The puzzling story behind the sad story of (yet another) tiff between Larry Hogan and Marilyn Mosby
Money intended for witness protection in Baltimore has been held hostage to a legal dispute for over three years. Why hasn’t the city State’s Attorney taken the obvious step to resolve the dispute?
According to a story first reported by the Baltimore Banner, eight million dollars in state funds to help relocate victims and other witnesses of crimes in Baltimore has gone unspent because of a disagreement over the process for getting the money into the hands of the Baltimore City State’s Attorney’s Office (SAO).
The disagreement is between the SAO and the governor’s office. Given the long-running feud between State’s Attorney Marilyn Mosby and Maryland Governor Larry Hogan, the bureaucratic standoff is hardly surprising.
What is surprising, however, is that Mosby never turned to the Maryland Attorney General (AG) for help. The AG has been the arbiter of many similar disputes elsewhere because of the manner in which state’s attorney’s offices and certain other state entities are funded by local governments.
The AG’s office confirmed that neither Mosby or Hogan asked for its opinion.
It is not surprising that the governor did not ask the AG for his opinion because he knew that the AG was likely to disagree with him, as explained below. That does not excuse his failure to consult the AG, but it may explain it.
The disagreement
The SAO claims that the money must be routed through the city’s budgetary and fiscal process, which includes approval by the Board of Estimates, before it can spend the money.
The Governor’s Office of Crime Prevention, Youth, and Victim Services disagrees, claiming that the money can be distributed directly to the SAO. It argues that disbursing the funds through the state Victim and Witness Protection and Relocation Program administered under the supervision of the State’s Attorneys’ Coordination Council obviates the need to comply with the city’s budgetary process.
The resolution of the disagreement
It is state law, not city law, that compels the state’s attorney to comply with the city’s budgetary process. This therefore is a disagreement over an interpretation of state law, and the AG is required by Article V, Section 3 of the Maryland Constitution to provide a legal opinion in writing to a governor or state’s attorney who requests one.
There are enough AG opinions on the subject that it is possible to predict with a fair degree of confidence what the AG would say.
The AG would say that the SAO is subject to the city’s budget and fiscal process, and state money intended for the SAO therefore must go through that process before being spent by the SAO. In other words, that the Governor’s Office of Crime Prevention, Youth, and Victim Services is wrong.
He also would say, however, that the city has no right to disapprove of the expenditure of the state witness protection funds if the State’s Attorney asserts that the funding is necessary to perform the duties of her office.
Even if my prediction is wrong, the dispute would be resolved one way or the other. And long before now.
A review of the applicable law
The position of State’s Attorney of Baltimore City is established by Article V, § 7 of the Maryland Constitution, and the State’s Attorney is a state elected official, not a city official. The General Assembly decided, however, that counties (and the City of Baltimore) should bear responsibility for funding state’s attorney’s offices, setting the stage for potential controversy.
Section § 16–106 of the Local Government Article of the State Code provides that a state’s attorney is subject to the “budget and fiscal policies and purchasing laws” of a county. “County” is defined at Section 1–101(e) of the Local Government Article as including the City of Baltimore.
Although that means that the city SAO is funded alongside city agencies in the city’s annual budget, different ground rules apply because of the status of the State’s Attorney as a state constitutional officer. Those ground rules have been the subject of a number of AG opinions interpreting the statute.
The Court of Appeals held in Murphy v. Yates, 276 Md. 475 (1975) that the status of a state’s attorney as a constitutional officer precludes even the General Assembly from curtailing a State’s Attorney’s powers and duties. Consequently, the AG has cautioned on multiple occasions that the budgetary authority conferred on the counties must be carefully exercised to avoid infringing on the independent judgment of a state’s attorney on how to perform his or her duties under the Maryland Constitution.
In one opinion, 74 Op. Att’y Gen. 263 (1989), the AG addressed the disapproval by the Howard County chief administrative officer of payment for out-of-state travel by employees of the Howard County State’s Attorney for purposes of a specific type of training. The AG stated that, while the county was within its rights to ask the state’s attorney to find a less expensive means of securing the training, the county could not disapprove the funding if the state’s attorney asserted that doing so “would pose unacceptable interference with the conduct” of his office.
In a later opinion, 80 Op. Att’y Gen. 295 (1995), the AG stated that the State’s Attorney for Prince George’s County was required to “submit to county budget procedures, not county budget control.” In other words, the AG undoubtedly would conclude that the city Board of Estimates could not use its procedural authority to block or otherwise control the expenditure of funds earmarked by the state for the Baltimore SAO.
The AG opinions suggest a way forward in the matter at hand: Get the funds to the city, have the Board of Estimates rubber stamp its approval based on Ms. Mosby’s assertion that she needs the money to protect witnesses and victims, and move on.
It is long past time for this squabble to end
The legal tension arising from local funding of state constitutional officers can produce substantive conflicts over the overall adequacy of funding that are difficult to resolve. This is not one of them. This is a minor, easily resolved dispute over procedure.
Hogan was holding the money and was not going to release it unless the SAO agreed to accept it directly, bypassing the city budgetary process. Mosby believed that state law required the money to go through the city budgetary process.
So, why didn’t she act to break the impasse by referring it to the appropriate “referee,” the Maryland Attorney General? The conclusion appears inescapable that, once again, Mosby’s ineptitude sold residents of the city short.
Shame on the state’s attorney for her apparent ignorance of the AG’s role. And shame on the governor for exploiting her ignorance to the detriment of victims and other witnesses of crimes in Baltimore that the eight million dollars was intended to protect.
