Washington Post Article
Nirappil, Fenit, Maryland lawmaker reprimanded by ethics panel over marijuana business ties, March 2, 2017.
The Washington Post‘s follow-up article can be found here.
This ethics investigation provides a new perspective on why last year, when Del. Morhaim was chair of the Health and Government Operations Committee, he had reason to prevent the “Hillary Clinton email retention bill” from coming up for a vote. Maryland lacks an email retention provision for government officials, a problem that the Hillary Clinton email scandal highlighted (unlike Maryland, the Federal government does have an email retention requirement). The ethics investigation concluded that there was “not sufficient evidence” against Morhaim. But perhaps if the government agencies Morhaim communicated with, notably the Maryland Medical Cannabis Commission, had been required to retain their emails, such evidence would have existed. Ethics rules are largely about appearances because the truth about motives is impossible to ascertain. And the appearance of Morhaim’s vigorous opposition to government email transparency now looks remarkably self-serving. For background on the bill Morhaim prevented his committee from voting on, see the Washington Post’s “If we’re going to talk about email, let’s talk about Maryland, too” November 11, 2016.
Reply from Reporter Fenit Nirappil
We actually were able to get hundreds of emails from the cannabis commission about Morhaim or sent to and from Morhaim, and the ethics investigators piggybacked off our request to examine the same emails. It’s worth noting lawmakers are not required to release their emails, and indeed, Morhaim communicates using his personal email.
Here’s our story based on the emails:
J.H. Snider’s Reply to Mr. Nirappil
Here are my concerns:
1) The subject of Morhaim’s influence reported: “It would be unacceptable for any commissioner to have ex parte discussions with anyone associated with a potential licensee, particularly discussions that could provide unfair guidance or an advantage.” This suggests that the commission would have a conflict of interest in reporting any such communication.
2) As a legislator and as you’ve noted in your reply, Morhaim is exempt from the Public Information Act, so you would have to rely solely on the Commission’s trustworthiness in releasing emails. That is, you cannot ask both the sender and receiver for the same emails and then use one set to check the accuracy of the other.
3) Maryland has no government email retention policy, so it is easy for public officials to delete controversial emails that would reflect badly on their agency.
4) Other than the court of public opinion (of which the Washington Post is a very important part), Maryland has no effective enforcement system or penalties for deleting emails in response to a PIA request for controversial emails.
5) Maryland commissioners routinely circumvent the spirit and letter of the PIA when it suits their political self-interest. See my study on eLighthouse.info of the Anne Arundel School Board Nominating Commission, a commission established by Maryland statute.
6) These problems have led a half dozen or more Maryland legislators to introduce legislation requiring Maryland to implement a government email retention policy. It was this legislation that Morhaim prevented his committee from voting on in 2016. Similar legislation is currently under consideration by the same committee no longer under his control.
In short, the commission had a conflict of interest in releasing emails that would make itself look bad and there are no effective legal check to prevent it from acting on this conflict. Whether it acted on this conflict should be irrelevant. All that should count is the appearance.
Baltimore Sun Article
This provides a new perspective on why last year, when Del. Morhaim was chair of the Health and Government Operations Committee, he might have prevented allowing the “Hillary Clinton email retention bill” from coming up for a vote. Maryland lacks an email retention provision for government officials, a problem that the Hillary Clinton email scandal highlighted (unlike Maryland, the Federal government does have an email retention requirement). This article reports that there was “not sufficient evidence” against Morhaim. But perhaps if the government agencies Morhaim communicated with had been required to retain their emails, such evidence would have existed. Regardless of the truth, the information in this article makes the appearance of Morhaim’s vigorous opposition to government email transparency look awful. For background on the bill Morhaim opposed, see the Baltimore Sun’s “The Clinton email scandal: a double standard?” April 1, 2015.
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