The Appellate Court of Maryland issued an order yesterday denying the city’s attempt to suspend the proceedings in the lawsuit filed by Inspector General Isabel Mercedes Cumming to enforce her administrative subpoenas for records while the city pursued an appeal of Judge Pamela White’s order that the city produce the documents.

There’s been no final decision yet by Circuit Court Judge White on the merits of the city’s claim that the Maryland Public Information Act (MPIA) prohibits release of certain records to the IG.

The appellate court acknowledged the city’s legitimate interest in making sure that any release of records did not violate the MPIA. But it found that no irreparable harm would be done by turning the records over to the IG, who at this point is restricted from disseminating them any further.

There’s a hearing tomorrow on the IG’s motion for summary judgment tomorrow, which means that a final decision could be imminent that holds that giving the IG access to records for the purpose of investigating fraud, waste and abuse, even if the MPIA protects the records from release to the general public, does not violate the law.

If Judge White issues a final decision declaring that the MPIA does not restrict the power of the IG to gain access to records in the custody of city agencies by the issuance of administrative subpoenas, the city will then have to decide whether or not to appeal it.

If the city does appeal, it will put the lie to the only arguable justification it has for cutting off the OIG’s access to records in the first place – and will fully expose the motives of Mayor Brandon Scott and his administration for what they are.

Scott recently characterized the city’s aggressive tactics in the lawsuit filed by Inspector General Cumming to enforce her administrative subpoenas as “a normal part of every lawsuit.” That’s not true.

The Baltimore Banner described the city as taking “a hard-charging approach to the case.” Yeah, hard-charging and increasingly out of line.

The mayor and his team are becoming so desperate that they made fools of themselves in their latest attempt to salvage their weak case by discrediting Cumming.

Bad Decisions from the Start

The Cumming lawsuit, filed in February, was a consequence of the questionable opinion by City Solicitor Ebony Thompson that the longstanding access by the OIG to certain city records violated the Maryland Public Information Act (MPIA) and must be stopped.

That opinion, and the abrupt withdrawal of the OIG’s access to city records that accompanied it, came on the heels of the initiation by an OIG investigation into the Mayor’s Office of Neighborhood Safety and Engagement (MONSE).

Under the city charter, the IG is an independent city official not under the control of the mayor or city council. Needless to say, Cumming did not agree with Thompson’s opinion and wanted her subpoenas enforced.

• FULL COVERAGE OF THE RECORDS ACCESS DISPUTE

Despite being at odds with the IG, Thompon did not take the action necessary under Article VII, Section 24(c) of the City Charter to authorize independent counsel paid for by the city to assist Cumming with enforcement of subpoenas with which city agencies had not complied.

Thompson was sharply criticized for failing to take that action in an order issued by Judge White.

The mayor and his lawyers have made fools of themselves attempting to salvage their weak case by discrediting Cumming.

The judge found that “a direct conflict appeared as the Solicitor would not act to engage independent counsel for OIG to enforce its subpoenas while contemporaneously arguing to restrict or avoid MONSE’s responses to those subpoenas.”

In the course of a decision that one expert described as going “out of its way to identify serious problems with the city solicitor and what the judge concluded was a conflict of interest,” Judge White chided Thompson for refusing “to permit OIG to retain private counsel despite the obvious conflicts.”

In summary, Thompson picked a fight with the IG that in my opinion never needed to be fought and then, as described by Judge White, attempted to deny the IG access to legal counsel to protect her legitimate interest in gaining access to the information that she needs to do her job.

Cumming was forced to seek the services of private attorneys willing to file the lawsuit on a pro bono basis. City residents owe a debt of gratitude to the private attorneys who answered the call.

Personal Attack Backfires

The order issued by Judge White on August 14 denying the city’s motion to dismiss the lawsuit and ordering the production of documents reinforced earlier indications that Judge White took a dim view of the city’s argument that the MPIA prohibited city agencies from complying with the IG’s subpoenas for records in their custody.

The judge’s apparent (and legitimate) disdain for the city’s legal arguments appeared to set off panic within the Scott administration.

Although the city’s failed effort to delay production of documents until there is a final judgment in the case was reasonable on its face, other steps it has taken certainly were not.

The city responded to Judge White’s August 14 order by opening another front in its defense of the IG’s lawsuit: An attack on Cumming’s integrity and motives for accessing certain information.

It made the highly unusual move of releasing to the Banner a copy of a July 24 letter to Cumming from the mayor’s chief of staff, John David Merrill, and Deputy City Solicitor Stephen Salsbury that the city said would be filed as an exhibit in the case.

The letter alleges a “concerning trend of retaliatory behavior you have undertaken against [a “Senior Employee”] after the employee “raised legitimate concerns about overreach and abuse of authority from your office.”

Elected officials striking out at an IG is nothing new – just ask Kelly Madigan.

An ad hominem attack on a local IG by elected officials nervous about watchdog investigations is nothing new. Merrill did it previously in a letter condemning Cumming’s personal social posts to the city Ethics Board.

The tactic was employed rigorously against former Baltimore County IG Kelly Madigan by the administrations of former County Executive Johnny Olszewski and his successor, Kathy Klausmeier, as well as by the likely next county executive, Councilman Julian E. Jones Jr.

The latest smear by Merrill and Deputy Solicitor Salsbury backfired spectacularly.

It turned out that the “Senior Employee” referred to in the July 24 letter was the subject of an IG investigation initiated in the spring of 2025 that resulted in the issuance of a report in March of this year.

The IG concluded that the employee violated city policy and fostered a hostile work environment by using the city’s computer and messaging platform to threaten violence against other employees, including threats to “fucking kill [name redacted]” and “choke the shit out of [name redacted].”

In other words, the “Senior Employee” (who somehow hung onto their job) was retaliating against Cumming, not vice versa.

Misguided Request for Jury Trial

The city filed a request for a jury trial in the case, presumably to have a jury resolve any factual dispute that must be resolved to determine the outcome of the lawsuit.

The problem with the request is that there is no such factual dispute.

The outcome turns on a single legal question: Do the provisions in the MPIA that bar disclosure of certain records and information in the custody of city agencies to members of the public also bar access by the IG to those records as mandated by Article X, Section 4 of the city charter for purposes of investigating fraud, waste and abuse?

That’s a matter of law for a judge, not a jury, to decide.

There is no credible evidence that Cumming abused her authority under Article X, Section 4 of the charter in accessing records.

Even if she did deliberately access records inappropriately, that might be grounds for her removal from office by the IG Advisory Board, but it would not be a basis for holding that the position of inspector general as established by the voters in Article X, Section 1 of the charter must be denied access to the records as a matter of law.

Consequently, the “dispute” that the city has tried to generate over the motive for and propriety of Cumming’s access to certain records is not relevant to a material issue in the case. Consequently, there is no need to have a jury resolve it.

Another Smokescreen

Mayor Scott has tried to portray the IG lawsuit against the notion that statewide legislation is needed to regulate access to records by local IGs to protect the privacy of members of the public.

It’s another smokescreen intended to persuade the truly gullible that his real concern in this matter is the privacy of individuals.

For one thing, local IGs can’t perform their duty to investigate fraud, waste and abuse by employees, contractors, applicants for services and other individuals and organizations receiving local government funds without access to information not available to the public under the MPIA.

For another, IGs are under the same duty as any other government employee to maintain the confidentiality of information protected from public disclosure by the MPIA.

The only statewide legislation that is needed is a bill passed by the Maryland General Assembly that clarifies the right of IGs to access public records without facing roadblocks erected by local officials to thwart their investigations. It should have been passed in this year’s session.

How far out on a limb are the mayor and his team willing to go?

Thompson stated in her February opinion that failure to implement restrictions on the OIG’s access to records was necessary to reduce “the risk to the city” because such failure “would constitute a knowing and willful violation of the MPIA.”

That risk goes away if a decision by Judge White ordering the city to comply with the IG’s subpoenas is not appealed and is allowed to stand.

Under settled Maryland law, an unappealed judgment by a circuit court judge is binding on the parties.

For all practical purposes, that decision by Judge White would end the possibility that the city or one of its employees could be held liable for knowingly and willfully violating the MPIA by heeding Judge White’s order and complying with a subpoena.

In other words, the problem identified by City Solicitor Thompson would be solved. So why would the Scott administration appeal?

There would be only one reason, and that reason would be that cutting off the OIG’s access to records has never been about protecting the city from liability.

Instead, it has always been about protecting Scott from political embarrassment or worse.

Conclusion

The wait for Judge White’s decision after tomorrow’s hearing will likely be a tense one for the mayor.

A ruling adverse to the position taken by the city, if not appealed, would allow the OIG to resume the investigations that Scott has been trying to curtail.

If he does appeal, it would be proof positive that the reason he cut off the OIG’s access to records was to hide something from the public.

Buoyed by a surge in popularity because of the historic decline of murders in Baltimore, Scott appears to believe that he can bluff and bluster his way through the controversy he created.

Councilman Mark Conway has been the OIG’s sole ally on the city council. Conway’s removal last week as chair of the council’s Public Safety Committee demonstrated that the mayor has little to fear from the gutless wonders on the council.

But if Scott and his lawyers appeal a decision that allows the OIG to do its job, even Scott’s most hardcore supporters will believe that he is afraid the OIG will find out that taxpayers’ money is being misused.

It would cement his legacy as a mayor who accomplished some good things, but also tried to kill off the only watchdog protecting residents from waste and corruption that occurred during his administration.

A lot hangs in the balance for city residents as well.

An outcome adverse to the IG means the end of the office as an effective entity, unless and until the General Assembly overcomes its indifference to governmental transparency and accountability and fixes the problem.

• David A. Plymyer retired as Anne Arundel County Attorney after 31 years in the county law office. He can be reached at dplymyer@comcast.net and Twitter @dplymyer.