IG fights back after Scott neuters her powers
Scott administration asks judge to halt inspector general lawsuit while it seeks an appeal
Last night’s motion raises the stakes in the battle over the independence and investigative powers of Baltimore’s corruption watchdog
Above: Some of the more than 200 pages redacted by the city law department last January after the inspector general began investigating the SideStep youth diversion program. (Brew file photo)
Told by a judge to promptly turn over records subpoenaed by Baltimore’s fraud, waste and corruption watchdog, the Scott administration wants a higher court to intervene.
The city law department last night asked Circuit Court Judge Pamela J. White to halt her August 14 records production order so that the administration can pursue an interlocutory appeal.
The administration further asked the judge to stop “all other proceedings” in the lawsuit by Inspector General Isabel Mercedes Cummings and two members of the OIG Advisory Board while an appeal plays out.
Such an appeal to a higher court before a final judgment is rendered by a lower court is unusual, according to legal experts, and is rarely granted.
In this case, it requires the city to ask Judge White for the stay, which it did last night. If she denies it, the city can then go to the Appellate Court of Maryland.
Evidence of Fraud
The request intensifies the legal battle that began in January when the city redacted hundreds of pages of financial records requested as part of the OIG’s ongoing investigation of SideStep, a youth diversion program operated by the Mayor’s Office of Neighborhood Safety and Engagement (MONSE).
In a subsequent report, the OIG said it found evidence that the SideStep program paid fraudulent invoices and committed a serious data breach.
In its latest filing, the law department once again argues that Judge White should dismiss the lawsuit, something the judge has refused to do, and to stay her order requiring the city to “promptly” produce the “entirety” of records subpoenaed by the OIG.
The subpoenas were issued by the OIG after City Solicitor Ebony M. Thompson cut off the watchdog’s access to city servers and said all records are subject to attorney-client privilege and limitations found in the Maryland Public Information Act, as determined by the law department.
Judge White flatly rejected the city’s position in her August 14 order, writing, “OIG is not controlled by and does not answer to any directive from the Mayor, City Council or City Solicitor. Rather, OIG reports directly to Baltimore citizens.”
Baltimore City Circuit Court Judge Pamela J. White in a 2014 photo. (wlu.edu)
City: Too Burdensome
After first seeking “clarification” from White, the city is now arguing that executing the judge’s order of full records production would be burdensome and potentially unlawful.
“Even a partial production would include over a terabyte of data and over two million pages of emails,” the motion says, some of which “may be privileged, confidential or otherwise protected.”
Arguing that “the public interest favors appellate resolution before compelled production,” the motion continues:
“This case concerns the respective authority and obligations of City institutions, the scope of OIG administrative subpoena power, and the continued application of privileges and confidentiality protections imposed by State law. Those questions extend beyond a single production dispute. Preserving the status quo permits the appellate court to address them without risking disclosures that may later be determined unlawful.”
Out of 67 OIG requests for data since January, only four have been fulfilled by the law department.
At a meeting with the OIG Advisory Board last week, Cumming said that out of 67 requests for data since January, only four have been fulfilled by the law department, one of them partially.
Cumming said the subpoena backlog issue could be easily resolved if the court ordered the law department to restore her office’s pre-January access to city records.
“Restoring that access would allow the OIG to identify and retrieve the responsive information directly rather than through the City Law Department,” Cumming’s lawyers told the court last Friday, thereby “reducing further delay and the need for continued judicial supervision of the City’s compliance.”
Faced with the city’s latest challenge, Judge White could postpone enforcement of the subpoenas until after she rules on the pending motions for summary judgment and issues a final decision.
• See The Brew’s full coverage of the dispute between the Scott administration and the OIG over the powers of the watchdog office.