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Attorney general's opinion delayed Six weeks after board sought ruling, request still has not been sent


Getting an opinion from the state attorney general is no easy matter, the Board of County Commissioners is finding.

Six weeks ago, Commissioners W. Benjamin Brown and Richard T. Yates thought they had requested a definition of "malfeasance in office" from Attorney General J. Joseph Curran Jr., and a ruling on whether improper conduct could be grounds for the removal of appointed county officials.

But they discovered last week that their Jan. 3 request for an opinion was still being drafted by County Attorney George A. Lahey.

The problem, it seems, is that Lahey had to do a lot more than just ask Curran to issue an opinion. He had to provide the attorney general with a detailed written argument explaining why Lahey thinks a circuit judge erred in December when the judge found a county appointee innocent of malfeasance in office.

Brown and Yates had sought to remove Westminster attorney Robert H. Lennon from the county Planning and Zoning Commission for an alleged violation of the county ethics law, calling it malfeasance in office.

Malfeasance, inefficiency or neglect are the only grounds listed in state law for removal of a planning commission member, but state law does not define those terms.

Judge Eugene M. Lerner said in a Dec. 10 ruling that the county was not only wrong to define malfeasance in office as "mere misconduct," but that Lennon had not violated the county ethics law in the first place.

Malfeasance means a public official "took advantage of his public office and corruptly did an unlawful act or failed, as a result of a corrupt purpose, to do an act required by the duties of his office," the judge ruled.

Brown and Yates contend that the definition is too narrow, saying two attorneys and a University of Baltimore law professor had advised them that an act did not have to be criminal to be defined as malfeasance.

"But the judge said you have to be found guilty as a criminal," Brown said. "That leaves a wide spectrum of behavior we might not be happy with."

For example, an appointed official who utters ethnic, racial or gender slurs during the course of official business might not be guilty of a criminal act, Brown said, but the behavior could be so offensive as to warrant dismissal.

The commissioners couldn't label that kind of behavior inefficiency or neglect, Brown said. And if malfeasance is defined strictly as criminal conduct, the commissioners would be able to do little more than publicly abhor the objectionable behavior.

Because state law is mute as to the meaning of malfeasance, Brown and Yates want Curran's opinion of the "legislative intent" for including malfeasance as one of three reasons for dismissal.

"There is still an issue of conflict here," Brown said. "Our attorney, an attorney from the third-largest law firm in Baltimore PTC and a law professor have agreed on one definition; a judge has given a different one."

Brown said a draft of the request to Curran was given to the commissioners this week and should be sent to the attorney general next week when Lahey returns from vacation.

"While I'm as interested as anybody -- and probably more so than most -- to hear what the attorney general has to say about this, the meter's not running on this as it would have been on an appeal to the court," Brown said.

Official opinions of the attorney general do not have the force of law but are used by state and local officials as prescriptions for the conduct of official business.

Pub Date: 2/14/97

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