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The public, not the courts, should decide [Commentary]

In countries such as Russia and Iran, the public can vote in elections, but the elections are often viewed as less than fully democratic because the courts can eliminate opponents of the ruling regime from running for office. In America, courts have historically played a minimal role in narrowing the field of candidates. But Maryland appears on the verge of setting a precedent to change that.

Last January, in a highly publicized trial, Anne Arundel County Executive John Leopold, then Maryland's most senior Republican office holder, was convicted of misconduct in office. He was incarcerated, fined, required to provide community service and banned from running for office again for five years. In September, after serving his time, Mr. Leopold filed an appeal arguing that he should be allowed to run for office. He wants it ruled upon by February 25, 2014 — the candidate filing deadline for the quadrennial state elections.

But with a date for the hearing yet to be set, it's looking unlikely that the deadline will be met.

Mr. Leopold was indicted by Maryland's state prosecutor and then convicted of two counts of misconduct in office. Both counts involved the misuse of government resources in the immediate months following Mr. Leopold's debilitating back operation. The first involved using government resources for personal gain, notably asking his staff to change his urinary catheter bag. The second involved using government resources for political gain, notably using his security detail to place campaign signs.

Unfortunately, neither the legislative nor executive branch had created clear laws to determine whether such behavior was illegal and, if illegal, the appropriate penalty. The judge was thus forced to rely on common law — one that was lacking close precedents.

Consider the judge's "outrageous conduct" explanation for his ruling on Count 1: "Defendant's demands on the officers and [his personal assistant] to care for his catheter bag are simply: outrageous, egregious and wildly beyond any authority he possesses."

Yet other public officials have arguably acted far worse to their public employees and clients without facing the type of sanctions the judge imposed. And the judge's assertion that such behavior by private employers would be equally outrageous is preposterous. When asked to perform an unwelcome but legal activity, most employees would be expected to do it or find another job.

Many elected officials have used government property for personal or political benefit without being indicted, let alone deprived of candidacy rights. The featured example in the trial involved the previous county executive, Janet Owens. She routinely used her security detail to perform purely personal tasks, such as driving her husband and her to Baltimore for recreational activities, and to perform purely political tasks, such as driving to political events where they handed out her campaign signs during her months-long campaign for Maryland Comptroller.

A post-trial example involves Maryland's attorney general, a declared gubernatorial candidate. Newspaper accounts report he routinely used his security detail for personal and political purposes, such as speeding and blaring sirens to drive to non-emergency events. Yet Maryland's state prosecutor has not charged him with official misconduct. The omission creates an appearance of bias given that the law requires the state prosecutor submit all investigations to the attorney general for review prior to publication, the governor appointed the prosecutor and many insiders had expected Mr. Leopold to run for governor in the opposing political party.

A responsible legislature would have created clear standards for misconduct in office. For example, it could have banned using any government resource to distribute campaign signs. But passing such laws would face stiff opposition because many Maryland elected officials and public employee groups benefit from the privilege of using government resources for personal and political purposes.

Alternatively, the legislature could have enabled use of the recall, which is popular and widely used outside Maryland, to let the public decide what offenses are worthy of firing an elected official. But incumbents generally oppose giving the recall to the public.

The alternative used in the Leopold case, giving an un-elected judge huge discretion in the firing of an elected official, violates core democratic principles, but was tolerable given legislative irresponsibility. Granting a judge similar power over hiring decisions isn't tolerable because the existing election mechanism provides a better alternative. Maryland's Court of Special Appeals should issue its ruling on Mr. Leopold's right to candidacy before the candidate filing deadline because justice delayed is justice denied.

J.H. Snider is the president of iSolon.org, which develops and advocates reforms where elected officials have a conflict of interest with the American public, especially in the use of information technology, to make themselves more democratically accountable. His email is contact@isolon.org.

To respond to this commentary, send an email to talkback@baltimoresun.com. Please include your name and contact information.

Copyright © 2014, The Baltimore Sun
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