Judge: Baltimore IG’s records access ‘crushed’ by administration

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A Baltimore judge seemed skeptical Friday morning after hearing Mayor Brandon Scott’s administration’s challenge to the city inspector general recruiting pro bono attorneys to litigate an ongoing dispute over the oversight office’s access to city records.

The watchdog office’s ability to enforce subpoenas is “not just debated, but crushed by the decision-making of the [city] solicitor’s office,” retired Associate Baltimore Circuit Judge Pamela J. White said from the bench. She did not immediately grant or deny the pending motion by the city’s law department to disqualify two pro bono attorneys from representing Inspector General Isabel Mercedes Cumming.

White also made clear she wasn’t deciding on the overall dispute about the city’s interpretation of the Maryland Public Information Act as it applies to requests from the watchdog office. But she said that she found an “irreconcilable conflict” of interest between city lawyers and the inspector general about interpreting the latter’s power to enforce subpoenas and conduct investigations.

The city’s lawyers, White said, had made decisions that “foreclosed, cut off, shut down any enforcement or enforceability option on the part of the Inspector General to pursue its subpoenas and to advance its investigatory responsibility.”

White said that she believed that the “the character and nature” of the inspector general’s office makes it a unit of government that “ought to be represented by counsel that has not demonstrated” such a conflict of interest.

White’s statements came after a two-hour remote hearing on the motion to disqualify attorneys Mark Stichel, of RKW Law Group, and Anthony May, of Nusinov Smith LLP, from representing Cumming and two members of the Inspector General Advisory Board in the pending lawsuit. Stichel is a member of The Daily Record’s Editorial Advisory Board, which is separate from the newsroom.

City lawyers argued at the hearing that Cumming hiring outside counsel violated the city’s charter, which says that the city solicitor “shall be the legal adviser and representative of the City” and its agencies. The charter also sets up requirements, including approval by the Board of Estimates, that need to be satisfied before city agencies recruit outside counsel if representation by the law department “involves an irreconcilable conflict of interest,” but otherwise bars agencies from hiring outside lawyers.

“If she is dissatisfied with the scope of her powers within that charter, she can seek a charter amendment to change the powers and duty that she has,” said Renita Lynne Collins, a city law department attorney. “What she can’t do is invent powers that don’t exist.”

White asked Collins what recourse the inspector general has if she disagrees with how the city solicitor interprets the office’s power to access records.

“The IG has the right to then complete her investigation the best she can and then refer the matter to other agencies,” she said, citing an inspector general’s office manual drafted by Cumming.

May later told the judge that he found that “a bit ironic,” saying that the that manual “cannot override state law,” which he argued allows the inspector general to go to court when it is denied records. He also pushed back against the city’s argument that the inspector general cannot sue the city because it is a part of it.

“If the court believes that, then all of the information that the inspector general seeks should be provided without redaction, because it is the client,” he said.

“If that’s the case, your honor can end this case today,” he said.

The inspector general sued the city in February, seeking for a judge to declare that the oversight office can issue and enforce subpoenas to city agencies without restriction. The suit followed weeks of rising tensions stemming from Scott’s office responding to a subpoena for city financial records with hundreds of redacted pages.

It reached a head when Scott’s administration doubled down on treating the watchdog office’s requests similar to a civilian request under the Maryland Public Information Act, citing a legislative advice letter from Maryland Attorney General Anthony Brown’s office.

Cumming’s advisory board approved a request by the inspector general to recruit pro bono counsel and enforce the subpoena in court. The advisory board’s chairperson, Gayle Guilford, and secretary, James Godey, are also listed as plaintiffs in the case in their official capacities and as city taxpayers.

The mayor’s office declined to comment on the litigation, saying Friday that it would “reserve comment for the appropriate judicial forum.”

“From the beginning, the City has been clear that it is not interested in constraining the OIG’s ability to do its job within the confines of state law,” a mayor’s office spokesperson said, adding that “despite public claims to the contrary, we continue to cooperate with ongoing investigations to facilitate the OIG in doing its lawful work.”