Published on January 14th, 2014 | by Len Lazarick0
Elections chief ruled on governor’s race fundraising without board approval and with little legal advice
By Glynis Kazanjian
The Maryland State Board of Elections never approved an official ruling that allows Howard County Executive Ken Ulman, running for lieutenant governor with current Lt. Gov. Anthony Brown, to raise money during the legislative session even though Attorney General Douglas Gansler and his running mate Del. Jolene Ivey cannot.
Under state election law, the state board is charged with managing and supervising “the conduct of elections in the state,” including preparing summaries of election law that relate to campaign finance activity.
But in the circumstances surrounding a controversial fundraising election law affecting the governor’s race, Chief Election Administrator Linda Lamone, who is appointed by the five-member board, never asked the board to review a fundraising guidance letter she sent Dec. 19.
Charles Thomann, a Republican member of the state board, said he hasn’t attended any meetings where the fundraising guidelines were discussed, nor does he have any knowledge of any occurring.
Other sources close to the board said some of its members are incensed over the appearance that the board had a role in the fundraising memorandum, when they had not.
The State Board of Elections was asked to rule on whether or not running mates of state office holders — including the governor and lieutenant governor — could continue to raise campaign funds for the 2014 gubernatorial primary during the 90-day legislative session, which began Jan. 8.
The Dec. 19 state board ruling allowing fundraising to continue during session immediately prompted a lawsuit. The matter is currently being appealed in court.
Attorney General’s office recused in matter
Normally, the state board gets legal advice from the Office of the Attorney General (OAG) on state election law. Sometimes board members will have firsthand knowledge of a pending request and sometimes they won’t. In this case, however, Lamone asked the OAG to recuse itself from issuing a legal opinion because Attorney General Doug Gansler is running for governor. The board had no knowledge of the request.
OAG spokesman David Paulson said the office didn’t believe there would be a direct conflict of interest with issuing an opinion — there are over 200 attorneys employed in their office — but they agreed to allow outside counsel to advise the board anyway. The names of four attorneys were given to the state board to contact.
Jared DeMarinis, the state board director of candidacy and campaign finance, who worked with Lamone on the fundraising guidance memo, said none of the four lawyers could be reached.
Instead, Lamone asked the Office of the State Prosecutor to review the memo for “legal sufficiency,” DeMarinis said. State Prosecutor Emmet C. Davitt and his deputy, Thomas M. McDonough, did review the memo, but Davitt said it was not the role of the state prosecutor’s office to offer legal opinions. No written response was rendered.
Davitt said while his office did look at areas laid out in the memo of “Examples of Improper Activity During the Legislative Session,” which is listed on the last page of the four-page memorandum, he emphasized that his office did not consider the legal interpretation in the memo – especially the language that concluded Maryland campaign finance law “clearly” considers running mates to be separate candidates.
“We offered no legal guidance” on that, Davitt said.
Without the knowledge or consent of the board, the Dec. 19th memo was issued by Lamone, giving the green light to running mates of the 2014 gubernatorial campaign to raise money during the 90-day legislative session.
Matter to be decided in court
On Dec. 26, the law firm Salsbury, Clements, Bekman, Marder and Adkins filed a lawsuit on behalf of two Baltimore residents, naming Lamone, Brown and Ulman as defendants. Both of the plaintiffs are Gansler supporters.
The suit argues that section 13-235(b) of Maryland state law prohibits any person acting on behalf of, or representing the campaign interests of the governor or lieutenant governor from raising campaign funds during the legislative session.
“The two positions are one team, inseparable, coordinated and working together by law and by their filing,” the suit states. “The two positions do not require separate votes to be cast at the ballot box, and in fact, there is only one button to push, one lever to pull, or one box to mark.”
“I think the opinion is dead wrong,” said Dan Clements, the attorney representing the two Baltimore residents who filed the lawsuit. “It’s one ticket, one vote.”
Election law prohibits most statewide office holders from raising money during session, but the question of their running mates has never really been an issue until now, since the primary election month was changed from September to June, which immediately follows Maryland’s annual legislative session.
A hearing date for the court case has yet to be set. The courts are running pretty slowly, Clements said.
Many questions, including who actually contacted the four attorneys and whether the state board of elections has the authority to issue legal elections guidelines without appropriate legal guidance, remain unanswered. DeMarinis said due to “pending litigation” he could not comment.
DeMarinis did provide the following statement on Lamone’s authority to act on campaign finance matters without the Board’s consent: “Since at least September 14, 2007, the Board has expressly delegated that duty to the Administrator and her staff.”
Some exceptions to fundraising rule
There are already a number of exceptions to the ban on fundraising during the legislative session. For instance, Del. Heather Mizeur, another Democrat running for governor, can continue to raise small contributions because she is seeking to use Maryland’s public financing mechanism. Harford County Executive David Craig can continue to raise money, even though he is running for governor with Del. Jeannie Haddaway. Craig is also considering accepting public financing.
Members of the legislature running for county offices can also continue to raise money. This includes Sen. Barry Glassman running for Harford County executive; Sen. Allan Kittleman running for Howard County executive; and Del. Steve Schuh, running for Anne Arundel County executive.