Lamson v. Montgomery Cnty.

BERNADETTE F. LAMSON v. MONTGOMERY COUNTY, MARYLAND, et. al.

No. 2409

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2018

May 5, 2020

Circuit Court for Montgomery County

Case No. 4445722V

UNREPORTED

Berger, Beachley, Wells, JJ.

Opinion by Wells, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Appellant, Bernadette Fowler Lamson, filed an ethics complaint with the Montgomery County Ethics Commission, co-appellee. In her complaint, she alleged that the Office of the County Attorney acted unethically when it engaged in practices that, in her words, "traded the prestige of the office for private gain," created conflicts of interest, and engaged in ex parte communications with members of the Ethics Commission. The Ethics Commission dismissed the complaint. Lamson subsequently sought judicial review in the Circuit Court for Montgomery County. The circuit court dismissed the petition, finding that Lamson had no standing.

Lamson appeals and poses two questions for our review, which we reprint verbatim:

1. Whether the circuit court erred in dismissing Appellant's appeal of the Commission's decision for lack of standing?

2. Whether the circuit court erred in failing to disqualify Whiteford from representing the County on grounds of conflict of interest?

We answer both questions in the negative and affirm the circuit court.

FACTUAL AND PROCEDURAL HISTORY

a. The Ethics Complaint

This appeal stems from on-going litigation between Bernadette Lamson and her former employer, the Montgomery County Office of the County Attorney ("the County Attorney"). Starting in September 2015, Lamson filed a series of grievances against the County Attorney with the Merit Systems Protection Board ("MSPB"). Since October 2015, Lamson has filed multiple requests for information from her former employer under the Maryland Public Information Act ("MPIA"). The County hired the law firm ofWhiteford, Taylor, & Preston, L.L.P. ("Whiteford Taylor") to act as counsel in these lawsuits.

The litigation previously made its way to us after the County Attorney denied Lamson's request for access to her supervisor's performance evaluation notes under the MPIA. In an unreported opinion dated August 25, 2017, to be found at 2017 WL 3668171, a panel of this Court affirmed the circuit court's denial of judicial review. Later, the Court of Appeals reversed us in Bernadette Fowler Lamson v. Montgomery County, 460 Md. 349 (2018), and vacated the circuit court's order of dismissal and remanded to that court with instructions to evaluate the propriety of the County Attorney's denial of Lamson's access to the requested information. Id. at 328-29.

As an outgrowth of this litigation, on February 22, 2018, Lamson filed a complaint with the Montgomery County Ethics Commission ("the Ethics Commission"). The complaint stated that her former employer violated county ethics laws by using public funds to hire Whiteford Taylor to defend it against her accusations.

In the second count of the complaint, Lamson claimed the County Attorney violated its own policy of sequestering attorneys to prevent conflicts of interest. Specifically, Lamson alleged that one Assistant County Attorney ("ACA") engaged in conversations with an Ethics Commission hearing officer who was reviewing Lamson's MSPB grievances and then spoke to his colleagues in the County Attorney's office about what was said. Lamson also claimed another ACA spoke with an Ethics Commission hearing officer about a different ACA's handling of one of the MSPB grievances.

The Ethics Commission found no merit in either of Lamson's allegations and dismissed her complaint. In an order dated March 28, 2018, the Ethics Commission wrote, "the complaint does not allege facts sufficient to state a violation of the Ethics Laws of Montgomery County."

b. The County Moves to Dismiss the Petition for Judicial Review

Twenty days later, on April 17, 2018, Lamson filed a petition for judicial review. The County filed a response and moved to dismiss the petition. The Ethics Commission filed its own response.

In its motion to dismiss, the County asserted that Lamson lacked standing to challenge the Ethics Commission's decision. The County maintained that the only parties to the complaint were the Ethics Commission and the County and its subordinate offices. Further, the County argued that even if Lamson were not a party, she is not aggrieved, and thus had no standing.

Lamson opposed dismissal. She asserted that it would be absurd for the only parties to an ethics complaint to be the County and the Ethics Commission. She claimed she became a party when she filed the complaint. As for aggrievement, Lamson insisted that because the County Attorney used public money from the Self-Insurance Fund to finance its defense, the County Attorney had a substantial financial advantage over her. Lamson also claimed she was aggrieved because with the dismissal of the complaint the alleged ex parte communications between the County Attorney and the MSPB would now go unaddressed.

The County countered by reiterating that Lamson is a non-party to the Ethics Commission. The County posited that Lamson was trying to bootstrap her grievance before the MSPB into an ethics complaint and thereby derive aggrieved status. In support of its position, the County cited several out-of-state cases that hold where a statute does not explicitly confer party-status on a complainant, but defines who a party is elsewhere, merely filing an ethics complaint does not confer party-status.

Additionally, the County argued Lamson cannot use judicial review to force the Ethics Commission to act. In the County's opinion, judicial review evaluates the propriety of the Ethics Commission's actions, not to provide Lamson an additional forum to air her grievances. In sum, the County argued that while Lamson may lodge an ethics complaint, only the Ethics Commission may investigate and prosecute unethical behavior.

c. Lamson's Preliminary Motion to Disqualify Whiteford Taylor

Before the circuit court considered the merits of the motion, Lamson moved to disqualify Whiteford Taylor from representing the County at the hearing. Lamson argued that under Maryland Rule of Professional Conduct 1.7, Whiteford Taylor had a non-waivable conflict of interest that prevented it from representing the County. According to Lamson, Whiteford Taylor could not defend the County Attorney before the MSPB and circuit court on an ethics complaint that arose from the MSPB litigation.

In response, the County insisted that there was no conflict of interest. Alternatively, the County claimed that if a conflict existed, it would have to be between Whiteford Taylor, the County, the County Attorney's staff, and, most importantly, Lamson. The County asserted that Whiteford Taylor never had a relationship with Lamson. The County arguedthat for a conflict of interest to arise, Lamson would have to be able to enforce the County's ethics laws, which she cannot.

Lamson conceded Whiteford Taylor had never been her attorneys, but maintained that an un-waivable conflict of interest existed nonetheless. Lamson claimed that the conduct of the County Attorney's staff during the pendency of her grievances before MSPB was the basis of the conflict. Lamson argued that the County should have hired a different law firm, specifically one that had not worked on the MSPB and MPIA litigation. As evidence of a conflict, Lamson offered Whiteford Taylor's billing records which purportedly showed they billed the County for representation in both the ethics complaint and the MSPB grievance matters.

d. The Circuit Court's Ruling

After a hearing, the motions court noted "[t]he basis set out in the motion is that it is contended that Whiteford's representation of its client in this case violates Maryland Rule 1.7." Then, the circuit court discussed how disqualification cases should be analyzed by explaining that,

[t]he Court of Special Appeals gave us a road map, if you will, as to what to do first. Look to see if the moving party has identified a specific violation of a specific rule of professional conduct. Then the Court determines whether there was or was not an actual violation of the rule that's alleged to have been implicated. Court of Special Appeals then says disqualification, nonetheless, is not automatic, and that the court has to bring to bear certain factors to then exercise discretion to determine whether or not to disqualify a law firm and to grant the motion.

The court observed, "that the only party that Whiteford represents is the County as a municipal government. I find Whiteford does not represent and has not entered anappearance on behalf of any of the named individuals who have been named as defendants in this case by plaintiff." And with regard to the Ethics Commission, the court specifically found that they "retained separate counsel, and no motion has been made to disqualify counsel for the [E]thics [C]ommission."

The motions court then ruled on the alleged conflict of interest stating:

I am not persuaded that 1.7 is implicated. I do not see any conflict of interest because Whiteford only has, in my case, one client, and the only case before me, respectfully, is this case, [Civil Case No.] 445722. What, if anything, is going on in other venues before other judicial or administrative officers is not before me, and I have no authority to get involved in those cases. If there are matters that should be properly addressed by those administrative or judicial officers, they certainly can be raised, but I am not persuaded that 1.7 is implicated. I do not see, respectfully, any actual conflict. I do not see any apparent conflict.

Respectfully, the motion [to disqualify Whiteford Taylor] is denied.

The motions court then turned to the County's ...