and looked at case law, which suggests Madigan has apparent authority to act as state prosecutor. Her actions would likely be deemed lawful in the event a defendant challenged her authority, DeLeonardo said.
But M. Christina Hamilton expressed concern about relying on apparent authority.
“I’m a defense attorney; I would wreck that,” said Hamilton, partner at Eisler Hamilton LLC in Rockville.
Former state Sen. Joan Carter Conway suggested the legislature make it clear what should happen when an interim state prosecutor needs to be appointed.
The commission also discussed the kinds of information to request from applicants, including a background check release.
Applications are being accepted until Aug. 30. The commission will then decide how to conduct the interview process, which will depend on the volume of applicants, DeLeonardo said.
In addition to a release allowing the Maryland State Police to conduct a background check, applicants will be asked to sign releases permitting the Attorney Grievance Commission to be contacted for information and to fill out an application similar to what is used by judicial nominating commissions to learn more about an applicant’s career and practice.
“I’m always mindful not to make it so onerous that they run for the hills,” DeLeonardo said.
But Doyle Niemann, a former delegate, said there was only one state prosecutor position and the selection process “should be rigorous.”
The commission members set aside Sept. 17, Sept. 24 and Oct. 8 to conduct interviews and deliberations.
Commission member Roger Manno, a former state senator, was also present Wednesday. Former Del. Galen R. Clagett was formally appointed to the commission Wednesday afternoon but was not present.