By Glynis Kazanjian
Maryland elections board members held the state elections director and her staff accountable at the first public board meeting since she ruled on a controversial fundraising law without the board’s knowledge or consent.
The ruling by State Election Administrator Linda Lamone allows running mates of gubernatorial candidates who are statewide officeholders to raise money during the legislative session. It benefits Lt. Gov. Anthony Brown but not his chief rival, Attorney General Doug Gansler, because Brown is running with Howard County Executive Ken Ulman, while Gansler’s running mate, Del. Jolene Ivey, serves in the Maryland General Assembly. Like Gansler and Brown, she is barred from fundraising during its session.
The controversial ruling is being challenged in court by Gansler supporters.
Meeting tone was an inquisition
During the meeting, which was more like an inquisition at times, the five Maryland State Board of Elections members learned that only minutes after their Nov. 21 monthly board meeting concluded — during which the discussion of the fundraising law never came up — Lamone and some board staff members met privately with the attorney from the Office of the Attorney General assigned to the state board. They discussed the attorney general’s office recusing itself from the ruling.
“We got blind-sided,” said Rachel McGuckian, a Democratic attorney in Montgomery County who serves on the board, made up of three Democrats and two Republicans.
“I’m not seeing from the statute where we have the authority to regulate that type of conduct,” said Republican board member David McManus, another attorney. “This is an unusual situation. There’s going to be controversy. We have three election lawyers on the board and are free. We could have helped craft this and made the final product more authoritative.”
Later, McGuckian asked for a change in the board by-laws to prevent a similar situation – where there is an absence of an opinion from the attorney general – from happening again.
Elections officials ruled without outside legal guidance
Under normal practice, the State Board of Elections seeks a formal opinion from the attorney general’s office on legal matters affecting state election law.
Despite his candidacy, Gansler’s office did not believe there was a conflict of interest, but agreed to recuse itself anyway for cautionary reasons, attorney general spokesman David Paulson said. They offered Lamone the names of four attorneys who could offer outside legal counsel.
Because Maryland moved its primary to June, fundraising during the legislature’s 90-day annual session from mid-January to mid-April is even more important than previous years. The state board was asked to rule on it last fall.
None of the four attorneys reportedly contacted by the state board staff took on the role.
Jared DeMarinis, the board’s director of candidacy and campaign finance who worked with Lamone on the fundraising guidance memo, told Maryland Reporter last week that none of the four lawyers could be reached. But a Dec. 19 letter to Lamone from the attorney general’s office disputes that.
“For reasons that are unclear, each of those lawyers withdrew from consideration after discussing the advice request with you,” the letter from Deputy Attorney General J.B. Howard stated. “We then contacted two additional fìrms that you suggested, but neither has agreed to undertake the representation. Therefore, we assume that the guidance you issued today [Dec. 19] was provided without advice of outside counsel, and we confirm that it was provided without the advice of the Assistant Attorney General assigned to represent the SBE.”
When questioned by McGuckian about the absence of any legal opinion in the guidance memo, DeMarinis said that the state prosecutor’s office was asked to review the legal language in the ruling, a defense he has stated before.
Lamone, a lawyer herself, told a Senate committee Thursday that the prosecutor had reviewed the ruling for “legal sufficiency.”
State Prosecutor Emmet C. Davitt has said that while his office reviewed hypothetical examples of improper campaign finance behavior, he did not review 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.
Within days of the Dec. 19 ruling a lawsuit was filed. On Dec. 26, Dan Clements of 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, as is Clements.
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.”
Now two weeks into the legislative session, no hearing has been held on the lawsuit. And the Brown-Ulman campaign has refused to say whether Ulman is raising money.