Thursday •  September 9, 2021

Howard County Executive Calvin Ball Accused of Stonewalling the Public Release of Hundreds of Emails Exchanged with Developer Lobbyist

By Steven Keller

 

Let’s say that you were interested in obtaining all communications between your County Executive and a local developer lobbyist.

 

What if the county charged you over $500 for your request and gave you only five emails in return?

 

What would you think if the County claimed that up to 1361 additional emails between these two parties need to be blocked from public release by “deliberative process privilege” (a law that is intended to protect the government’s decision-making process only while decisions are being made)?

 

This is exactly what happened to one Howard County resident.

 

Initial MPIA Requests (Fall 2019)

In October 2019, two Maryland Public Information Act (MPIA) requests were submitted that asked for all communications between Howard County Executive Calvin Ball, his executive staff and a local land use/zoning attorney.  Of note, this person had also been a member of Calvin Ball’s 2019 election transition team and went from being a lobbyist to the Howard County government for just one client in 2018 to representing 11 clients in 2019.

 

The first MPIA request covered the timeframe of January 2016 through December 2018 (during the term of County Councilman Ball).  The second request covered the timeframe of December 2018 through October 2019 (during the term of County Executive Ball).  The county charged this resident a total of $514 for both of these requests — $240 for the first MPIA request (estimated to be 6-8 hours of work) and $274 for the second request (estimated to be 7.5 hours of work).

After these fees were paid, the county conducted a detailed search and issued a response to the requester approximately 3 months later: while 605 emails fell within the MPIA’s search parameters for the first request (Jan 2016 – Dec 2018 timeframe), only 3 of them were released.  While 761 emails fell within the MPIA’s search parameters for the second request (Dec 2018 – Oct 2019 timeframe), only 2 of them were released. 

 

The remaining 1361 emails were “deemed to be either not responsive or are being withheld as the PIA exempts from disclosure information covered by deliberative process privilege”.  No refunds were issued for either request.  Note that the law requires a delineation of which emails were determined to be not responsive and which were being withheld under an exemption.  No such delineations were made.

Burning questions and serious concerns arise from both the potential number of emails exchanged between County Executive Ball and this specific developer lobbyist as well as the lengths to which the Howard County government has gone to prevent the release of the vast majority (99.7%) of them:

 

• What would one local developer lobbyist and Howard County Executive Ball have to discuss in 761 emails exchanged over just 10 months?

 

• The shield of ‘deliberative process privilege’ should only apply to deliberations that the County Executive uses to make policy. Is this a tacit admission that County Executive Ball is using a lobbyist to make policy?

 

• If so, why is County Executive Ball including a private attorney for developers who stand to gain financially from many of the county’s decisions so heavily in his decision-making processes?

 

Former State Delegate Flanagan’s MPIA Request (Summer 2021)

As concerning as the above story is, it is just tip of the iceberg.  In a very interesting coincidence, it was reported by the Maryland Reporter and ScottE’s Blog last week that former Maryland state Delegate Bob Flanagan recently filed an MPIA request (in June 2021) that was almost identical in scope to one of the requests described above, asking for all communications between County Executive Ball and the same developer lobbyist over almost the exact same timeframe (December 2018 – December 2019).   

Mr. Flanagan has filed a complaint in the Howard County Circuit Court against the Howard County government after he ran into very similar stonewalling from the county as the original 2019 requester of this information, having been denied access to 497 out of 748 potentially responsive emails.

 

Before discussing this issue further, a few important details must be mentioned upfront:

 

• The particular land use attorney/developer lobbyist at the center of these MPIA requests previously ran for the District 9B State Delegate position and was Bob Flanagan’s opponent in the 2014 general election. Flanagan won the election by an ~10% margin.

 

• The current Deputy Director of the Howard County Technology and Communication Services department – the same office that processed Flanagan’s MPIA request & conducted the email search and review of potentially responsive emails – was a former business partner of this same land use attorney/lobbyist and served as his campaign manager during his failed run for State Delegate.

 

While no direct evidence exists that this history between Flanagan and these parties impacted the handling of his MPIA request, the official response that Flanagan received from the County raises serious concerns about the integrity of the MPIA process and, more importantly, County Executive Ball’s relationship with this developer lobbyist.

One of the exemptions used to stonewall Flanagan’s request was “attorney-client privilege”.  However, in its response to Flanagan, the county reported that this developer lobbyist had no contracts with the Howard County government and was not serving as their attorney.  In fact, as a local land use attorney & developer lobbyist, he is an attorney for clients attempting to gain from County government decisions.

 

If the County government is truthful in its invocation of the “attorney-client privilege” protection and this developer lobbyist is indeed involved in attorney-client privileged communications, then does that mean that this individual is gaining an unfair advantage over other private business people and anyone doing business with the County?

 

The other exemption used to deny both the majority of Flanagan’s request as well as the vast majority of potentially responsive emails found in the October 2019 request was “deliberative process privilege”. 

The Maryland Attorney General’s Public Access Ombudsman discussed this particular exemption in a report published in 2016  that detailed her investigation of the Howard County Public School System (HCPSS)’s MPIA process.  In this report, she stated the following:

“In all instances, a records custodian must show a reasonable basis for concluding that disclosure would inhibit creative debate and discussion within or among agencies or would impair the integrity of the agency’s decision-making process.  See NLRB v. Sears, 421 U.S. 132, 151 (1975). “

 

 She also stated:

 

“Usually, the exemption applies only to pre-decisional disclosure — once the decision is made, the effect on internal discussions would have ceased.” , and

 

“Only deliberations are protected — not underlying facts or purely objective information.“

 

Since the County stated in their response to Flanagan that this developer lobbyist was not on contract as a consultant, why is the County claiming that he is part of the government’s decision-making process, especially when he and his clients stand to gain financially from County government decisions?

 

Also, if acting in good faith, how can the County invoke “deliberative process privilege” for hundreds of emails that were sent/received 20 to 32 months ago?  “Deliberative process privilege” is intended to protect immediate and on-going government decision-making processes.  What County decisions that involve both the County Executive and this developer lobbyist could possibly still be ongoing over two years later? 

As mentioned on page 6 of Flanagan’s legal complaint,

 

“Allowing the public access to information concerning a deliberative process that occurred in the past, may have little or no adverse impact on the deliberative process.  On the other hand, the benefit to allow the public to understand and evaluate how government is working, is enduring.”

 

The County cited no laws that would prevent the disclosure of these emails.  The decision to withhold documents from the public on grounds of the “deliberative process privilege” and/or “attorney-client privilege” is discretionary.  County Executive Ball could have released any number of these emails but actively chose not to do so.  Is this what he means by his election campaign promises of “transparent leadership” and his claim of being “a champion for…..an inclusive and transparent government”?

 

Howard County MPIA Process Inconsistencies

 

Since the October 2019 & June 2021 requests are so similar in scope, it is possible to directly compare them in terms of number of potentially responsive emails, number of emails released, time taken to process the requests, fees charged etc.  Shown below is a comparison between how the Howard County government handled each of these requests:

So many concerning questions are raised by the above comparison:

 

• Why did former State Delegate Flanagan’s June 2021 request yield only 748 potentially responsive emails while the October 2019 request yielded 761?  Flanagan’s request was for communications exchanged over a timeframe that was two months wider in scope than the older request.  (December 2018 – December 2019 versus December 2018 – October 2019).

 

• Why was the time to process 748 emails in June 2021 estimated to take 18.5 hours while the time to process 761 emails in October 2019 estimated to take 7.5 hours?

 

• Why did the county charge former Delegate Flanagan over three times as much to review 748 emails in June 2021 ($863) compared to what they charged a county resident to review 761 emails in November 2019 ($274)? This was more than a 300% increase in price.

 

• Why did it take the county 2 to 2.5 times as long to complete the two requests submitted by the common Howard County resident than it did to complete the request by a former state Delegate (13-18 weeks versus 7 weeks)?

 

• Why did the County give former Delegate Flanagan 251 out of 748 emails in their response to his 2021 request but only released 2 out of 761 emails in their response to the almost-identical 2019 request? The person who submitted the October 2019 requests did contest the initial decision with the County Ombudsman — this is a story that will be told in a future HoCo Watchdogs post.  After narrowing the scope, a few hundred emails were released out of the 1361 originally withheld, but this came after many hours spent crafting legal challenges and many months of discussions with the Ombudsman.  Why didn’t this county resident receive at least as many emails as Flanagan did for their initial response, without needing to go through the painful process of challenging the decision with the Ombudsman?

 

The above comparison brings up many concerns about how the County is handling MPIA processes.  These concerns are compounded by the history between former Delegate Flanagan, the developer lobbyist and his former business partner & election campaign manager, who is currently the Deputy Director of the Howard County government office that processes MPIA requests for the County Executive. 

 

As previously mentioned, while no evidence exists that this history between Flanagan and these parties impacted how his MPIA request was processed, the optics certainly do not look good.  Whether intentional or not, there are glaring inconsistencies between the handling of these requests that should concern all Howard County residents who value transparency, accountability, fairness and equal protections/rights. 

 

Concluding Thoughts

 

Wild variations in fees charged to separate county residents who asked for almost the same information…

 

The Public Information request of a State Delegate fulfilled in less than half the time that it took to fulfill the request of a standard Howard County taxpayer and given hundreds more emails in their response for a very similar request…

 

…and the pièce de resistance: a stunning 1300+ emails exchanged between County Executive Ball and a developer lobbyist – someone who directly may benefit from county government decisions — withheld from public release with the claim that the release of these emails would harm the government’s decision-making process.

 

Howard County taxpayers deserve to know:

 

• What County Executive Ball is discussing so frequently with this particular developer lobbyist,

 

• Why County Executive Ball refused to publicly release 99% of the emails exchanged between them, and

 

• Why this developer lobbyist is supposedly so heavily involved in County Executive Ball’s decision-making processes.

 

Howard County residents deserve a local government that processes their Maryland Public Information Act requests with consistency and fairness:

 

• Fees charged should be accurate, reasonable and affordable enough for even the most income-challenged residents to handle.

 

• Minimal variations should occur for processing times of similar-scoped requests and the results produced by similar requests should be consistent, regardless of when the request is submitted or the position/public reputation of the requester.

 

• The legal reasons for withholding any emails from public release should be clearly, completely and truthfully explained – not just handwaved away by listing the name of a legal privilege that requires an expensive & time-consuming formal legal complaint to challenge.

 

County Executive Ball needs to embrace his campaign promise of “transparent government” and live up to his claim of being a “a champion for an inclusive and transparent government” by:

 

• Releasing unredacted copies of all remaining 1350+ emails exchanged between himself, his staff and this developer lobbyist from January 2016 through December 2019.

 

• Cleaning up the County MPIA office to ensure consistency, equal treatment, efficient processing , reasonable & affordable fees, and full transparency except for the most immediately sensitive deliberations.