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The Leopold case: bad behavior, vague crimes

Circuit Judge Dennis M. Sweeney today found Anne Arundel County Executive John Leopold guilty on two counts of misconduct for using his executive security detail for personal and political gain. Reports of his sexual escapades and urinary malfunctions have filled the public with disgust. I've attended every day of the trial. Most remarkable for me is the vague law on which the indictment against Mr. Leopold was based.

Maryland's state prosecutor based his case on Mr. Leopold's general fiduciary responsibility to the public rather than the violation of clear, specific rules.

Now compare how Mr. Leopold used his security detail to the actions of various U.S. presidents and Maryland governors. Mr. Leopold, we are told, used his security detail to guard him while engaging in sexual trysts. But U.S. presidents Franklin D. Roosevelt, John F. Kennedy, Lyndon Johnson and Bill Clinton did the same, as did Maryland Gov. Parris Glendening — and unlike Mr. Leopold, they were all married. In the end, Judge Sweeney threw out the charge relating to these activities.

Mr. Leopold also used his security detail for personal tasks such as changing his catheter and picking up food. But presidents and governors have similar tasks done for them, albeit usually with specialized staff such as the White House chef. Mr. Leopold governs a jurisdiction whose population is comparable to that of some small U.S. states. Arguably, having his police detail or scheduler do some of those tasks, especially when his doctor says he was physically unable to do them himself, was more efficient than having dedicated staff do them. For example, hiring a full-time nurse to do an unpredictable task, such as change a catheter, which takes maybe 10 minutes a day, might seem an extravagant waste of taxpayer money. Nevertheless, the judge determined this activity to be a crime.

Mr. Leopold used his security detail to ferry him around to political events. But so do U.S. presidents and Maryland governors, who engage in what political scientists call the "perpetual campaign." Indeed, it is perfectly legal for White House staff to arrange such events and join the president on Air Force One.

A presidential or gubernatorial analogy for other political activities, notably managing campaign signs, doesn't come to mind. But the judge last week threw out a charge related to the sign allegations, perhaps because to do otherwise would have been embarrassing. Illegal sign placement and removal is both common and rarely prosecuted in Anne Arundel County. The sign that Mr. Leopold is said to have removed and that the prosecutor heralded to the judge was placed illegally on a public right-of-way. Mr. Leopold also put up replacement signs for signs removed illegally by others. Remarkably, at least one officer from Mr. Leopold's security detail didn't know the law regarding signs on public right-of-ways. Mr. Leopold's predecessor had also used her security detail to ferry around and hand out signs.

The most interesting public policy question raised by the Leopold trial is why the applicable rules are so vague and rarely enforced. One important factor, I believe, is that government employees want it that way, especially the public employee unions so powerful in local Maryland politics. Studies of the Hatch Act, the federal statute focused on barring political activity by federal employees, indicate a similar political dynamic.

Consider Mr. Leopold's police detail. At least one member freely admitted to voluntarily contributing to Mr. Leopold's campaign, paying to attend his political events, putting up a Leopold sign in his yard, researching an opponent on his own initiative, and orchestrating these matters with other county employees while on the job. Perhaps this is one reason that the entire police detail sought and received immunity from the prosecutor.

Similarly, when Mr. Leopold first ran for county executive, his Democratic challenger was the elected, uniformed Anne Arundel sheriff, who had worked in the police department for 22 years, was endorsed by the police union, and was an inveterate campaigner. I personally considered him one of the most likable people I ever met. But did the sheriff always take his uniform off while campaigning, always use his email and phone only for official purposes, and always ferry his campaign signs in a separate, personal car? My guess would be: probably not.

An impartial investigation, if any prosecutor cared to undertake it, would reveal plenty of cases of government employees in Anne Arundel — and in jurisdictions throughout Maryland — acting in Leopold-like ways. This would help explain, for example, why four of the county's school board members — which manage the county's largest local government — have either a spouse or child working for the school system.

There is something to be said for going after top politicians to make an example for others; there is also something to be said for treating all people equally under the law.

Judge Sweeney ought not have had to decipher ambiguous legislation to determine whether Mr. Leopold should have been convicted. Ambiguity invites selective and arbitrary law enforcement. If Maryland's political bosses want to exempt themselves and their government employee allies, they should do so explicitly in legislation. Don't leave discretion to a politically appointed prosecutor and force judges, at great taxpayer expense (in this case, more than $500,000), to decipher their intent.

J.H. Snider, an Anne Arundel County resident, is the president of iSolon.org and a fellow at Harvard University's Edmond J. Safra Center for Ethics. His email is contact@isolon.org.

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