- The Enterprise
- The Recorder
Lawyers for the president of the Charles County commissioners have drafted a legal complaint challenging a resolution rescinding most of Candice Quinn Kelly’s powers.
Andrea Leahy-Fucheck, a Calverton-based lawyer who is one of two representing Kelly (D), said it will be on hold pending Tuesday’s board meeting, after which attorneys might file an amended version in Charles County Circuit Court.
The resolution, passed by a majority of the board last week, violates county, state and federal law, according to the draft, a copy of which was provided by Leahy-Fucheck.
If the suit were filed, Kelly would be suing for a temporary restraining order and injunction against the commissioners and their clerk, Denise Ferguson, to prevent them from enacting the resolution, which strips Kelly of authority to sign documents on behalf of the board, approve agendas or make any fiscal decisions.
On Tuesday, Commissioner Reuben B. Collins II (D) accused Kelly of a possible “criminal” act in allegedly seeking access to his county personnel file, including his 2010 W-2 tax form. The board authorized the hiring of an independent lawyer to investigate the claim.
On Wednesday, County Attorney Barbara L. Holtz said via an email from a county spokeswoman that “I have no direction from the County Commissioners with regard to Independent [Counsel].”
On Tuesday, Kelly said she would provide information about an investigation into Collins involving reimbursements for gas when driving a county-owned SUV on government business. But on Wednesday, Kelly referred questions about the resolution to her attorneys and questions about Collins’ accusation specifically to attorney Bruce L. Marcus in Greenbelt.
Marcus could not be reached for comment Wednesday or Thursday.
On Thursday, Collins said he could not elaborate on his allegations because they relate to a pending investigation, but he was unaware of any concerns about his mileage reimbursement forms before Kelly mentioned them Tuesday.
“Which is part of the problem. There’s never been any type of investigation set forth and approved by the board of county commissioners. That gets to other issues from me, is if there was an investigation, in order for it to be impartial, part of the process would include actually contacting and actually interviewing me, if I’m one of the subjects of that investigation,” he said.
During his original statement, Collins said Kelly threatened on Sept. 15, 2011, to destroy him politically. That conversation stemmed from his complaint that Kelly had spoken to a meeting of residents of the Pinefield subdivision, in Collins’ district, without telling him about the meeting, Collins said.
Kelly showed him an email she had sent to a defunct email address of his “and I gave her the benefit of the doubt,” he said. He told her he had complained to the Maryland Independent about not being invited.
“I told her I had sent this letter to the editor. She went ballistic and that’s when she made the comment. What I stated [was] that she would do everything in her power to destroy me politically,” Collins said.
Tax forms privateDuring Tuesday’s meeting, Commissioner Ken Robinson (D) said that even if Collins’ accusation were true, he thought it would not be a crime because he thought elected officials’ tax forms were public information.
This is not the case, a spokesman for the Office of the Maryland Attorney General said Thursday.
“The answer to the question is simple: no,” David Paulson said. “W-2 tax forms are not considered public record and there’s a host of state and federal laws that require they remain private between employer and employee.”
Resolution illegal, suit says
The draft of the lawsuit challenges the resolution on various grounds, including the commissioners’ First Amendment rights to free speech.
The resolution requires that “correspondence” and “the content or any statements and/or testimony on behalf of the Board of Commissioners must receive prior approval by the full Board prior to such statement and/or testimony.”
The restriction of Kelly’s powers violates state and county law, the draft states, including provisions in the Annotated Code of Maryland giving the board president authority to schedule public hearings and requiring that matters passed by the board of commissioners be certified by the president before they can be filed.
The Code of Charles County further gives the president some authority over purchasing, procurement and contracts, and requires that she sign bonds and interest coupons.
“By purporting to strip the President of all powers and duties … a subset of the Commissioners seek to frustrate the will of the people and violate the spirit and intent of the Charles County Code,” the draft states.
Finally, the draft complaint also takes issue with how Kelly’s powers were reduced. To the limited extent that the changes would be permissible, the matter should have been noted on the agenda, examined by the county attorney’s office and passed only after a public hearing, the suit states.
“Although introduced without notice under ‘New Business’ and passed without discussion or a public hearing, Resolution 2012-18 paradoxically states that it is premised on the desire to create transparency and open government,” the draft reads.
Leahy-Fucheck read a prepared statement about the suit: “I would like to say that we have prepared a lawsuit because Resolution 2012-18 contains numerous provisions that are in conflict with state and county laws and because it imposes constraints on free speech that are not permitted in our democracy. Foisted upon the commissioners and the public without notice, the resolution seeks to abridge some of the most basic guarantees in our system of government. This resolution should either be rescinded or declared null and void. Resolution by ambush is an oxymoron and bad government.”
Commissioner Bobby Rucci (D), who voted for the resolution and the independent investigation of Kelly, declined to comment.
Collins and Commissioner Debra M. Davis (D), who voted with Rucci both times, did not return calls Wednesday.
The resolution was disruptive and counterproductive, Commissioner Ken Robinson (D) said. He voted with Kelly.
Describing Tuesday’s meeting, the first after the resolution was passed, Robinson said, “I would just say it was just kind of sad. At times it was painfully slow. For lack of a better analogy, at times it was like watching paint dry. I think it showed, at least for the time being — I truly hope this is very temporary — the pace of government has slowed dramatically. I hope as we move forward we could get back to normal.”
Process error slows change
On Tuesday, Davis tried to remove one obstacle, after Holtz said the resolution’s wording required board votes to be unanimous, not by majority. Holtz said she couldn’t do it because only someone on the losing side of the original vote could make a motion to reconsider.
Holtz said Wednesday that she realized her mistake later in the meeting, after the board had moved on.
“I am guilty of that small error,” she said.
Amending a resolution adopted at a prior meeting would only require the support of three commissioners, and could have been proposed by any of the five, said Colette Collier Trohan of Rockville, an expert on Robert’s Rules of Order, which generally governs commissioner meetings.
“In that case, the motion was absolutely in order. All it required was a majority vote. What [Davis] needed to do is explain exactly which words she wanted to change in the motion, basically bringing this thing back out of the minutes,” the certified professional parliamentarian said. “It’s unfortunate that so many lawyers are put in the position of serving as parliamentarian. It’s a completely different discipline. Law schools don’t teach procedure; it’s not the law. It’s a shame it got to that.”