Scrutiny Required for County Attorney Nominee

By David Plymyer.

The appointment of James R. Benjamin, Jr. by Baltimore County Executive Johnny Olszewski to be the new County Attorney is subject to confirmation by an affirmative vote of at least four of the seven members of the County Council. If fewer than four members vote in favor of confirmation the appointment is rejected. The council has scheduled a public hearing on the proposed appointment of Mr. Benjamin on November 12th and a vote on November 18th.

It is absolutely essential that the County Council interview Mr. Benjamin at the hearing on November 12th and exercise its independent judgment when it votes whether or not to confirm his appointment on November 18th. I couldn’t agree more with the sentiment expressed by Councilman David Marks.

Mr. Marks told the Baltimore Sun that he expects the council to put “more scrutiny” on this appointment than seen with other appointments, because the county attorney sometimes will find himself in the middle of disputes between the county executive and county council on how an issue should be handled. According to Mr. Marks: “It is somewhat unique that he is the legal advisor to both the council and the executive, and for that reason I believe there will be some in depth discussion about his appointment.”

The position of county attorney is unique. The county attorney is the legal advisor to both the county executive and the county council. The requirement that the county attorney provide objective legal advice to both branches of county government is one of the checks and balances on executive and legislative power built into the county charter.

The Baltimore County Charter, like most county charters in Maryland, specifies that with limited exceptions “no office, department, board, commission or other agency or branch of the county government shall have any authority or power to employ or retain any legal counsel other than the county attorney.” The intent of the charter is that all county officials get the benefit of the best possible legal advice the county has to offer, and that the county attorney serves as an honest broker when there are legal squabbles among agencies and officials.

There are times when a county attorney must opine on whether a proposal by one branch or the other of county government exceeds its authority. The accuracy of such an opinion is an essential check on governmental power, and the credibility of the opinion depends on the reputation of the county attorney for impartiality and objectivity.

A principle that is sound in theory, but challenging in practice

The concept of getting legal advice from a single, competent source is sound in theory. While there is a place for the adversary system of justice, it is not within the internal workings of local government. Two things, however, are required for the principle to work in practice: A county executive who understands and accepts the proper role of the county attorney and, more importantly, a county attorney with the integrity to adhere to that role under pressure.

The county and its agencies are the clients of the county attorney, not the individual county officials through which the county acts. When rendering advice and issuing opinions as required by Section 508 of the county charter to those officials who act in various capacities on behalf of the county, the county attorney is under an ethical duty in each instance to “exercise independent professional judgment and render candid advice” as set forth in the Maryland Attorneys’ Rules of Professional Conduct.

To Mr. Marks and other members of the County Council:

Ask Mr. Benjamin at his confirmation hearing if he understands and accepts the role described above. Would he be willing to tell the council when a measure proposed by the county executive is outside the limits of the law? Does he concur that he would have an ethical duty to render candid advice to the council even if the county executive disapproves of the advice?

Yes, the county attorney is under a duty of candor as a matter of law, but it is important to hear him acknowledge it in his own words, on the record. Let there be no doubt of Mr. Benjamin’s personal commitment to the requirements of the job, the most important of which is integrity.

To Mr. Benjamin:

Don’t take the job unless the county executive assures you that he understands and accepts the role of the county attorney as described above. And, even if given such assurance, refuse the position unless you’re willing to adhere to that role in the event that he changes his mind.

Yes, the job is a good one and the salary, $225,000, is attractive. But for the sake of the citizens of Baltimore County walk away from the job unless you are prepared to give advice to one branch of government that the other branch of government doesn’t want to hear.

To Mr. Olszewski:

Please tell both Mr. Benjamin and the county council that you expect Mr. Benjamin to be as candid in his advice to the county council as he is in his advice to you. Tell them that you don’t expect personal loyalty from Mr. Benjamin; you expect him to be loyal to the duties of his position and the ethical tenets of his profession.

Yes, there may be a time or two when his candor with the council throws cold water on something that you want to do. But in the long run having a county attorney with a reputation for integrity and independence of judgment will inure not only to your benefit, but also to the benefit of county citizens.

Mr. Plymyer retired in 2014 as the County Attorney for Anne Arundel County. He resides in Catonsville. (email: Twitter: @dplymyer) His commentary on local and state government has appeared in publications including the Baltimore Sun, Washington Post, Baltimore Brew, Maryland Matters and the Maryland Daily Record.



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